New York’s rules for making a will are strict and the Surrogate’s Court applies them literally. A will signed in the wrong place, witnessed by the wrong people or published to no one may be refused probate no matter how carefully it was written. We draft wills for individuals and families throughout New York that comply with the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act, and we supervise the signing so that the document will stand. This page explains what a will does, what the statute requires, what goes into a New York will and how it is later probated or challenged.
What a will does
A will directs how your property passes at death. In New York it lets you name the beneficiaries of your real estate, accounts and personal property; appoint an executor to carry out the plan; nominate a guardian for minor children; create testamentary trusts for children, dependents with special needs or other beneficiaries; make charitable gifts; and say who gets the tangible things, the heirlooms and the sentimental items.
Without a valid will the estate passes under the intestacy statute, EPTL § 4-1.1, which applies one fixed scheme to everyone. A person who dies leaving a spouse and children, for example, leaves the spouse the first $50,000 plus half of the rest, and the children share the other half. For a blended family, an unmarried couple or anyone with a complicated estate, that result is rarely what they would have chosen.
What EPTL § 3-2.1 requires
The execution requirements are set out in EPTL § 3-2.1. The testator must be at least 18 and of sound mind, which means understanding the nature of the act, the extent of their property and the natural objects of their bounty, usually the immediate family. The will must be in writing; New York does not recognize oral or handwritten wills except in narrow circumstances involving members of the armed forces during armed conflict and mariners at sea.
The testator must sign at the end of the document. Anything written after the signature may be disregarded, and in some cases can invalidate part of the will. A testator who cannot sign may direct another person to sign in their presence. The will must be signed in the presence of at least two attesting witnesses, who must themselves sign within thirty days. The witnesses should be disinterested, because a witness who is also a beneficiary can forfeit the bequest under EPTL § 3-3.2. Finally the testator must publish the will, that is, declare to the witnesses that the document is their last will and testament.
A will that misses any of these can be denied probate. Every will we prepare is executed under our supervision and includes a self-proving affidavit, which lets the will be admitted without calling the witnesses and reduces the openings for a challenge.
Why a lawyer rather than a form
Online will services do not know New York’s execution rules and do not know your family. An attorney-drafted will is executed and witnessed in accordance with the statute, which is most of the protection against a later contest. It is written for your circumstances: a blended family, a business, real property in more than one county, a beneficiary with special needs, or an estate large enough to attract New York estate tax. On that last point, New York taxes estates separately from the federal government. For deaths in 2026 the New York exclusion is $7.35 million, and because of the so-called cliff an estate that exceeds 105% of the threshold is taxed on its entire value, not just the excess. Will drafting coordinated with trust planning can reduce or eliminate that tax.
A properly documented execution, with the testator’s capacity recorded at the time, also deters contests based on undue influence, lack of capacity or fraud. And the will is only one document: we integrate it with the power of attorney, health care proxy, living will and any revocable or irrevocable trust so that the plan works as a whole.
What goes into a New York will
| Provision | What it does |
|---|---|
| Identification | The testator’s full legal name and county of residence, and a declaration revoking all prior wills. |
| Debts and expenses | Directions for paying funeral expenses, administration costs and outstanding debts. |
| Specific bequests | Gifts of particular items, such as jewelry, art or a vehicle, or of specific sums of money. |
| Residuary clause | Disposition of everything left after the specific bequests, debts and expenses. |
| Testamentary trusts | Trusts created within the will for minors, disabled beneficiaries or anyone who needs ongoing oversight. |
| Executor | Appointment of a primary and successor executor, with provisions on bond and compensation. |
| Guardians | Nomination of guardians for minor children, subject to court approval. |
| Executor’s powers | Authority to sell real estate, manage investments and administer the estate efficiently. |
| Tax allocation | Which assets bear the estate taxes, and in what order. |
Choosing an executor and a guardian
The executor takes the estate through probate, pays the debts and taxes and distributes what is left. Under SCPA § 707 a person under 18, an incompetent, a non-domiciliary alien (with limited exceptions), a felon, or someone the court finds unfit for substance abuse, dishonesty, want of understanding or similar reasons cannot serve. Beyond eligibility, we help clients choose someone trustworthy and organized, and where the family dynamics or the size of the estate call for it, we advise on naming a corporate fiduciary.
For parents of minor children the guardianship nomination may be the most important clause in the will. Under SCPA Article 17 the Surrogate’s Court gives significant weight to the parent’s choice, while keeping the authority to make sure the appointment serves the child’s best interests. We help parents choose a guardian and a successor, and where appropriate separate the guardianship of the child from the management of the child’s money.
Updating and revoking a will
A will should be revisited after a marriage or divorce, the birth or adoption of a child or grandchild, the death of a beneficiary, executor or guardian, a significant change in assets such as an inheritance, business sale or real estate purchase, a move into or out of New York, a change in the tax law, or an estrangement or reconciliation within the family. Marriage does not by itself revoke a New York will, but a later divorce revokes the provisions in favor of the former spouse under EPTL § 5-1.4. A will may be revoked by a later writing, by physically destroying it with intent to revoke, or by operation of law. We usually recommend a new will rather than a codicil, because layered documents invite ambiguity.
How wills are contested, and how we draft against it
Even a properly executed will can be challenged. The recognized grounds in New York are lack of testamentary capacity, undue influence, fraud, improper execution under EPTL § 3-2.1, and revocation by a later document or physical act; our will contest page explains each. During drafting and execution we document capacity thoroughly, record the signing on video when appropriate, and where it suits the client include an in terrorem clause, which penalizes a beneficiary who contests and loses.
The surviving spouse’s right of election
A New York will cannot disinherit a spouse. Under EPTL § 5-1.1-A a surviving spouse may elect against the will and take the greater of $50,000 or one-third of the net estate. Where a client wants to limit a spouse’s share, most often in a second marriage with children from the first, the planning happens outside the will: a prenuptial or postnuptial agreement, lifetime gifts, or trust structures designed with the election in mind.
What happens to the will at death
The will is offered for probate in the Surrogate’s Court of the county where the decedent was domiciled. The original will and a petition are filed; the distributees (the heirs at law) and the beneficiaries are given notice; the will is proved, usually by the self-proving affidavit and otherwise by the witnesses’ testimony; letters testamentary issue to the executor; the executor marshals the assets, pays debts and taxes and accounts; and the estate is distributed. An estate with personal property under $50,000 may qualify for the simplified voluntary administration procedure under SCPA Article 13.
How we prepare a will
We start with a consultation about your family, your assets, your goals and your concerns. We review your holdings, beneficiary designations and how each asset is titled, so that the will and the non-probate assets work together. We draft in clear, unambiguous language, you review and revise the draft until it says what you mean, and we supervise the signing with the witnesses and a notary. Afterwards we advise on safekeeping and on when to come back for a review.
Whether you need a straightforward will or a full estate plan with trusts, business succession and tax planning, call us at 212-233-1233 or email [email protected] to arrange a consultation.
