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Free Sample Will Form for New York, NY
You can download the free sample New York Will Form here. It is a form for the simplest New York will possible: it gives your entire estate to one person and nothing more. Read the instructions and warnings below before you use it. If you would rather have an attorney draft your will, email us at [email protected].
Instructions for Using the Free Sample New York Will Form
The person making the will has to say to the witnesses: “This is my Will.”
The person making the will must sign in the presence of the witnesses — the witnesses must see him/her sign.
Witnesses must sign in the appropriate spaces.
Warnings
Even if you think you are using this form the right way, it still may not work, and it is not guaranteed to work. Only use it in a very small and very simple estate, and only when you are absolutely sure that the will is not going to be contested. The form only works to give your entire estate to one person; if you modify it to do something else, it may not work the way you expect. Without the advice of an estate attorney you are taking a risk that the will may not do what you intend and may not stand up to a challenge if one is ever brought. The safer course is to hire a New York estate attorney and get it done properly; it is our view that you need a lawyer to make a will.
You may use this form only for yourself. Preparing a will for someone else is the unauthorized practice of law, which is illegal and can carry criminal penalties. No support is provided for this form; use it at your own risk.
Later Changes
Any changes you make to the will after it has been signed in front of the witnesses will not be valid. If you want to change something, you need to make a new will.
What a Complete New York Will Should Include
This downloadable form covers the bare minimum: identification, a single bequest, signatures and witness attestation. A will that an attorney would actually prepare for you covers substantially more ground. The standard package generally includes the following clauses.
| Clause | What it does |
|---|---|
| Identification and revocation | Identifies the testator by full legal name and address, declares the document to be a will, and revokes all prior wills and codicils. |
| Family disclosure | Identifies the testator’s spouse, children and grandchildren. This helps interpretation and creates evidence of testamentary capacity if a contest arises later. |
| Funeral and burial wishes | Not legally binding in New York, but they guide the executor and family. |
| Specific bequests | Gifts of particular property or amounts to particular people. The clauses must address contingencies: what happens if the named recipient does not survive, and what happens if the property is no longer owned. |
| Tangible personal property | Often refers to a separate written memorandum that the testator can update without re-executing the will. |
| Residuary clause | Disposes of everything not specifically given. For most testators this is the heart of the will. |
| Contingent provisions | What happens if the primary residuary beneficiary does not survive. Many cases turn on these clauses because the primary beneficiary did not in fact survive. |
| Executor and guardian nominations | Names the executor, a backup, and (if there are minor children) a guardian and backup guardian. |
| Trustee nominations | Names the trustee, with backups, for any testamentary trust created in the will. |
| Tax apportionment | Directs how estate taxes are paid: from the residue, from specific bequests, or apportioned among beneficiaries. |
| Powers clause | Grants the executor specific administrative powers that supplement the statutory powers. |
| In terrorem clause | If desired, disinherits anyone who contests the will. |
| Attestation and witness signatures | The formal close of the will. |
| Self-proving affidavit | A notarized statement from the witnesses confirming the formalities, which simplifies probate. |
What Goes Wrong With Form Wills
The form wills we see in probate disputes share a few recurring problems.
| Problem | Consequence |
|---|---|
| Failed witness attestation | The witnesses signed in different places, did not actually observe the testator sign, were not present when the testator declared the document to be a will, or signed on different days more than 30 days apart. EPTL § 3-2.1 requires specific formalities, and even small deviations can support a contest. |
| Beneficiary as witness | A beneficiary who serves as a witness faces having their gift voided or reduced under EPTL § 3-3.2. Form users sometimes pick witnesses without knowing this rule. |
| Ambiguous identification | Beneficiaries identified by first name only, by a nickname, or by a vague description like “my favorite niece.” After death, the reader cannot tell who was meant, and ambiguity proceedings follow. |
| Outdated relationships | The form was filled out years ago naming a spouse who is now an ex-spouse, a parent who has since died, or a beneficiary the testator no longer wants to benefit. Wills should be reviewed periodically. |
| Property the testator no longer owns | A specific bequest of property the testator later sold or transferred fails under the doctrine of ademption. Form users sometimes describe assets in ways that no longer match what they own. |
| No coordination with non-probate assets | The will does not control retirement accounts, life insurance, joint accounts or trust assets. A form will that leaves an IRA to one person while the beneficiary designation names someone else does not change the designation. The beneficiary designation wins. |
| Tax exposure not addressed | For an estate over the New York exclusion, or for someone with substantial life insurance, retirement assets and other resources, the absence of tax planning in the will can produce a large and unnecessary tax bill. |
When a Form Might Be Enough, and When It Is Not
A form like this one can produce a valid will in the narrowest case: an unmarried person with no children, a modest estate, one primary beneficiary, no anticipated dispute, and a willingness to redo the will whenever life changes. For that narrow case, the form may work.
For almost anyone else, it is not enough. Married people, parents, business owners, real estate owners, anyone with substantial retirement assets, anyone with a beneficiary who has special needs, anyone with a blended family, anyone with federal or state estate tax exposure, and anyone who anticipates a contest from any family member needs a will drafted by an attorney who understands the situation. Our guide to how to write a will explains what each of those situations calls for.
New York Statutes That Can Defeat a Form Will
Beyond the witnessing formalities, several New York statutes can change the outcome of a simple will in ways the form does not warn about.
| Statute | Effect on a simple will |
|---|---|
| Signature at the end (EPTL § 3-2.1) | The testator must sign at the end of the document. Anything written below the signature may be disregarded by the court, so nothing dispositive should ever appear after the signature line. |
| Intestacy fallback (EPTL § 4-1.1) | If the only named beneficiary dies before the testator and no alternate is named, the estate passes by intestacy to the testator’s closest relatives under the statute, not where the testator intended. Always name a contingent beneficiary. |
| Executor disqualification (SCPA § 707) | Certain people cannot serve as executor, including convicted felons and, in some circumstances, non-domiciliary aliens. Naming a disqualified executor with no successor leaves the court to appoint someone else. |
| Spousal elective share (EPTL § 5-1.1-A) | A will cannot effectively disinherit a surviving spouse. The spouse can elect against the will and take a statutory share of the estate regardless of what the will says. |
| Handwritten wills (EPTL § 3-2.2) | Holographic wills, meaning handwritten wills not executed with the statutory formalities, are generally not valid in New York, with narrow exceptions for members of the armed forces and mariners at sea. |
Why the Self-Proving Affidavit Matters at Probate
A self-proving affidavit is a notarized statement signed by the testator and both witnesses at the same time the will is signed. Under SCPA § 1406, a will accompanied by a properly executed affidavit can generally be admitted to probate without locating the witnesses years later to testify. Without it, the executor must track down the original witnesses at the time of probate, and if a witness has died, moved or cannot be found, the estate faces additional cost and delay. The affidavit costs nothing extra to include; it only requires a notary present at the signing.
Where to Keep the Original Will
Only the original signed will is probated. A copy is generally insufficient unless a lost-will proceeding proves both the will’s contents and its validity, which is an expensive and uncertain process. If you use a form, store the signed original somewhere safe and make sure your executor knows where to find it.
| Where | Trade-off |
|---|---|
| Home safe | Free and convenient, but vulnerable to fire and theft. |
| Safe deposit box | Secure, but can create access problems after death if the box is in the decedent’s sole name. |
| Attorney’s office | Many attorneys hold original wills for their clients. |
| Surrogate’s Court deposit | Under SCPA § 2507, the Surrogate’s Court will accept an original will for safekeeping during the testator’s lifetime for a small fee. |
Whichever option you choose, make sure your named executor and at least one family member know where the original is kept.
Having a Will Drafted Instead
We realize you came here looking for a free New York will, and for the narrow case described above the form may serve. If your situation is anything more than that, we can draft a will that fits it. Call us at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
