Sample NY Will – Free Download

You can download here, Sample NY Will Form.

Read the Instructions and Warnings Carefully!

INSTRUCTIONS

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 NY will form the right way, it still may not work and it’s not guaranteed to work. Best hire a NY estate attorney and get it done the right way.

This is a form for the simplest NY Will possible. Only use this sample NY Will form in very small and very simple estates and when you are absolutely sure that the Will is not going to be contested.

This form only works to give your entire estate to one person. If you’re going to modify this form to do something else, it may not work the way you expect it to.

You are taking a risk – without the advice of an estate attorney, the Will may not work the way you expect and may not stand up to a Will challenge if one is ever brought.

You can only use this sample will form for yourself. Using it for someone else constitutes unauthorized practice of law and is illegal and can subject a person to criminal penalties.

We realize that you are looking for a free NY will, but using one without an attorney is not a good idea. It is our belief that you need a lawyer to make a will.

LATER CHANGES

Any changes you make to the will after it gets signed in front of witnesses will not be valid – you’ll need to make a new NY Will.

No support is provided for this form. Use it at your own risk.

Why Will Drafting Looks Easier Than It Is

From the outside, a will looks like a relatively simple document. You list your property, you name the people who get it, you sign at the bottom, and you have two witnesses confirm your signature. The form available for download on this page reflects that simplicity. The problem is that the simple appearance hides a substantial body of law that determines whether the document will actually work when the time comes.

New York's execution formalities are spelled out in EPTL § 3-2.1. The testator must sign at the end of the will, must declare to the witnesses that the document is the testator's will, must request the witnesses to sign, and the witnesses must sign within 30 days of each other in the testator's presence. The witnesses must be over 18 and competent. They should not be beneficiaries under the will (a beneficiary-witness can still witness, but the gift to them may be void or reduced under EPTL § 3-3.2). These technical requirements are the kind of thing that a homemade will gets wrong frequently.

What the Form Cannot Do

The sample form on this page is designed for the simplest possible situation: one person leaving everything to one other person. It does not address — and is not safe to use for — any of the following situations:

• Multiple beneficiaries with different shares.
• Specific bequests (a particular item or amount to a specific person).
• Gifts to minors who need a guardian or trust to hold their share.
• Gifts to charities, especially without identifying a specific organization.
• Property held in joint names or with beneficiary designations (the will does not control those assets at all).
• Disinheriting a spouse (the elective share will override).
• Disinheriting an heir who is likely to contest.
• Tax planning to use the federal or New York estate tax exemption.
• Business succession.
• Real estate in multiple states.
• Special-needs planning for a disabled beneficiary.
• Pets you want cared for after death.
• Funeral or burial instructions you want to be binding.

Any of these situations calls for a real estate plan, not a form. The cost of a properly drafted will is small compared to the cost of an estate dispute, an unintended tax bill, or a beneficiary who loses their share because the form did not handle their situation.

What a Real Will Should Include

A well-drafted New York will generally includes the following sections, at a minimum:

• Identification clause — the testator's full legal name, address, and a statement that this is the testator's will.
• Revocation clause — revoking all prior wills and codicils.
• Family disclosure — naming the testator's spouse, children, and grandchildren (or stating that there are none in a particular category), which helps interpretation and provides evidence in case of a future contest.
• Specific bequests — gifts of particular items or amounts to particular people.
• Tangible personal property clause — disposing of household items, jewelry, and other personal possessions, often by reference to a separate written memorandum.
• Residuary clause — disposing of everything else not specifically given away.
• Contingent residuary clause — what happens if the primary residuary beneficiary does not survive.
• Executor nomination — naming the executor, successor executor, and any waiver of bond.
• Guardian nomination for any minor children of the testator.
• Trustee nomination for any trust created in the will.
• Tax apportionment clause — directing how any estate taxes are to be paid.
• In terrorem clause, if desired, disinheriting anyone who contests the will.
• Powers clause — granting the executor specific administrative powers.
• Attestation clause — the statement at the end signed by the witnesses confirming the formalities were observed.

Each of these sections has nuances. Boilerplate language is generally fine for routine items, but the specific bequest and residuary sections need to be tailored to the testator's actual family and assets.

The Self-Proving Affidavit

New York wills can include a self-proving affidavit — a notarized statement by the witnesses confirming that the will was properly executed. The affidavit is signed at the time the will is signed, with all three signatures (testator and two witnesses) before a notary. The self-proving affidavit makes it much easier to admit the will to probate later, because the witnesses' testimony does not have to be obtained again at the time of probate. They have already testified, in effect, at the signing.

Without a self-proving affidavit, the witnesses have to be located and asked to confirm their signatures at the time of probate. If they cannot be found, additional steps are needed. The self-proving affidavit costs nothing extra to include and is one of the easiest pieces of insurance you can build into a will.

Storage of the Original Will

The original signed will is what gets probated. Copies do not work unless the original has been lost and the petitioner can prove the contents and the validity of the lost will. Storage of the original is therefore important. Options include:

• Home safe. Convenient and free, but vulnerable to fire and theft.
• Safe deposit box. Secure but can create access problems after death if the box is in the testator's name alone.
• Attorney's office. Many attorneys store original wills for clients. This protects the document but requires the family to know which attorney to contact.
• New York City Surrogate's Court will deposit. The Surrogate's Court will accept original wills for deposit during the testator's lifetime, holding them sealed until presented for probate.

Whatever method is chosen, the executor and at least one family member should know where the original is.

Updating the Will

A will should be reviewed every few years and after every major life event — marriage, divorce, birth of a child, death of a beneficiary or named executor, significant change in assets, move to a different state, change in tax law. Updates can be made by codicil (a separate document amending the existing will) or by signing a new will. New wills are usually preferable to codicils because they avoid the risk that the codicil and the original will be inconsistent or that one will be lost.