What Are the Legal Requirements for Valid Wills in New York?

What is the Importance of Having a Will?

A last will and testament is often the foundation upon which virtually every comprehensive estate plan is built. While your estate planning needs may require additional tools like trusts, the powers of attorney documents, deeds, and more, your will is arguably among the most important.

If you die without a will in New York, state law will dictate how your remaining property and assets are distributed to beneficiaries and heirs. This is the process known as intestate succession. Under the law, when a person dies without a last will and testament, they have no say in how their property is divided upon death. This means that if you wish for certain beneficiaries to inherit certain assets, you must create a will that establishes your final wishes.

Additionally, wills simplify the probate process for your surviving family members. To learn more about probate court and other benefits of creating a will, please contact our estate planning law firm to discuss your goals and interests in your initial consultation today.

What Are the Requirements for Creating a Valid Will in the State of New York?

Creating a will doesn’t have to be a complicated or expensive legal matter. An estate planning lawyer can help you develop a personalized estate plan that suits your needs, with a strong will at the center of it.

However, for a will to be considered legally valid in New York, it must meet certain requirements.

Is There an Age Requirement?

All New York adults are strongly encouraged to create a last will and testament. You must be at least 18 years of age in order to create or revise a will. Additionally, you must be of sound mind and memory when creating the will so that it is clear from a legal perspective that you are aware of the choices you are making in the distribution of assets upon your death.

What is Testamentary Capacity and Intent?

For a will to be valid, the will’s creator (the testator) must be of sound mind. In a will, the testator specifies how they want their personal property and accounts to be distributed to designated beneficiaries. If the testator is not of sound mind and memory, they may lack the testamentary capacity necessary to draft a valid will. In such cases, the testator may face allegations of lacking full mental capacity and awareness of their choices, thus creating the opportunity to challenge the validity of the will.

Is the Writing of the Will Voluntary?

All wills must be voluntarily written and signed by the testator. If the testator was coerced or pressured into writing a will, or if they were under undue influence from a third party, the will shall not be considered a valid legal document. If you believe that the testator was influenced or coerced into creating a will, please contact our lawyer to discuss your case in more detail.

Has the Signing of the Will Been Witnessed?

In addition to the testator signing the will, two witnesses must also sign it. The witnesses are required to sign the will within 30 days of observing the testator sign it or hearing confirmation that the signature is authentic. The witnesses must be 18 years old or older, and, whenever possible, they must be witnesses who do not stand to benefit from the will. The witnesses do not need to be in the same room as the testator at the time of the signature.

Have You Selected the Executor?

One of the core decisions you must make when drafting a last will and testament is naming an executor (also known as a personal representative). The executor of the estate manages estate administration after the testator’s death. The executor will be responsible for settling debts, paying estate taxes, locating beneficiaries, and distributing remaining assets.

What is an Attestation Clause?

Though not required by New York law, many estate planning attorneys strongly encourage their clients to include an attestation clause in their wills. These clauses are legal documents signed by witnesses affirming that they witnessed the testator signing the will and that they believed that the testator had the necessary mental capacity to understand their actions. Including an attestation clause provides additional evidence of the will’s validity.

Do You Need Your Will to Be Notarized?

New York law does not require that wills be notarized. However, signing the will with your two witnesses in the company of a notary is considered a self-proving affidavit. Some New York courts accept this affidavit instead of requiring testimonies from witnesses in probate court. Signing your will before a notary can help speed up the probate process.

What Could Render a Will Invalid in New York State?

There are several consequences for an improperly executed will. Improperly drafted wills could result in delays during the probate process, family strife, unforeseen tax implications, emotional hardships, and potentially even state intervention.

If the test date isn’t of sound mind at the time of writing their will, the legal document could be deemed invalid. Additionally, the law requires that at least two witnesses sign the document. If the will hasn’t been witnessed, then there is no one who can confirm that the actual creator signed the will.

Allegations of fraud or undue influence can challenge the validity of a will in estate litigation.

Are Oral or Handwritten Wills Valid in NY?

In some states, oral or holographic (handwritten) wills are legally acceptable. In the state of New York, certain jurisdictions may recognize oral and holographic wills, but the state generally does not consider them valid except under one unique circumstance. Typically, these nontraditional wills are only considered valid by New York law if they were created by members of the United States armed forces during active duty and declared war or armed conflict.

Schedule a Consultation with an Experienced New York Estate Planning Attorney Today

If you are looking to write, revise, or revoke your last will and testament, it is strongly recommended that you retain professional legal counsel from an experienced estate planning lawyer. Our law firm has years of experience dedicated to estate planning law in New York State, and we would be proud to represent your interests as you pursue your estate planning goals.

To learn more about the legal services our attorney offers, please call our Cooperstown, New York, law firm at 607-303-6554 to schedule your case evaluation.