A last will and testament is a sworn statement that declares how and to whom property will be distributed upon the death of the testator -- the person making the will. A will also appoints an executor to manage the transfer of the property according to the wishes of the deceased. The basic requirements to make a last will and testament in New York are outlined in the New York Estates, Powers and Trusts Code.
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Anyone over the age of majority who is also of sound mind and memory can make a last will and testament. In New York, this means anyone over the age of 18. Generally, a “sound mind and memory” indicates that the person making the will has not been declared incompetent in any legal proceeding and is aware of what the will means and what it does.
Requirements for Construction
For a last will and testament to be valid in New York, it must be made in writing and witnessed. However, under certain circumstances, New York recognizes nuncupative and holographic last wills and testaments. A nuncupative will is dictated verbally to at least two witnesses, while a holographic will is made in the testator’s own handwriting, but unwitnessed. These types of wills are valid if made, for example, by a member of the armed forces engaged in active duty or a person classified as a mariner at sea.
The execution of a last will and testament involves three parties: the testator and two witnesses. The testator acknowledges before the witnesses that the document is his last will and testament and that it bears his signature. The witnesses then sign the document in the presence of the testator and include their addresses of residence. Usually, all three parties are present at the same time for a will signing, but New York does allow witnesses to sign a last will and testament within 30 days of the testator’s signing as long as the testator is present.
A person who has not made a last will and testament is said to die “intestate,” which gives the state authority to act on behalf of the estate. This means that a probate court will decide how and to whom to divide the person’s property. Because this can be a time consuming process in certain cases, it is best to make arrangements for the disposal of your estate -- no matter how small -- while you are still living. It’s also a good idea to update your will periodically, especially in the event of a marriage, divorce, death of a spouse or the birth of a child.