Probate laws and the laws governing wills can be intricate and vary among states. In New York, they span Articles 3, 4 and 5 of the state’s legislation. If you are making a will in New York, you should speak with an attorney to make sure your understanding of these statutes is correct because a small misinterpretation can make a large monetary difference to your beneficiaries.
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Under Article 3, Part 2 of New York’s laws, all wills must be in typewritten or printed form with two exceptions: Nuncupative, or oral wills, and holographic, or handwritten wills, are valid only if made by members of the armed forces while in military or naval service during a war or other armed conflict, a person who serves with or accompanies a person engaged in such activity, or a mariner at sea. Otherwise, the will must be in printed form and signed by the testator and two witnesses. You must be 18 years or older to make a will in New York and when you die, it must be filed in the county where you lived.
Protection of Spouse
You cannot disinherit your spouse in New York. Article 5, Part 1 allows her an elective share of your estate if you exclude or otherwise omit her from your will. If you try to disinherit your spouse or leave her a nominal amount, or if you marry but neglect to make a new will to include her, she can choose to take a certain percentage of your estate. If your will was written between August 31, 1930 and September 1, 1966, the percentage for a spouse is generally one-third of the estate’s value after taxes, debts and expenses. After September 1, 1966, this changes to one-third of the estate or $50,000, whichever is greater.
Effect of Divorce
If you neglect to redo your will after a divorce, New York law protects you. A final judgment of divorce or separation revokes all provisions or bequests to a divorced spouse if it is in effect when you die. If the spouse has abandoned you up until the time of your death, with or without a divorce judgment, New York also disqualifies the spouse from inheriting. The only exception is if your will specifically overrides this, providing that your spouse should get his inheritance regardless of a divorce or other disqualifying factors.
Exemptions from Estate
New York law allows for certain property to pass directly to your immediate family and bypass probate. The list includes household possessions totaling up to $20,000, personal possessions such as photos, books and computer disks up to $2,500, farm equipment and family pets up to $20,000, and one automobile worth up to $25,000. There are also cash allowances for sustenance of spouses and minor children after funeral expenses are paid.
You can revoke your will at any time in New York, either by making a new one that revokes the old one, making a written statement that you are revoking the old one and having that statement executed and witnessed just as your will was, or by burning, tearing up or otherwise destroying the will, provided you do it in front of two witnesses.