Laws on Wills in the State of New York

By Beverly Bird

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.

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.

Form

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.

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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.

Revocation

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.

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State Laws on Wills

References

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Last Will & Testament Laws in South Carolina

In South Carolina, wills must be in a printed format and signed by the testator, the person making the will, who must also be over 18 years of age and have the mental capacity to know what he is doing. Those younger than 18 may also make a will if they are married or otherwise emancipated from their parents by an order from family court.

How Is a Will Affected by Multiple Marriages?

Most American divorcees remarry within five years, according to the U.S. Census Bureau. Spouses who lose their partners to death don’t even wait that long -- the national average in 2006 was three years for men and about four-and-a-half years for women. If you never get around to adding or deleting spouses from your will, state law typically takes over and decides what will occur -- and sometimes these laws might override your final wishes.

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Maine’s statutes regarding wills are on par with other states. You must be of sound mind and at least 18 years old to make a will in the state, and your signature requires two witnesses. Maine allows your witnesses to also be beneficiaries. Self-proved wills are accepted and eligible for simplified probate proceedings after your death. To self-prove your will, you and your witnesses must sign a second sworn statement indicating that it is authentic, and attach the statement to the will.

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