New York State Wills & Probate Laws

By Beverly Bird

In New York, matters of wills and probate are handled by the Surrogate’s Court in the county where the deceased primarily lived. Like all states, New York's legislation builds in safeguards for spouses. The state also accepts handwritten and oral wills in an effort to accommodate members of the military.

In New York, matters of wills and probate are handled by the Surrogate’s Court in the county where the deceased primarily lived. Like all states, New York's legislation builds in safeguards for spouses. The state also accepts handwritten and oral wills in an effort to accommodate members of the military.

Making a Will

Adults over 18 years of age can make wills in New York if they are of sound mind and memory. Two witnesses must see the signature made on the will. They have 30 days to sign the will, as well, and they must also print their names and addresses with their signatures. Oral wills, also called nuncupative wills, are accepted from members of the armed forces, their spouses and companions if they accompany them into areas of armed conflict, and mariners. Holographic or handwritten wills are valid if written entirely in the handwriting of the testator, or the person making the will.

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Filing for Probate

The executor of a will, or the person named in it to oversee the probate process and make sure all bequests are carried out, must file for probate once a will has been located after the testator’s death. The original will and a certified copy of the death certificate must be placed with the Surrogate’s Court. In New York, the filing fee depends on the size of the estate. The witnesses to the will must also appear to give testimony that the will is authentic or sign and submit a sworn statement to that effect.

Objections to Probate

Once the will is placed with the Surrogate’s Court, the court will issue citations to anyone who has standing to challenge the will, usually all beneficiaries and heirs. Heirs are anyone closely related to the deceased who would have inherited by law if he had died without a will. They may or may not also be beneficiaries in the will. The citation sets a date for a hearing, generally within 10 days. If you want to object to the will’s entry into probate, you must appear in court on that date or you will forfeit your chance to contest.

Spouses' Rights

Spouses have an automatic right, called a “right of election,” to a percentage of the deceased’s estate in New York. Legislation enacted as of September 1, 1992 gives surviving spouses two years from the date of death to file this election with the Surrogate’s Court. If you attempt to disinherit your spouse or leave her less than a statutory share in your will, New York will give it to her anyway. The share is $50,000 or one-third of your estate after payment of taxes, debts and expenses, whichever is greater.

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Who Can Contest a Will?

References

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Laws on Wills in the State of New York

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.

What's the Statute of Limitations for Contesting a Will in Georgia?

Georgia does not limit will challenges to beneficiaries and heirs. Those who are financially harmed by the will or who might potentially benefit from it can contest it as long as they have legal grounds, such as proof that the testator was not mentally competent, that some procedural deficiency occurred in the making of it, or it is a forgery or fraud. Two statutes of limitation exist.

State Laws on Wills

While all states have their own legislation regarding wills, the laws tend to be similar in most jurisdictions. For instance, all states accept statutory wills, prepared by an attorney or printed by the maker to follow a specified legal format, and most states prevent spouses from being totally disinherited, though how much they can receive can vary. Because of this variance, when making your will it may be best to consult a lawyer who's familiar with the specific statutes in your state.

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