Laws in New York State Regarding Wills

By Christine Funk, J.D.

Laws in New York State Regarding Wills

By Christine Funk, J.D.

A will is a written statement that details what an individual wants to happen to their property when they pass away. In addition to addressing property division, these documents can also provide for guardians for the children to raise them or to manage their money from the inheritance (or any other source) until they reach the age of adulthood or the age designated for the child to inherit. Sometimes different people are in charge of the child and the child's property, and sometimes the court only designates one guardian.

Businessman signing paperwork

Each state has specific requirements for a valid will. Here are some of the most important requirements and details in New York.

Essential Elements of a Will

The legal requirements for a valid will in New York include:

  • The author is 18 or older.
  • The author is of sound mind.
  • The author wrote the document freely and voluntarily.
  • It must state it is the last will and specifically revoke all previous versions.
  • The author and two witnesses must sign it.

The document may be either printed or written out longhand, so long as it is personally written by the author. Oral wills are only valid in extremely rare circumstances.

Where to Keep a Will

It is important to keep this paperwork in a spot that is safe but easy to locate once a person passes away. For example, if someone keeps their will in their safe deposit box, it is most certainly safe. However, it is not easy to obtain access to a deceased person's safe deposit box. Thus, in most circumstances, a safe deposit box is not the best choice for storing the document.

In some counties in New York state, the Surrogate's Court maintains a vault that citizens of the respective county may use to store their wills for safekeeping until they die.

What to Do with a Will After Someone Dies

Once someone passes away, their will is filed with the court. Typically, it is filed in Surrogate's Court and admitted for probate. Probate is the process in which the document's appointed executor pays any final debts, taxes, and expenses out of the deceased person's resources. Next, the executor distributes the remaining property to the beneficiaries as detailed in the paperwork.

In a situation where a person has less than $30,000 in personal property, one can file a "small estate," also referred to as a voluntary administration, rather than probate. The executor files the original will, along with a certified copy of the death certificate, the small estate affidavit petition, and other supporting documents in the Surrogate's Court in the county where the deceased person maintained their primary residence.

What Not to Do with a Will After Someone Dies

Any time there is a will, there is potential that someone may challenge its sufficiency. Consequently, it is a good idea to refrain from doing anything that makes the document appear as if it was tampered with in some way, making it invalid.

For example, do not remove staples from the paperwork when making copies. When staple removal occurs, the remover of the staples must provide a signed, notarized affidavit detailing why the staples were removed, the location of the paperwork since the time it was executed, and the staple remover's belief that no substitutions or changes occurred since the time the document was executed.

Dying Without a Will

When someone dies in New York without a will, they die "intestate." The State of New York has laws that detail how potential beneficiaries may inherit property in this situation. Whether the property goes to a spouse, children, parents, or siblings depends on a few different factors. If no relatives are located or if the deceased person has no relatives, the deceased's estate becomes property of the State of New York.

Residents of New York should become familiar with the state's requirements for a valid will, and the processes required to execute one. If you need to write or update this document, an attorney familiar with trusts and estate planning can help.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.