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.

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.

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.

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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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