What’s a Will and why do you need one if you live in the Big Apple? A Last Will and Testament is a written document explaining how a person wants their property and assets distributed when they die. To ensure you have a valid, legal Will in New York, you must be sure to follow New York law for what to include, how to sign, and how to have the document witnessed. Follow along with FastWill and learn more about how to make a Will in New York State.
What Happens if You Die Without a Will in New York
When a person dies without a Will, the law calls it “dying intestate.” In New York, a person who dies intestate loses control over how their property will be distributed to their heirs. The court will have to divide their property based on the dictates of state law. You can find this law in EPTL 4-1.1, which is the section of law that deals with distribution of a decedent’s estate. (A ‘decedent’ is the person who passed away.) The intestacy law follows a hierarchy which says who gets what share of the estate.
Let’s go through a few basic scenarios. If you have children but aren’t married when you die, the children receive the entire estate, which is divided equally among them. If you die with a spouse but without children, the spouse gets everything. So far, so good, right? Then things get more complicated. If you die with a spouse and with children, New York says the spouse receives the first $50,000 and then half the balance of the estate. The children receive whatever is left over. If you are single and don’t have kids, then your next living relatives will inherit, such as your parents. But beware, there is nothing under the law that would stop your long-lost cousin from inheriting if you don’t have any other family. “But wait,” you might be thinking, “I never even met cousin Greg.” That doesn’t matter. If he’s the last family member standing, he gets to inherit. If there is no living family, the state of New York will get your estate. The state will never simply give your estate to someone like your best friend. If that’s something you want to happen, you need a Will.
These are all excellent reasons to draft a Will. Thankfully, you can draft a valid New York State Will one in just minutes by using FastWill.
What is a Will in New York?
A last will, also known as a last will and testament, is a legal document that outlines a person's final wishes regarding the distribution of their assets and the handling of their affairs after their death. It serves as a written record of how the individual wants their property, possessions, and responsibilities to be managed and allocated among their chosen beneficiaries.
What Makes a Last Will Valid in New York State?
In order for a last will to be considered valid in New York State, it must comply with certain legal requirements outlined in the New York Estates, Powers and Trusts Law (EPTL). Here’s what you need to show in order to make sure your Will is valid in New York:
Person Has Testamentary Capacity
The person creating the will, who is known as the testator, must be at least 18 years old and of sound mind. This means they must understand the nature and consequences of creating a Will, be aware of the extent of their assets, and comprehend that they are bequeathing their assets to beneficiaries.
Will Must Be In Writing
The last will must be in writing. It can be typewritten or printed. It is worth noting that New York doesn’t recognize oral Wills. New York also does not recognize handwritten (holographic) Wills unless they are made by a member of the Armed Forces.
Will is Signed
The testator must sign the Will at the end of the document. If the testator is unable to physically sign the Will, they may direct someone else to sign on their behalf in their presence and at their direction.
Witnesses
The Will must be witnessed by at least two people who are at least 18 years old. The witnesses cannot be beneficiaries named in the Will. This means that you can’t have your children or spouse as witnesses. The witnesses can be present at the same time and must sign the Will in the presence of the testator. Alternatively, the witnesses can sign it within 30 days after its creation.
Notarized Document
A Will doesn’t need to be formally notarized in New York. However, it can be helpful to have the Will notarized because then it will be self-proving in court. If a Will is self-proved, that means that the court deems it valid and authentic without witnesses having to testify in court.
How to Write a Will in New York
Step 1: Name the Executor and Guardian: First you must name an executor for the Will. An executor is the person who will be given the authority to manage your debts, wind down your affairs, and pay your beneficiaries. You can name your spouse, friend, lawyer, accountant, or any other person whom you trust. It is always helpful to name an alternate executor. A guardian is necessary if you have children under age 18. If your child’s other parent is still living, the court almost always gives them custody. However, if the person passes away or is incapacitated, a court will take your opinion into account.
Step 2: Identify Your Assets: Make a list of all your assets, no matter how modest they may seem. This can include real estate, personal belongings, vehicles, jewelry, cryptocurrencies, and any other valuable possessions. Even if you don't have significant assets, it's important to account for everything you own. That means your video game collection and your cryptocurrency account should be top of mind.
Step 3: Identify Your Beneficiaries: Think about who you would like to receive your assets. This can include family members, close friends, or charitable organizations. Be specific about what you want each person or entity to inherit.
Step 4: Consider Non-Will Assets and Issues: Not all of your assets and concerns can be handled by a Will. Bank accounts that are payable-on-demand, retirement accounts (like 401k), guardians for your pets, some cryptocurrencies (check the policies), and life insurance policies must be handled separately. As far as your funeral goes, if you have specific wishes it may be better to leave a letter that your loved ones can open right away, just in case they don’t read the Will until after you were buried.
