Writing Your Will in New York | What You Can Include

Reviewed by R. Spencer Lauterbach, ESQ.

In New York, establishing a valid will allows you to determine how you want to distribute your assets, including cash, real estate, investments, vehicles, and personal property. In addition, you are eligible to appoint an executor to distribute your estate on your behalf, as well as appoint legal guardians for minor children. If you need help with estate planning, please read on, then contact an experienced Rockland County will attorney to learn what you can include when writing your will in the state of New York.

What should you include in a will in New York?

When writing a will in the state of New York, you can specify almost anything related to assets and beneficiaries. You can give away money, personal belongings, high-value assets, and even real estate property. The beneficiary of a will can be a family member, friend, charity, business, or even a trust. It only makes sense that you would want to make sure you leave your property to the right person or people. Other notable assets to take stock of before finalizing your will include the following:

• Any vehicles you possess
• Family heirlooms
• Cash
• Bank accounts
• Retirement funds
• Stock options
• And any other valuable possessions

What are the requirements for a will to be valid in the state of New York?

To be valid at all times, a will must be in writing, dated, and signed by the maker of the will with two witnesses signing and adding their addresses under their signatures. Just writing out your wishes without the witness formality is not suggested. A will does not have to be notarized to be valid in the Empire State. Also, you are not required by state law to engage the legal services of a will attorney, but you would be wise to do so.

It’s important to understand that in addition to signatures, New York estate law requires specific legal and procedural safeguards to ensure that the estate plan is legally valid and is approved by the court during the probate process.

Statutory Age and Capacity Requirements

To execute a valid will in New York, the person making the will (the testator) must meet legal age and mental standards set by state statute:

• Age Requirement: The testator must be at least 18 years old at the time the will is executed.
• Sound Mind and Capacity: The testator must show they have testamentary capacity, which ultimately means they understand the nature of their decisions and the extent of their assets, their legal heirs, and the purpose of establishing the document. 
• Attestation Formalities: In addition to meeting the age requirement and demonstrating testamentary capacity, two witnesses must be present to observe the signing or acknowledge the signature. The witnesses must be informed that the document being executed and signed is the testator’s will. 

What Happens If You Die Intestate (Without a Will)?

In the event you fail to establish a valid will before your passing, you will have died “intestate.” Essentially, this means that New York State law will dictate the distribution of your assets, rather than your personal wishes.

• Statutory Distribution: Your assets will be dispersed in accordance with New York’s intestate succession statute, which prioritizes surviving family members in a fixed order as per NY EPTL § 4-1.1.
• Court-Appointed Administrator: Rather than appointing an executor of your own choosing, the court will choose someone to serve as the estate administrator to handle your estate, which can ultimately lead to fighting between family.
• Loss of Asset Control: Without a will, any non-legal heirs, like unmarried partners or close friends, will be ineligible to receive any portion of your estate in accordance with intestate law.

Key Legal Protections, Updates, and Estate Administration

It’s important to understand that drafting a will is only one portion of the estate planning process. In addition, you’ll also need to appoint an executor, update your documents, and understand the legal challenges to ensure that your intentions are honored.

Choosing an Executor and Their Responsibilities

An executor is the individual you appoint in your will to manage your estate administration following your passing to ensure your wishes are properly executed. Their responsibilities include:

• Probate Filing: To initiate probate, the executor files the will and the death certificate with the New York Surrogate’s Court.
• Financial Settlement: The executor must locate and inventory assets, pay outstanding debts, and file state and federal taxes owed by the estate.
• Asset Distribution: The executor must distribute the remaining assets and property to the beneficiaries named in the will.
• Fiduciary Duty: When executors assume the role, they assume a fiduciary duty to the estate, which means they are legally required to act in good faith and on behalf of the estate. Failure to do so can result in removal by the court. 

When and Why You Should Update Your Will

Unfortunately, many people assume that a will is a document that can be forgotten once it is established. However, it should be reviewed every few years to ensure it still reflects your wishes, or following major life changes including:

• Family Structure Changes: Marriage, divorce, remarriage, or the birth or adoption of a child or grandchild.
• Loss of Key Individuals: The death or incapacity of a primary beneficiary, named guardian, or designated executor.
• Financial Shifts: Significant changes in financial status, acquiring major real estate, or acquiring business interests.

Grounds for Contesting a Will in New York

It’s important to understand that, in accordance with New York Probate law, a will can only be contested by interested parties, like legal heirs in accordance with New York probate law or those named in the will, who have the right to contest the will on specific legal grounds:

• Lack of Testamentary Capacity: Proving the testator lacked the mental competence to understand the document when signing.
• Undue Influence: Demonstrating that a third party exerted improper pressure or control over the testator during drafting.
• Improper Execution: Showing that statutory formalities (e.g., proper witness signatures) were not strictly followed.
• Fraud or Forgery: Evidence that signatures were falsified or that the testator was tricked into signing the document.

How can a New York estate planning attorney help you?

A skilled Rockland County wills, trusts and estates attorney will organize smooth transition of assets if you become disabled or after your death, minimize the impact of taxes on your estate, reduce family conflict, prevent family disputes, minimize the time in probate court, minimize the value of assets in probate court and distribute your property to your children, spouse, loved ones and charities, according to your instructions. The laws governing the writing of a will may appear simple and straightforward, but there are many ways that you can unknowingly create unnecessary strain and work for your survivors. Our firm will also provide you with guidance and describe your options if you are dealing with complex estate issues. Let us handle the paperwork while you spend time with your family and friends. Give us a call today.

Contact our Firm

If you are ready to establish a will in Rockland County, it’s in your best interest to connect with the Lauterbach Law Firm. We understand that this process can be overwhelming, which is why we are committed to helping you navigate these complex matters so you can have peace of mind for your future. Do not hesitate; contact our firm today to learn how we can assist you.