A will, also known as a "last will and testament," is a document used to state formally who you want to receive your property after you die and to name an "executor" to settle your estate. Wills are especially important if you have young children, to state at what ages they should receive an inheritance and who will manage it for them in the meantime. You may also name a legal guardian for a child under eighteen years of age.
Basic Will Requirements
In order for a will to be valid, there are strict requirements surrounding its execution.
New York requires that the person making the will be at least 18 years of age. This is because New York law does not consider someone under the age of 18 to have the legal capacity to create a will or enter into contracts.
One of the most confusing requirements for making a will is the idea that the testator must be of sound mind. Sound mind does not mean that the person is completely clear headed. Generally, they will only need to know the purpose of the will they are making, and generally know the nature of their property. People who have mental disabilities may make a will if they meet those two requirements.
In New York, the will must be witnessed by two people. Those witnesses must either see the testator sign the will at the end, or see the testator acknowledge that the will is theirs. The witnesses must sign their names at the end of the will, and include their residential addresses, within one thirty day period.
Holographic wills are wills that are written by hand. In New York, they are only valid if they are made by members of the armed services during an armed conflict. The handwritten will must be entirely in the testator's handwriting.
[Estates, Powers & Trusts §3-1.1, et seq]
Any person who is affected by a will may challenge the will after it is submitted to the court for approval. This is called a “will contest.” Some of the ways your will may be challenged include:
•Lack of mental capacity: in which someone claims you were not of sound mind at the time you made the will;
•Lack of validity: in which someone claims you did not follow all the proper steps in making the will, such as having it signed and witnessed;
•Undue influence: in which someone claims you only made the will because you were in a weakened mental state and you were influenced by someone stronger to divide your property in a way that goes against your wishes;
•Duress: in which someone claims you only made the will because you were under extreme pressure by someone or something to divide your property in a way that goes against your wishes; or
•Fraud: in which someone claims you only made the will because another person lied to you and it influenced how you divided your property in a way that goes against your wishes.
If a will contest is successful, the judge may say that all or parts of the will are invalid and cannot be used to divide your property. The court will then divide your property and money as it sees fit, which may be as if there were no will at all. In that case, your estate would be divided according to New York’s law of intestacy.
1. Without a will, your assets will be distributed according to New York state "intestacy" law. This law gives your property to your closest relatives, beginning with your spouse and children. Often clients are surprised to learn how different New York state law is from what they would have wanted. For example, if you have a spouse and children, assets would be divided between them, instead of to your spouse first, as most people would expect and want. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse's relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
If you die without a valid will, the State of New York, not your spouse, will distribute all property in your estate.
An attorney can help protect your right to distribute your property as you choose. They can explain your options and help you to write a will that achieves the results you want. And they can ensure that your will is valid and complies with the formalities required by law.