Can You Write Your Own Will In New York?

by ECL Writer
SSI Disability NY

Death is an inevitable part of life, and it is essential to plan for it by creating a will. A will is a legal document that outlines how a person’s assets will be distributed after they pass away. Many people assume that they need a lawyer to write a will, but in New York, it is possible to write your own will. However, there are several things to consider before taking on this task. In this article, Eastcoastlaws.com will explore the process of writing your own will in New York, the legal requirements, and the pros and cons of doing so. We will also discuss when it is appropriate to seek the advice of an attorney. Whether you are a young adult just starting out or a retiree looking to update your estate plan, understanding your options for creating a will in New York is an important step in securing your legacy.

Why Should I Make A Will In New York?

Making a will is an essential step in planning for the future, and it is particularly important for individuals living in New York. A will is a legal document that outlines how a person’s assets will be distributed after they pass away. Without a will, the state of New York will decide how your property is distributed, and it may not align with your wishes. Here are some reasons why you should make a will in New York:

  • Protecting Your Assets: A will ensures that your assets are distributed according to your wishes after you pass away. This can help protect your loved ones from potential disputes or disagreements over your property.
  • Providing for Your Family: A will allows you to provide for your family members and loved ones, including minor children or elderly dependents. You can designate specific beneficiaries and provide instructions for how your assets should be distributed.
  • Appointing an Executor: A will allows you to appoint an executor who will be responsible for managing your estate and ensuring that your wishes are carried out. This can help streamline the probate process and provide peace of mind for your loved ones.
  • Avoiding Intestate Succession: Without a will, your property will be distributed according to New York’s intestate succession laws, which may not align with your wishes. By creating a will, you can ensure that your property is distributed as you see fit.

Making a will in New York is an important step in protecting your assets, providing for your family, and ensuring that your wishes are carried out after you pass away.

Can You Write Your Own Will In New York?

Yes, you can write your own will in New York, but it is important to follow certain legal requirements to ensure that your will is valid and legally binding. You don’t require an attorney to draft a will, according to New York law. Just stating that something is your will in writing using precise wording is all that is required. It must be signed and dated in front of two witnesses. The bottom must then bear the signatures and dates of those two witnesses. They only need to be aware that it is your will; they don’t need to understand what it says. They should not be mentioned in the document in any other way except for their signatures. Not even one is required. After completing these formalities, you should store your will somewhere accessible and secure until it is required.

Legal Requirements For Creating A Valid Will In New York

You can specify who will be legally in charge of your estate and where your assets go after your death in a last will and testament. Certain requirements for a will to be considered legitimate are outlined under New York law. The Surrogate’s Court will dismiss the Will as void if these prerequisites are not met. It is as if you never made a will in this situation. The intestacy law of New York would be strictly followed in distributing your estate. This implies that if you’re married and have kids of any age, your spouse will get the first $50,000 of your assets and your kids will get the other half equally. Usually, you don’t want this to happen, especially if you have young children or children from a prior relationship.

Anybody in New York who is at least 18 years old and of “sound mind and memory” is able to make a will in accordance with Section 3-1.1 of the Estates, Powers, and Trusts Law. New York, unlike several other states, mandates that a Will is in writing. In order to be valid, a will needs to be signed by the testator (drafter) and witnessed by two people who are both at least 18 years old. The witnesses are not allowed to inherit anything from the will. The will must be permanently void if the wrong witness is called. Unless specifically stated otherwise in the Will, blood relations are rarely acceptable witnesses.

The aforementioned standards have relatively few exceptions. A nuncupative Will is one that is verbally or recorded with at least two witnesses present, as opposed to being written down. One that is entirely handwritten and without witnesses is known as a holographic will. In light of the fact that the intent of a written and witnessed will is to ensure that the testator truly made the Last Will and Testament, holographic and nuncupative wills are not recommended and are only permitted in the most extreme cases.

The first occurs when writing is done by a member of the armed forces (or someone who is with them—perhaps a reporter?) while there are hostilities. A holographic Will is a last-resort legal document that loses its validity one year after the testator is released from the military. The second type of mistake is one that a mariner makes at sea. The mariner’s Will becomes invalid three years after it was written. A testator must always have possessed testamentary ability at the time the will was written. This does not imply that people with memory or mental impairments are incapable of making wills. If a person has the testamentary ability, it means they are aware of the scope of their possessions and can identify the “natural objects” of their wealth. By asking appropriate questions intended to assess capacity, an attorney can determine a testator’s capacity. If there is any risk of a dispute, a smart lawyer keeps thorough records to support their assessment of competence.

It is a good idea to at least speak with an accomplished trust and estates attorney even though you do not need an attorney to create a Last Will and Testament. The risks of going with the DIY method go beyond falling foul of the technical specifications for a valid Will under New York law. The court presumes the legitimacy of a will that has been prepared by an attorney. A self-subscribing affidavit is also included in an attorney-drafted will and is signed by both witnesses in front of a notary. The executor won’t need to find the witnesses years or decades later thanks to this affidavit.

Risks Of Writing Your Own Will Without Professional Assistance

While it is possible to write your own will without professional assistance, there are several risks involved that could lead to unintended consequences or even invalidate the will. Some of the risks of writing your own will include:

  • Failure to meet legal requirements: State laws set out specific legal requirements for creating a valid will, such as those outlined in the previous answer. If you do not meet these requirements, the will may be deemed invalid, and your property will be distributed according to state laws of intestacy, which may not align with your wishes.
  • Ambiguity or unclear language: Writing a will requires clear and concise language that conveys your intentions unambiguously. If your language is unclear or ambiguous, your beneficiaries may have to go to court to settle disputes, which can be both costly and time-consuming.
  • Failure to address all assets: A DIY will may not cover all of your assets, which can lead to assets being left out of the will and distributed according to the state’s laws of intestacy.
  • Failure to consider tax implications: Failing to consider tax implications can have a significant impact on the distribution of assets. A professional estate planning attorney can help you identify potential tax issues and create a will that reduces the tax burden for your beneficiaries.
  • Failure to update the will: A will needs to be updated periodically to reflect changes in your life, such as a marriage, divorce, or birth of a child. If you do not update your will regularly, your assets may not be distributed as you intended.

In short, while it may seem tempting to write your own will to save money, the risks involved can have unintended and costly consequences. It is highly recommended that you seek the assistance of a professional estate planning attorney to ensure that your wishes are accurately reflected in a valid will that protects your assets and beneficiaries.

Different Types Of Wills And When They May Be Appropriate

There are several types of wills, and the appropriate type of will depends on the individual’s specific needs and circumstances. Here are some types of wills and when they may be appropriate:

  • Simple Will: A simple will is the most common type of will and is appropriate for individuals with modest assets and straightforward distribution wishes. A simple will typically outline how the testator’s assets should be distributed after their death, and it appoints an executor to manage the distribution process.
  • Pour-Over Will: A pour-over will is appropriate for individuals who have created a trust to manage their assets during their lifetime. This type of will directs that any assets that are not already in the trust at the time of the testator’s death should be transferred into the trust.
  • Holographic Will: A holographic will is a handwritten will that does not require witnesses. This type of will is appropriate for individuals who do not have access to a typewriter or computer and who have simple estate plans. Holographic wills can be risky since they are often challenged in court due to unclear language or the testator’s capacity to make the will.
  • Joint Will: A joint will is a single will created by two people, usually spouses. This type of will is appropriate for couples with similar distribution wishes and can simplify the probate process.
  • Living Will: A living will is not a traditional will but a legal document that outlines an individual’s medical wishes if they are unable to make medical decisions for themselves. A living will is appropriate for individuals who want to make sure that their medical wishes are respected and followed.
  • Testamentary Trust Will: A testamentary trust will is appropriate for individuals who want to create trust for their beneficiaries after their death. This type of will outlines how the trust should be created and managed and appoints a trustee to manage the assets.

How Can An Attorney Help Me Write A Will?

An attorney can be a valuable resource when it comes to creating a will. Here are some ways an attorney can help you write a will:

  • Assess your needs: An attorney can help you assess your needs and create a plan for distributing your assets after your death. They can help you identify potential issues and create a comprehensive plan that ensures that your wishes are followed.
  • Draft your will: An attorney can draft your will according to your specific needs and state laws. They can ensure that your will meets all the legal requirements and that your wishes are accurately reflected in the document.
  • Advise on estate planning strategies: An attorney can advise you on estate planning strategies to minimize taxes and protect your assets. They can help you set up trusts, create guardianship provisions, and plan for incapacity.
  • Review and update your will: An attorney can review your will periodically and recommend updates as needed. They can ensure that your will reflects any changes in your circumstances and that it meets your current needs.
  • Provide legal advice: An attorney can provide legal advice on any issues related to your will. They can answer questions about the probate process, estate taxes, and other legal matters.

Overall, an attorney can provide valuable guidance and legal expertise when it comes to creating a will. They can help ensure that your wishes are accurately reflected in the document and that your assets are distributed according to your wishes. It is recommended that you consult with an estate planning attorney to ensure that your will meets all legal requirements and adequately reflects your intentions.

What Happens If I Die Without Writing A Will?

If you die without writing a will, this is known as dying “intestate.” The exact consequences of dying intestate depend on a variety of factors, including your jurisdiction and your personal circumstances. However, some general consequences of dying intestate include:

  • State law determines who gets your assets: If you die without a will, your assets will be distributed according to your state’s intestacy laws. These laws generally give your assets to your closest living relatives, such as your spouse, children, parents, or siblings. The exact distribution of your assets will depend on the specifics of your family situation.
  • The probate court will oversee the distribution: If you die intestate, your estate will likely go through probate court, which is the legal process of distributing your assets. The probate court will appoint an administrator to manage the distribution of your assets and pay off any outstanding debts you may have had.
  • It can be time-consuming and expensive: Dying intestate can make the probate process more time-consuming and expensive than if you had written a will. The probate court will have to determine who your heirs are and how to distribute your assets, which can take months or even years.
  • Your assets may not go to the people you would have chosen: If you die intestate, your assets may not go to the people you would have chosen. For example, if you are unmarried but have been in a long-term relationship, your assets may go to your parents or siblings instead of your partner.

Dying intestate can create uncertainty and complexity for your loved ones during an already difficult time. It is generally a good idea to have a will in place to ensure that your assets are distributed according to your wishes.

Considerations For Naming An Executor And Guardians For Minor Children

When creating a will, two important considerations are naming an executor and guardians for minor children. Here are some factors to consider when making these important decisions:

Executor:

  • Trustworthiness: Your executor should be someone you trust to carry out your wishes and manage your assets and affairs after your death.
  • Organizational skills: The executor should have strong organizational skills, as they will be responsible for managing your estate, paying your debts and taxes, and distributing your assets.
  • Availability: The executor should be someone who is available and able to serve in this role, as it may require significant time and effort.
  • Financial management skills: The executor should have some knowledge of financial management, as they will be responsible for managing your assets and making investment decisions.

Guardians:

  • Parenting style: It is important to choose guardians whose parenting style and values align with your own.
  • Age and health: Consider the age and health of potential guardians, as they should be able to provide care for your children for a significant period of time.
  • Location: Choose guardians who live close enough to you or who are willing to relocate to provide care for your children.
  • Stability: Choose guardians who are emotionally and financially stable and can provide a stable home environment for your children.
  • Communication: Make sure to discuss your wishes with potential guardians beforehand to ensure they are willing and able to take on this responsibility.

It is important to choose both an executor and guardians who you trust to carry out your wishes and provide the best care for your children. It is also important to update your will periodically as circumstances change and to make sure your choices still align with your wishes.

How Do I Sign My New York Will?

To finalize your will in New York:

  • you must sign or acknowledge your will in front of two witnesses
  • you must declare to your witnesses that the document you are signing or acknowledging is your will, and
  • your witnesses must sign your will in front of you. N.Y. Estates, Powers & Trusts Law § 3-2.1.

You should sign at the end of the will; New York law may not recognize anything after your signature other than the self-proving affidavit (see below). New York law gives you 30 days to have your witnesses observe you signing or acknowledging your will, but you can have your witnesses sign at the same time as you do. Your witnesses must also write their addresses on the will. N.Y. Estates, Powers & Trusts Law § 3-2.1. Holographic will not need to be witnessed, but they must be completely written in your own handwriting. N.Y. Estates, Powers & Trusts Law 3-2.2.

Can I Revoke Or Change My Will?

In New York, you may revoke or change your will at any time. You can revoke your will by:

  • burning, tearing, cutting, canceling, obliterating, mutilating, or destroying the will
  • ordering someone else to burn, tear, cut, cancel, obliterate, mutilate, or destroy your will in front of you and two other witnesses
  • making a new will, or
  • making a new writing that says you are revoking your will and following the same formalities you used to make your original will (see above). N.Y. Estates, Powers & Trusts Law § 3-4.1.

It’s preferable to revoke your will and create a new one if you need to make modifications to it. Alternatively, you could write an amendment to your current will know as a codicil if you just need to make very minor modifications. In either scenario, you must complete your amendments using the same procedures as when you created your initial will.

Can I Make A Digital Or Electronic Will?

A few jurisdictions allow you to create a will digitally, sign it electronically, and have it witnessed without ever printing it out. Only a small number of states already permit the use of such electronic wills, but many more are considering doing so. E-wills are not now permitted in New York, however, this may change in the future.

Common Mistakes To Avoid When Creating A Will In New York

When creating a will in New York, there are several common mistakes that you should avoid. Here are some of the most important:

  • Failing to follow legal requirements: New York has specific legal requirements for creating a valid will, including the requirement that the will be signed by the testator (the person creating the will) in the presence of two witnesses. Failing to follow these requirements can invalidate the will.
  • Not updating the will: It is important to update your will periodically, especially after major life events like marriage, divorce, or the birth of a child. Failing to update your will can result in unintended consequences.
  • Not considering all assets: Make sure to consider all of your assets when creating a will, including assets that may not have significant financial value, such as family heirlooms or sentimental items.
  • Failing to name a backup executor: It is important to name a backup executor in case your first choice is unable or unwilling to serve in this role.
  • Not considering tax implications: Depending on the size of your estate, your will may have tax implications that need to be considered when creating the document.
  • Failing to plan for incapacity: In addition to creating a will, it is important to plan for the possibility of incapacity by creating a power of attorney or healthcare proxy.
  • Not seeking professional advice: Creating a will can be complex, and it is important to seek professional advice from an attorney who is experienced in estate planning to ensure that your will is legally valid and meets your goals.

Avoiding these common mistakes can help ensure that your will is legally valid and reflects your wishes for the distribution of your assets after your death.

Steps To Create A Will In New York

Here’s a quick checklist for making a will in New York:

  1. Decide what property to include in your will.
  2. Decide who will inherit your property.
  3. Choose an executor to handle your estate.
  4. Choose a guardian for your children.
  5. Choose someone to manage the children’s property.
  6. Make your will.
  7. Sign your will in front of witnesses.
  8. Store your will safely.

Resources For Will Making

You can find New York’s laws about making wills here: New York Consolidated Laws Estates, Powers & Trusts Article 3: Substantive Law of Wills Part 2.

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