What you need to know to make a legal Will in New York.
If you are considering making a Will in New York, there are a number of matters you need to consider. Additionally, although the document itself may seem simple enough, there are technical formal requirements which need to be complied with. This article discusses essential principles of New York Wills.
Who can make a Will in New York?
The state legislation requires that the testator (the person making the Will) be at least 18 years old. They must also be of sound mind.
How many witnesses do I need?
A New York Will You must have at least two witnesses. They must be 18 years of age or older. Never use a beneficiary or any other person you’ve mentioned in the Will as a witness. If you do, your Will is still valid, however any appointment or gift made in favor of that person becomes void. It’s always best to use two non-interested independent persons to witness your Will.
What is probate?
Once the testator dies, the Will must be validated by the court in order for it to be effective (this is called probate). Usually the executor starts the process by filing a petition asking the court to probate the Will. The applicant must provide proof that the Will was signed properly, usually with the written affidavit of one of the attesting witnesses.
What does self-proving my Will mean?
This gives your Last Will and Testament a better chance of being accepted to probate. In order to self-prove a New York Will, the subscribing witnesses must sign affidavits before an office authorized to administer oaths. A testator should have the witnesses sign these self-prove affidavits at the same time as signing the Will.
The affidavits have the same legal effect as though the witness testimony was given in court (unless someone raises an objection to the Will). This becomes very useful, especially if any of the witnesses have already died or cannot be located at the time of probate.
Who is the executor?
The executor is the person who administers your estate. This means they apply for probate of your Will, notify the appropriate persons, collect your assets and distribute them in accordance with your Last Will and Testament.
If you do not name an executor in your Will, then the court appoints an administrator. In New York, the beneficiaries named in your Will have priority for being appointed. However, if there is no appropriate person able or willing to accept the role, then the administrator could end up being a stranger. That’s why it’s always best to designate an executor and an alternate executor in your Will (just in case the first-named person cannot act).
Can my Will be contested?
Yes. A New York Will may be challenged by any person who would be disadvantaged if the Will was admitted to probate. This would include your spouse, children and other heirs at law. If you are concerned that your family may contest your Will after you die, you should contact an attorney to have the document drafted properly and even to include a ‘no contest clause’. This clause penalizes any beneficiary who objects to your Will or issues proceedings against your estate without having probable cause.
Making a New York Will may seem relatively simple. However, never take even the smallest issues for granted. A Will is an extremely important document for estate planning purposes. The nature of the document and the fact that it doesn’t come into effect until after your death makes matters even more difficult. How do you clarify your intention once you’re not here? You need to take care and be very clear and specific when drafting your own Will. If possible, leave the task in the hands of a qualified attorney.
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Are You the Executor of a New York Will?
Information and advice on submitting a New York Will to probate.
