Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. New York wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with the testator (or the person making the will) in creating valid New York wills, and in assigning a person (called the executor in most states) to administer a New York last will and testament after the death of the testator.
Basic Requirements for a New York Last Will and Testament:
Age: The testator must be at least 18 years old.
Capacity: The testator must be of sound mind (capable of reasoning and making decisions) and memory.
Signature: A New York last will and testament must be signed by one of the following:
By the testator
In the testator's name, by some other person in the testator's presence and by the testator's direction
Any person who signs the testator's name to the will shall sign his own name and affix his residence address to the will but shall not be counted as one of the necessary attesting witnesses to the will
A will lacking the signature of the person signing the testator's name shall not be given effect
However, the failure of the person signing the testator's name to affix his address shall not affect the validity of the will
The testator must declare the will to be his or hers
The testator must sign in the presence of two witnesses or acknowledge his or her signature to them (either at the same time or separately)
The testator must request the witnesses to sign their signatures and affix their residence addresses to the will
Failure of the witnesses to affix their addresses shall not invalidate the will
Writing: A New York last will and testament must be in writing to be valid
Time: A will must be executed within one thirty-day period
Beneficiaries: A New York last will and testament may make a disposition of property to any person, including but not limited to any of the following:
Stock or non-stock
A governmental agency
An authority of subdivision
A partnership or other firm
New York State
Other types of recognized wills:
A will is nuncupative when it is unwritten, and witnessed by 2 people
Nuncupative wills are valid only for testators who are in active military or naval service, or a mariner at sea
A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by New York laws relating to wills
Holographic wills are valid only for testators who are in active military or naval service, or a mariner at sea
Distribution of Property:
A will allows you to leave your property to those you love, and in the amounts of your choosing. Your estate consists of assets and property including bank accounts, homes, land, furniture, automobiles, and securities (stocks and bonds). In general, New York laws allow you to dispose of your property as you wish.
Other Purposes of Wills:
LegalZoom's New York wills form may be used to nominate a person who will act as guardian for your minor children.
Our New York wills form may also be used to name those persons you wish to handle your property (known as executors). An executor may be a relative, friend, lawyer, bank, or a trust company.
In addition, your will may authorize the continuation of your business.
You may use our New York wills form to defer distributions to minors to a more mature age than 18 by placing trust provisions in the will.
Notable exceptions to the ability to distribute property:
Property held jointly may not be willed.
Exempt property: If a person dies leaving a surviving spouse or children under the age of twenty-one years, the following items are not part of the estate and pass on to the surviving spouse. In the case of no surviving spouse or a disqualified spouse, then the following items pass on to the minor children. The total value of exempt property cannot exceed $56,000.
All housekeeping utensils, musical instruments, sewing machine, household furniture and appliances, including but not limited to computers and electronic devices, used in and about the house, fuel, provisions and clothing of the decedent, not exceeding in aggregate value ten thousand dollars.
The family bible, family pictures, video tapes, and computer tapes, discs, and software used by such family, and books, not exceeding in value one thousand dollars.
Domestic animals with their necessary food for sixty days, farm machinery, one tractor and one lawn tractor, not exceeding in aggregate value fifteen thousand dollars.
One motor vehicle not exceeding in value fifteen thousand dollars.
Money or other personal property not exceeding in value fifteen thousand dollars, except that where assets are insufficient to pay the reasonable funeral expenses of the decedent, the personal representative must apply such money or other personal property to defray any deficiency in such expenses.
Right of Election by Surviving Spouse: Where a decedent dies and is survived by a spouse, a personal right of election is given to the surviving spouse to take a share of the decedent's estate, subject to the following:
The elective share is the monetary amount equal to the greater of (1) $50,000 or, if the capital value of the net estate is less than $50,000, such capital value, or (2) one third of the net estate. In computing the net estate, debts, administration expenses and reasonable funeral expenses shall be deducted, but all estate taxes shall be disregarded.
Life insurance: Generally, insurance paid to the testator may be passed on through the will. However, a testator may not leave by will life insurance to a different beneficiary other than stated in the contract. The life insurance policy owner must change the beneficiary pursuant to the contract with the insurance company.
Providing for Pets
Under applicable New York state laws, a trust for the care of your pets is valid. After your death, the trust allows you to assign a caretaker for your pet(s) to ensure proper care of your pet. The testator would make a testamentary addition to the trust in the will (known as a pour over will) that would designate the trustee as the beneficiary to the pet(s). Legalzoom's New York wills form gives you the choice of providing for your pets in this manner.
Changing and Revoking
Changing a Will
A New York will and testament can be changed through a codicil, which is a supplement to a will altering its provisions by additions or subtractions, or confirming its provisions wholly or partially, but not totally revoking it.
A codicil must be made in accordance to the same New York laws that govern wills.
Note that a codicil may not wholly revoke a will.
Revoking a Will
A New York will and testament or a part of a New York will and testament can be revoked:
1) by another will,
2) by a writing indicating an intent to revoke or alter the will, and executed in accordance to New York laws governing wills, or
3) an act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction performed by either the testator or another person, in the presence and by the direction of the testator; in which case, the fact that the will was so revoked in the presence and by the direction of the testator shall be proved by at least two witnesses, neither of whom shall be the person who performed the act of revocation.
Probate and Estate Taxes
After the testator has died, the executor or executrix of your will selects a lawyer to assist in probating your New York last will. The lawyer, on behalf of the executor, then files a petition with the Surrogate's Court that requests the issuance of letters testamentary. The letters allow the executor to transfer bank accounts, stock, and other property in the estate's name. Initially, the executor must pay funeral expenses, debts, and taxes. Finally, the shares of the estate are distributed to the beneficiaries of the New York last will.
For estates of individuals who died on or after February 1, 2000, Article 26 of the New York State Tax Law imposes an estate tax equal to the maximum amount allowable against the federal estate tax, as a credit for state death taxes under section 2011 of the Internal Revenue Code.
This type of estate tax is sometimes referred to as a pickup tax, sponge tax, or sop tax, since the tax picks up or absorbs the portion of the federal estate tax allowed as a credit when paid to a state, that would otherwise be paid to the federal government if the state did not impose a tax on the estate.
Generally, when a state imposes a pickup tax, the estate's total tax liability (federal and state combined) is no more than the federal estate tax liability before the credit for state death taxes.
It is extremely important to make a New York will if you want to control the distribution of your estate. If you die without a valid will, you are said to have died "intestate" and your property will be distributed according to strict New York state laws.
Intestate Descent and Distribution:
The property of a decedent not disposed of by will, after payment of administration and funeral expenses, debts and taxes, shall be distributed as follows:
If a decedent is survived by a spouse and descendants: the spouse takes the first $50,000 and one-half the property, and the descendants share the rest.
If a decedent is survived by a spouse and no descendants: the spouse takes everything.
If a decedent is survived by no spouse and descendants: the descendants take everything.
If a decedent is survived by a parent or parents, no spouse, and no descendants: the parent(s) takes everything.
If a decedent is survived by the parents' descendants but not any of the closer relatives: the parents' descendants take everything.
If a decedent is survived by one or more grandparents or their descendants, but none of the closer relatives: half of the property goes to the maternal side and the other half to the paternal. Second cousins are excluded if the decedent has any first cousin on either side.
If the descendants include a mix of generations: living children take a full equal share. Children of predeceased children then equally divide the combined shares of all their deceased parents.
If you make a New York will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.