Creating a last will and testament is crucial to provide a plan for the distribution of real and personal property upon your death. New York wills allow the testator (the person making the will) to make sure a spouse, children, other family members, friends, and even pets are taken care of.
In contrast to a last will, a living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care. According to the New York State Bar Association, courts have upheld such documents provided they meet certain requirements, even though New York does not have a statute that specifically addresses living wills. New York law does provide for a Health Care Proxy, which allows a person to provide specific instructions and authority to someone they trust regarding his or her health care.
Do you need a last will and testament?
A last will and testament serves many purposes, including providing the testator with the opportunity to divide their assets among friends and family and choose the executor of the estate—the person who will be responsible for carrying out the instructions contained in the will.
LegalZoom’s New York last will and testament also enables you to choose a guardian for your minor children and allows you to defer distributions to minors via trust provisions in the will until they have reached the age of majority.
Moreover, New York specifically allows the creation of trusts in the will for the care of pets (commonly called “pet trusts”), designating a trustee as the beneficiary. The trustee will then provide for the surviving pet.
A valid will based on a last will template can also make New York’s probate process go more smoothly. Probate is the court-supervised process of distributing the estate of a deceased person. In New York, probate begins when the executor of a will files a petition with Surrogate’s Court requesting the issuance of letters testamentary, which allow the executor to transfer assets in the name of the estate. After the executor pays debts, taxes, and funeral expenses, he may distribute assets to beneficiaries as described in the will.
For those estates with a gross value of $30,000 or less, excluding certain types of property, New York has a simplified probate process for estates with a gross value of less than $30,000, excluding certain types of property. An executor must request to pursue this simplified process in writing.
Intestacy: When there is no will
Someone who dies without a will is “intestate,” and the laws of intestacy determine the distribution of her estate. In New York, if a decedent is survived by a spouse but no children, the spouse inherits everything; alternately, if the decedent is survived by children but no spouse, the children inherit everything.
If the decedent has a spouse as well as descendants, the spouse gets the first $50,000 plus one-half of the remaining property, and the descendants inherit the rest. If a decedent is survived by parents but no spouse or descendants, the parents inherit everything, and if a decedent is survived only by siblings, they inherit everything. The laws continue down family lines and include grandparents, cousins, and provisions for descendants of different generations, as well as different legal classifications of children, including but not limited to biological, adoptive, and foster children.
Exceptions to the ability to distribute property
Only property titled in your name and your name only at your death may be distributed according to a New York will; jointly held property may not. Also, although life insurance proceeds may pass to the testator via the will, he or she must be the same beneficiary as listed on the insurance policy itself.
New York also gives surviving spouses a “right of election” to take a share of the decedent's estate. The elective share is the monetary amount “equal to the greater of (i) $50,000 dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) 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.”
Notably, New York has a long list of exempt property that is not considered part of the estate if a person dies leaving a surviving spouse and children. In this instance, items pass directly to the surviving spouse. Alternately, if the decedent has only minor children but no surviving spouse—or a disqualified spouse—certain items pass directly to the children. Such items include but are not limited to, one motor vehicle not worth more than $25,000.
Form a last will in New York
The basic requirements for a New York will include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind, which means capable of making decisions and reasoning.
- Signature: The will must be signed by one of the following:
- Some other person in the testator’s name in the testator’s presence, by the testator’s direction. This person must also sign her own name and address on the will (although the lack of a listed address will not invalidate the will). This person does not count as a witness.
- Witnesses: The testator must declare the will to be his or hers and sign in the presence of two witnesses or acknowledge his or her signature to them, either at the same time or separately. The witnesses also must sign the will within a 30-day period and include their addresses, although failure to provide addresses will not invalidate the will.
- Writing: A will must be in writing to be valid except for nuncupative wills, as described more fully below.
- Beneficiaries: A New York last will and testament may provide for the distribution of property to individuals, associations, corporations, courts, government agencies, partnerships, New York state, and other various entities.
Other recognized last wills in New York
In addition to the last will and testament as described above, New York also recognizes an oral will (“nuncupative will”) and a handwritten will (“holographic will”), but only if made by a member of the armed forces while in service during war or armed conflict, by a person who serves with or accompanies an armed force during war or armed conflict, or by a mariner at sea. Such a will must be clearly established by two witnesses and becomes invalid a year after discharge if made by an armed forces member and three years after it was made by a mariner.
Changing a New York last will and testament
A New York last will and testament may be changed at any time by codicil— -an amendment to the will that must follow the same procedures as the original will—but a codicil cannot wholly revoke a will.
Revoking a New York last will and testament
The revocation of a New York will can be accomplished by another will, a clear writing by the testator indicating an intent to revoke the will in accordance with New York laws governing wills, or by “[a]n act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction performed by: (i) the testator. (ii) another person, in the presence and by the direction of the testator” as long as there are two witnesses, neither of whom was the person performing the act of revocation.
LegalZoom can help you make a last will in three easy steps. LegalZoom also offers other legal products to help you prepare for the future, such as a living will and power of attorney.
Find out more about Last Wills