Frequently Asked Questions About Wills In New York State
Authored By: Volunteers of Legal Service (VOLS)
Why Might I Need a Last Will and Testament?
If you die without a Will, you die "intestate" and the State of New York has codified into the law specific divisions of your estate when you die without a Will that may not conform to your wishes. New York divides your estate among a spouse and minor children. If there are none of these surviving, other members of your family may become entitled to part or all of your estate.
Also, if there is no will, a Court may decide who will care for your children and their property if the other parent is not able to care for them or is unavailable.
In addition, a Will allows you to give specific things to people of your choice.
If you are not married in the eyes of the law or live in a "non-traditional relationship" and do not have a valid Will, your partner will not inherit under New York State's laws of intestacy. In this case, without a Will, your partner will, in all probability, not inherit anything.
Do I have to leave something to my Spouse and Children?
New York State protects spouses and minor children from being left nothing in a Will under most circumstances. A surviving spouse has the legal right to claim in court a part of your estate even if your Will says otherwise.
It is perfectly legal to disinherit (not leave anything to) someone over the age of 18. If it seems that you did not mean to disinherit an adult child, then that person has the right to contest your Will in court.
Do I need a Lawyer to do my Will?
You do not need a lawyer to write your Will for you. However, your Will has to follow certain prescribed formalities or it may not be legally binding. For this reason, many people have a lawyer draw up their Will.
Making a simple Will does not usually involve complicated legal issues. You should be able to obtain a book about Wills from your Library or obtain information over the internet to learn what to do; make sure that what you read pertains specifically to New York State.
What makes a Legal Will?
A Will is a written document that says it is your Will and is dated and signed by you in front of two witnesses who should not be otherwise mentioned in the Will. The witnesses do not have to know what it says in your Will, only that you told them that it was your Will and they saw you sign it. The witnesses must sign your Will at the bottom and place their addresses after their signatures to complete the formality.
A notary is not required for a Will in New York State.
Where should I Keep the Will?
The original of your Will must be kept in a safe and accessible place until it is needed. Members of your family or other interested individuals must know where it is kept so that they can get it when it is needed.. A copy of your Will, in most circumstances, will not suffice-the original is needed.
If you put the original of the Will in your Safe Deposit Box, it may take some time to open the Safe Deposit Box as banks sometimes seal the box upon notice of death.
Can my Will name a Guardian to care for my Young Children and someone to manage their property?
If both parents were to die or become unable to care for minor children, a Guardian must be appointed to care for them and manage their property. You and the other parent of the children can name in each of your Wills the preferred person to assist them. Each parent should name the same person. You can name the same person to manage their property as well, or name one person to fulfill each separate function.
Who makes sure that the Wishes in my Will are Carried Out?
It is suggested that you name an Executor in your Will. It may be appropriate to name a second Executor to take over if the first one is unable to act for any reason. The Executor can be one of the people that you leave things to in the Will or a different person. The Executor's job is to make sure that your wishes as stated in the Will are carried out properly.
Can I just Write out my Wishes?
A handwritten Will without witnesses is valid in New York only under very limited circumstances and is not recommended. To be valid at all times, a Will must be in writing, dated and signed by the maker of the Will with two witnesses signing and adding their addresses under their signature. Just writing out your wishes without the witness formality is not suggested.
Can Anyone Challenge my Will after I Die?
Very few Wills are ever challenged in court. If a challenge is made it is usually a relative or close friend who believes that he or she should have been given a share of the deceased's property. For a challenge to a Will to succeed, the person who goes to court must prove that there was undue influence that forced the Will to be written the way it was. Or, that the signature was forged, or the signer was incompetent at the time of signing. There are other challenges that can be made, but these are the major ones. It is for this reason that it may be best to have a lawyer draft and supervise the signing of this important document.
How do I Change my Will?
If, after you write your Will, you decide to make changes in any way, do not make the changes on the Will that you just signed. This may invalidate your Will and cause you to die without a valid Will (die intestate). You can change your will by adding a codicil which, itself, must be signed in the same manner as the Will itself: signed and dated by you in front of two witnesses.
Or, you can write a new Will incorporating all your changes in a new document. In many cases, writing a new Will is the preferred option. Major changes should be made in consultation with an attorney.