Our experienced New York Wills lawyer is capable of handling the preparation of wills and trust and related documents. We have represented trustees, executors, fiduciaries and beneficiaries in estate litigation including will contests.
We wish to satisfy the client’s wishes and at the same time recommend efficient tax planning. With more than 30 years of experience in the five boroughs of New York, we are trained to help you with any estate planning matter in New York.
The best New York wills lawyer providing thorough services
At Ortiz & Ortiz we understand that preparing documents such as wills can be stressful. We work with you and any advisors to understand your values, your financial situation and your family arrangements to help guide you in making wise estate planning decisions.
New York inheritance law – Why do I need a will?
- In the event of death, a will is used to determine how you want your property to be distributed;
- By means of a will, you can appoint an executor of your estate, create the trusts you want, or arrange for the property to be transferred in a particular way;
- If you want to control the appointment of a legal guardian for your children, a will is necessary.
A will is a legal document whose terms must be followed to the letter at the time of its approval. Without an established will, legal disputes could arise between your family members and those close to you to determine your final wishes. If you are already involved or anticipating a dispute, review our section on New York lawyers for inheritance disputes.
What happens if I die without a will in New York?
In New York State, dying without a will results in your property being distributed in accordance with intestate probate laws. In New York, this means that it will be given to your relatives, starting with the closest:
- The list begins with your spouse, who will get everything if you do not have children.
- If you have children, then the property will be divided between them and the spouse, generally favoring the spouse.
- In cases where there are no children and / or spouse, your property will be given to your parents or grandchildren.
- The search will continue through your spouse’s siblings, aunts, uncles, cousins, grandparents, and family members (if you have one). Continue through the family tree until a relative is found.
- If the court cannot find living relatives, the state will take possession of your property.
Note: For more information on the subject, we recommend reading our article “New York intestacy law” and “Testate vs intestate” where we delve into the matter in depth.You might be worried about leaving debts also, in that case please check our blog to learn who is responsible for a debt in case someone dies.
How do I create a will In New York?
The following are basic requirements in order to create a valid will in New York:
- Only a resident who is 18 years or older can make a will that is valid in New York.
- You must be medically determined to be of sound mind and memory, and be writing the will of your own choice (not under duress by someone else). You can read more about it in our undue influence will topic.
- Since you can only have one will at a time, it’s required to include a clause declaring it your last will that also invalidates previous wills. This is to avoid confusion if you decide to change the terms of your will in the future.
- A will must be signed in the sight of two witnesses, who must also be eighteen or older.
- In general your will must be made on hard copy (on actual paper). In other words, it can not be in video, audio or any other digital file.
Note: However, New York law allows nuncupative (oral) and holographic wills in very limited circumstances. You can read the different types of wills below for further information.
If you’d like your will to be “self-proving”, then it should also be signed in the presence of a lawyer:
- You will sign the will;
- Then the witnesses will add their own signatures indicating that they were present when you signed.
- Finally, the lawyer will notarize the will. Though this isn’t required by New York law, it’s been recommended by the American Bar Association.
A will that meets these requirements will be considered “self-proving” when it arrives at a probate court and will likely require no other proof to be considered valid.
What type of wills exist in New York?
Simple will: This is the will that you think of when you hear the term “Last Will and Testament”. A simple will is appropriate to distribute a modest estate that includes uncomplicated assets. It is also used to avoid intestate administration of the estate.
Pour-over will: A “pour-over” will is a term used to describe a specific type of will and last will that is used to “pour” the assets of your estate into a trust at the time of your death. In the absence of a will, the remainder of your trust will be distributed using New York State intestate probate laws. In case you decide to use a trust agreement to distribute the majority of your estate assets instead of a last will and testament, you will also need to execute a pour over will.
Holographic (Handwritten) will: While most states don’t consider holographic wills to be valid, in New York these types of wills are valid and legal but only under very limited circumstances. The maker of a holographic will is required to have testamentary capacity just as with formal wills under New York state law. These must be made by one of the following:
- A member of the U.S. Armed Forces while in naval or military service during war, declared or undeclared, or other armed conflict involving the armed forces.
- A mariner while at sea.
- A person who accompanies or serves an armed force engaged in actual naval or military service during such war or other armed conflict.
Oral or nuncupative will: New York law also recognizes oral (or “nuncupative”) wills but as with holographic wills, only if made by members of armed forces while in actual military or naval service during a war or other armed conflict.
The probate process
When someone disputes the authenticity of the will and considers it invalid, a probate attorney can be used.
Probate cases are settled in court, therefore you will need a New York wills lawyer that will protect your interests even in probate.
- In those cases where the will or estate document is written unclearly and the beneficiaries need the court to interpret them, a probate attorney would be called on to present the case;
- In cases where someone challenges the will that may lead to litigation, the probate attorney would represent the best interests and wishes of the decedent.
Note: To learn more about the probate process you can check our New York probate lawyer section. Our article “Steps to contesting a will” can show you the needed steps in New York to contest a will.
Steps to follow to create a valid will in New York
It is important that you have a reputable New York wills lawyer in these matters, such as our lawyer Norma E. Ortiz who has more than 30 years of experience in drafting wills.
Please take the following information as a general process. To give you precise instructions on your case, it is essential that you contact us and let us know your situation.
# 1 Decision on the property you want to include in your will
- The first thing to do will be to list your most important assets;
- Then decide which items to leave out of your will by other methods.
Note: If you are married each spouse leaves a separate will. You may leave only your share of assets you own jointly with your spouse. Check our blog “Spousal right of election in New York” to learn more about the topic.
# 2 Decision on who inherits your property
This is a decision that will be easy for most people. However, be careful though if you are considering leaving your children or spouse out of the will. Remember to also name contingent beneficiaries, that is, alternates.
# 3 Name an executor to handle your estate
In your will you can name an executor. They will be in charge of carrying out the terms of your will. Likewise, they will supervise the succession process, the payment of your debts and taxes and the distribution of your assets.
The executor does not need training as they can also hire an attorney to help them. The important thing here is that the named executor is a person you trust and is ready to serve.
Note: You can read more about the role of the executor in our article dedicated to the executor of estate in New York and find out if the executor has to show accounting to beneficiaries. You can also learn the difference between an executor and a trustee and an executor vs an administrator. You might also be interested in reading about appointing an executor with the use of New York letters administration.
# 4 Choose a guardian and someone to manage children property
You should name a guardian for your minor children in the unlikely event you or the other parent can’t raise them.
In case you leave property to young adults or children you should also name an adult to manage what they inherit. Make this person the property guardian, custodian under the UTMA law or a trustee to give authority over the child’s inheritance.
# 5 Make your will
While you can make a will yourself this is not recommended. If you have complicated debt, serious family conflicts or serious business holdings we strongly encourage you to hire a lawyer.
Most people will choose to hire a New York Wills lawyer anyway to make their estate plan and this is the best choice to get personalized legal advice.
# 6 Sign your will in New York
In order to finalize your will in New York you must do the following:
- Sign or acknowledge your will in front of 2 witnesses (Holographic wills don’t need to be witness but fully written in your own handwriting);
- Your witnesses must sign your will in front of you and include their address, additionally;
- You must declare to your witnesses that the document you are signing or acknowledging is your will.
Note: New York law will give you 30 days to get your witnesses to observe you signing or acknowledging your will. Ideally, in the best possible scenario, you will have your witnesses sign at the same time as you do.
# 7 Make sure you store your will safely
This is something often overlooked but your will won’t be of much use for your loved ones if they can’t find it after you die.
- Please make sure you keep it in a safe place and clearly labeled;
- Share the location with your executor;
- Don’t keep it in a lock box, place it inside a desk drawer or cabinet. In other words, in a place that makes sense for your family to look for it.
Can I change or revoke my will in New York?
Yes, in New York you may change or revoke your will at any time. To make changes to your will it is better to revoke it and make a new one. In case you have very simple changes to make you could use a codicil which adds an amendment to your existing will.
To revoke your will in NY you can make use of one of the following options:
- Simply making a new will or;
- Making a new will that says that you are revoking your will following the same formalities used to make the original will;
- Destroying, cutting, burning, tearing, canceling, obliterating or mutilating the will.
- Ordering someone else to do all the mentioned previously in front of you and 2 other witnesses;
Do you need a lawyer to make a valid will in New York?
The state of New York does not require you to have an attorney when creating and filing your will. However, having the assistance of an attorney during the process is the best and safest option:
- With our New York wills lawyer oversight and input, you’ll have a safeguard against any complications that may arise after your passing.
- An experienced asset protection attorney in New York will be able to look at your assets and make sure that everything gets addressed in your will without overlooking any detail in the process.
- Consulting an attorney is especially a good idea if you have sizable assets and have complicated directions for how you wish to have them distributed.
- An experienced attorney is the best way to make sure that your wishes will be honored and your loved ones will receive exactly what you intend to leave them.
The New York wills lawyer of Ortiz & Ortiz has over 3 decades of experience and expertise needed to help you lay out your final will and testament and ensure that it is followed to the letter. Call us now to get personalized attention by letting us know your situation.