How to Create a Will in New York
What Is a Will in New York?
A legal document that outlines how you want your assets distributed and your affairs handled after you pass away.
In New York, this document is officially known as a Last Will and Testament and is governed by New York Estates, Powers and Trusts Law (EPTL) § 3-2.1.
New York Requirements
| Requirement | Details |
|---|---|
| Minimum Age | 18 years old |
| Witnesses Required | 2 — Two witnesses must attest the testator's signature. The testator must declare to each witness that the document is their will, sign in their presence (or acknowledge a prior signature), and the witnesses must sign within 30 days of each other. Witnesses should not be beneficiaries. |
| Notarization | Not required — New York does not require notarization for a will to be valid. However, a notarized self-proving affidavit (EPTL § 3-2.2) is strongly recommended to simplify probate. |
| Self-Proving Affidavit | Available — A self-proving affidavit under EPTL § 3-2.2 allows the witnesses' attestation to be accepted without requiring them to appear in Surrogate's Court during probate. |
| Holographic (Handwritten) | Not allowed — New York does not recognize holographic (handwritten, unwitnessed) wills, except for members of the armed forces during armed conflict, or mariners at sea (EPTL § 3-2.2). Such military or mariner wills expire one year after discharge or return. |
| Governing Statute | New York Estates, Powers and Trusts Law (EPTL) § 3-2.1 |
How to Create a Will in New York: Step by Step
- 1
Inventory your assets and beneficiaries
List all your property, financial accounts, investments, and personal belongings. Decide who should receive each asset and in what proportion.
- 2
Choose your executor
Select a trusted person to administer your estate. In New York, this person is called the 'executor' (or 'executrix'). Consider naming an alternate in case your first choice is unable to serve.
- 3
Name guardians for minor children
If you have children under 18, designate a guardian. New York Surrogate's Court gives strong weight to the parent's written nomination in a valid will.
- 4
Draft your will
Include your full legal name, a statement that this is your will, revocation of all prior wills, and detailed distribution instructions. Address specific bequests and residuary estate provisions.
- 5
Execute the will with proper ceremony
New York requires a strict execution ceremony: you must declare to each witness that the document is your will, sign it in their presence (or acknowledge your prior signature), and ask them to serve as witnesses. Both witnesses must sign within 30 days.
- 6
Attach a self-proving affidavit
Have the testator and both witnesses sign a sworn affidavit before a notary public. This satisfies EPTL § 3-2.2 and avoids the need for witnesses to testify in Surrogate's Court.
- 7
Store your will safely
Keep the original in a secure, accessible location. You may file your will with the Surrogate's Court in your county for safekeeping during your lifetime. Inform your executor of its location.
Will Costs in New York
What you can expect to pay for a will in New York, depending on how you create it.
Common Mistakes When Creating a Will in New York
Failing to follow the execution ceremony
New York has strict formalities: the testator must declare to each witness that the document is their will and request that they serve as witnesses. Failing to follow this precise ceremony — known as 'publication' — can invalidate the entire will.
Ignoring the elective share
A surviving spouse in New York is entitled to an elective share of one-third of the estate (EPTL § 5-1.1-A), regardless of what the will says. Attempting to disinherit a spouse without a valid prenuptial or postnuptial agreement will be overridden by this statutory right.
Using beneficiaries as witnesses
If a beneficiary also serves as a witness, they may lose their bequest unless there are at least two other disinterested witnesses (EPTL § 3-3.2). Always use witnesses who are not named in the will.
New York-Specific Considerations
- •New York probate (handled through Surrogate's Court) can be expensive and time-consuming, especially for larger estates. Executor commissions are set by statute (SCPA § 2307) and can be significant.
- •The surviving spouse has an elective share right to one-third of the augmented estate. This right cannot be defeated simply by giving assets away during your lifetime.
- •New York has a state estate tax with an exemption amount that is adjusted periodically (approximately $6.94 million as of 2024). The 'cliff' provision means that if your estate exceeds 105% of the exemption, the entire estate is taxed from dollar one.
- •New York recognizes the Revised Uniform Fiduciary Access to Digital Assets Act, allowing you to address digital assets in your will.
Create Your Will for New York
Use our guided will generator to create a legally valid will tailored to your state's requirements.
Create Your WillFrequently Asked Questions About Will in New York
- Do I need a lawyer to make a will in New York?
- No. New York law does not require an attorney. However, given New York's strict execution ceremony requirements and complex estate tax laws, working with an attorney significantly reduces the risk of an invalid will or unintended tax consequences.
- Can I disinherit my spouse in New York?
- Not fully. Your surviving spouse is entitled to an elective share of one-third of the augmented estate under EPTL § 5-1.1-A. This right can only be waived through a valid prenuptial or postnuptial agreement.
- What happens if I die without a will in New York?
- Your estate will be distributed under New York's intestacy laws (EPTL § 4-1.1). If you have a spouse and children, the spouse receives $50,000 plus half the balance, and the children share the rest. If you have no surviving relatives, the estate escheats to the state.
- How do I change my will in New York?
- You can modify your will by executing a codicil or drafting a new will that revokes the old one. Any amendment or new will must meet the same execution ceremony requirements as the original will.