When it comes to Estate Planning, two of the most important legal documents that New Yorkers should consider are wills and trusts. Both are essential for ensuring that your assets and property are distributed according to your wishes after your death. However, they serve different purposes and have different legal requirements. In this article, we'll explore what you need to know about wills and trusts in New York State and counter some of the most common estate planning myths.
Wills in New York State
You already know that a will is a legal document that outlines how you want your assets distributed after your death. But you should also know the basics that make a will legal in New York. Here’s how to create a legal will in New York State:
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The person must be “of sound mind” and at least 18 years old.
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The will must be in writing and signed in the presence of two witnesses who are also over 18 years old.
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The witnesses do not have to sign the will at the same time as each other.
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The will must have an executor.
One of the most common mistakes people make when drafting a New York will is getting confused about the witness requirements. In fact, many blog posts about New York state law suggest that the witnesses must sign in the presence of each other and at the same time as the person making the will (the testator). Although that’s the law in some jurisdictions, that is not the law in New York. The testator can sign in front of the two witnesses or acknowledge to the witnesses that the document is in fact the testator’s will. The actual statute referencing this requirement is EPT § 3-2.1(a)(2)(“The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately.”)(Emphasis added).
Myths About New York Wills
Some states require wills to be notarized, but you don’t need a notary to validate a will in New York. However, if you want to make the probate process go faster, you can make your will “self-proving” by using a notary. The idea of a “self-proving” will is probably why some people get confused about the notary process. So let’s unpack what that term means.
A self-proving will is accepted by the probate court - referred to in NY as Surrogate’s Court - without the court contacting the witnesses to verify that they signed the document. To make a self-proving will, you and the two witnesses go to a notary and sign an affidavit attesting to your identities and confirming that all three of you knew you were signing a last will and testament.
Another common myth is that handwritten or holographic wills are perfectly legal in New York. The truth is you can’t properly do a handwritten will in New York unless you are a member of the armed forces. EPT § 3-2.2(b) states that a handwritten will is valid only when made by:
“(1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.
(3) A mariner while at sea.”
Even if the will is made under these circumstances, the will expires one year after the service member ends their service or three years if made by a mariner at sea.
The reason for the myth is that courts will accept a handwritten will if someone manages to follow all of the same formalities that apply to typewritten wills. So, if a person in New York writes out a will, it’s only valid if it meets all of the other formalities of a will - including having the testator’s signature and the names, addresses, and signatures of two witnesses. If a will is a hybrid document with some handwriting and some typewritten parts, it is invalid. Since courts frequently throw out wills that don’t meet these formalities, don’t bother making a handwritten will. You can make a legal New York will using FastWill in just minutes.
Trusts in New York State
A trust is a legal arrangement in which you transfer assets to a trustee, who then manages those assets for the benefit of the trust's beneficiaries. There are many types of trusts and they can be used for a variety of purposes, such as avoiding probate, minimizing taxes, and protecting assets from creditors. Here are some key points to keep in mind when creating a trust in New York State:
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You must be of sound mind and at least 18 years old to create a trust in New York State. See EPT § 7-1.14 (“A natural person who creates a lifetime
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trust shall be eighteen years of age or older.”)
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Your trust must be in writing and signed by you.
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You must name a trustee who will manage the assets in the trust.
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You must name one or more beneficiaries who will receive the assets in the trust.
If it is a revocable trust, you may be able to retain control over the assets in the trust during your lifetime. But if you create an irrevocable trust, you cannot change or revoke the trust or remove assets once it has been established.
Myths About Trusts in New York
The most common myth about trusts is that if you have a trust, you don’t need a will. A trust is useful for saving money on estate taxes, maintaining privacy, and avoiding probate. Some people think that a will is therefore irrelevant. However, if you have minor children you still need a will that designates a legal guardian in the event that you die unexpectedly.
Another common myth is that when a trust is established, your assets will simply pass through the trust as you intend. However, once it is set up, then you must fund the trust with assets. This generally means that you must retitle the assets so that they are in the name of the trust rather than in your name.
For reference, see the actual law, EPT § 7-1.18, which states “A lifetime trust shall be valid as to any assets therein to the extent the assets have been transferred to the trust. For purposes of this section, (a) transfer is not accomplished by recital of assignment, holding or receipt in the trust instrument, and (b) in the case of a trust of which the creator is the sole trustee, transfer shall mean in the case of assets capable of registration such as real estate, stocks, bonds, bank and brokerage accounts and the like, the recording of the deed or the completion of registration of the asset in the name of the trust or trustee, and in the case of other assets a written assignment describing the asset with particularity.”
Attorneys often do not walk clients through this step. The bottom line is that once your trust is set up you have to retitle the assets. You might also benefit from a pour-over will. FastWill can help you create a trust with a pour-over will that is legal in New York.
