When it comes to New York estate planning, you've probably heard a few things about how the probate system functions. For example, people often say that estate planning is only for the wealthy, that you don't need a Will if you want to leave everything to your spouse, and that New York law allows for handwritten Wills. However, these are actually myths. One of the definitions of the word "myth" is "a widely held but false belief or idea." There is often a kernel of truth inside the myth, so it is important to know what the law really says.
Myth #1: A Handwritten Will is Valid in New York
Most people believe that handwritten Wills are legally valid in New York. However, this law only applies to members of the armed forces.
Truth: A Handwritten Will is Usually Invalid in New York
The law says there are three situations when a handwritten Will is acceptable:
(1) "If made by a member of the armed forces upon the expiration of one year
following his discharge from the armed forces.
(2) If made by a person who serves with or accompanies an armed force engaged in actual military or naval service upon the expiration of one year from the time he has ceased serving with or accompanying such armed force.
(3) If made by a mariner while at sea, upon the expiration of three years from the time such will was made." This law is in the chapter on Estates, Powers, and Trust Laws, known as EPT § 3-2.2(b).
As you can see, even if someone makes a Will under these circumstances, they expire in one to three years. New York courts can accept a handwritten Will but only in narrow circumstances. For example, if you write out your Will but don't have it properly witnessed, it is invalid. Or, if you have a document containing some handwritten parts and others that are typed, the courts will throw it out. The easiest way to avoid this situation is to use a service like FastWill that instructs you on observing the formalities and helps you write a legally valid Will.
Myth #2: New York Requires Wills to be Notarized
You may have heard that a Will needs to be notarized to be valid in New York
probate court. Although this is true in some other states, New York doesn't require you to notarize all legal documents.
Truth: A Will Doesn't Need to be Notarized in New York
You don't need to notarize your Will in New York, but there are some advantages to notarizing it. A "self-proving" Will is one that has been properly notarized. When a
self-proving Will is submitted to the New York Surrogate's Court, the court will accept it as
valid. The people who witnessed your Will won't need to come to court to testify that they knew you were signing a Will and that they participated in the signing. If you notarize the Will, then this can save your heirs time during the probate process. If you want to make a self-proving Will, you and your witnesses must sign an affidavit attesting to your identities. But if you want to skip this step, your Will is still legal in New York.
Myth #3: If Your Spouse Will Inherit Everything, You Don't Need a Will
Many people believe they don't need a Last Will and Testament since all of their assets will be given to their surviving spouse.
Truth: Your Spouse Doesn't Inherit 100% of Your Estate in New York
This myth is based on the false idea that a spouse inherits everything under New York law. If you have a surviving spouse and children, then your spouse won't inherit everything. He or she will inherit the first $50,000 of your estate and split the remainder with your children. So, if you die without a Will in New York, your children will receive roughly half of your assets. If this is not acceptable to you, and you really do want your spouse to inherit all of your assets, then you must write a Will.
Myth #4: If You Have a Will, It's Likely to be Challenged
Many people fear that if they write a Will, someone will challenge it, which will cost the estate a significant amount of money. Will disputes are often expensive, but true Will challenges in New York are rare.
Truth: It's Not Easy to Challenge a New York Will
For someone to challenge a New York Will, they will have to have a legitimate reason. A Will can be challenged when:
1. The Will isn't properly signed and witnessed.
2. There is undue influence, which means that someone had the opportunity to influence the deceased and that the influence rose to a level of coercion that made it nearly impossible for the deceased to resist. This is a high bar that few family members can prove.
3. The deceased didn't have testamentary capacity when he or she signed the Will. In New York, courts assess whether (i) the deceased knew they were executing a Will, (ii) whether that person knew the nature of the property that the Will was disposing of, and (iii) knew who the beneficiaries or heirs were and the nature of their relationship with them.
Myth #5: All Estates Must Go Through Probate in New York
Most people think that every estate in New York has to go through the probate process, especially if there is a Will. In reality, there is an exception for small estates.
Truth: Not all Estates and Assets Go Through New York Probate
In New York, estates valued at under $30,000 do not need to go through probate when there is a Will. Smaller estates are "administered" rather than probated. It's also good to remember that some assets are handled outside of the probate process, such as insurance proceeds, the proceeds from a retirement account, and accounts with named beneficiaries.
