Okay, New Yorkers, it’s time to test your knowledge of the Empire State. Here’s a quick quiz on fun facts about New York:
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What’s the tallest building in New York City?
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Which country gifted the state with the Statue of Liberty to Liberty?
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Which park is the oldest state park in the United States?
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What is the name of the court that handles probate of wills in New York?
If you guessed that the tallest building is One World Trade Center (1,776 feet), that France gave us Lady Liberty, that Niagara Falls is the oldest national park (1885), and that the Surrogate’s Court handles probate and estate proceedings in the New York State Unified Court System, congratulations, you must be a native New Yorker!
Obviously, I slipped an un-fun fact into this list because going to probate court is even worse than going to the dentist. But if you need to make a will in New York, then you’ll have to start thinking about some of the weird quirks in New York law, including the structure of its court system. Unlike almost every other state in America, the “New York Supreme Court” is not the state’s top court. (New York’s highest court and court of last resort is the Court of Appeals.) And while many states call the court that handles the administration of wills and estates “probate court,” in New York, it’s the Surrogate’s Court. The Surrogate's Court of the State of New York handles all wills and all estates of people who die without a will.
Dying Without a Will in New York is Bad
If you intend to make a last will and testament in New York, then you have to observe very specific rules, or else the court will treat the will as invalid. But don’t let that stop you from making a will. If you don’t have a will when you pass away, the State of New York will write one for you, and they’ll do it by dividing your estate according to their preferences, not yours. For example, if you’re not married but living with a partner, the law basically treats your partner like a stranger, and they probably won’t inherit anything. If you have a spouse and minor children, the state will divide your assets among them, but other family members will be left out. And if you don’t have a spouse and children, the law lists other relatives who will inherit, regardless of whether you had a relationship with them when you were alive. Basically, it doesn’t matter if you’ve always hated your second cousin, Irene, if you die without a will and she’s the only person left, she’s inheriting your empire of Beanie Babies and NBA NFTs.
The horror! Now that I’ve scared you, let’s get into the nitty gritty about what makes a will valid in New York.
New York Will Requirements
For a will to be legal in New York, it has to meet the following requirements:
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The person making the will has to be at least 18 years old.
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The person making the will must be of sound mind, which means they have the mental capacity to understand they are making a will.
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The person making the will must intend to create a will that will dispose of their property.
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The person making the will has to observe certain formalities (see next section for more).
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The person making the will must have made that will freely and voluntarily, without being coerced or influenced by another person.
Just so you know, the person making the will is known as the “Testator” under the law.
Will Formalities in the State of New York
A New York will must be in writing, signed by the testator, and witnessed by at least two individuals who also sign the will in the testator's presence. Let’s break this down further.
Signature
In order for a will to be properly executed, the testator must sign at the bottom of the document. Anything written below the signature line will be ignored by the Surrogate’s Court.
Witnesses
There is a place at the bottom of the will where the witnesses can sign and put their addresses. The witnesses do not need to have to read the will, but they have to attest that the person making the will said it was their last will and testament. For example, in one case, a janitor in a nursing home witnessed a will while he was cleaning a bathroom. But the janitor didn’t know what he was signing - he thought it was just a “legal document” and the will was invalidated. The way to avoid this problem is to just tell the witnesses “This is my last will and testament.”
The witnesses have to sign the bottom of the will, attesting that they actually watched the testator sign it.
The two witnesses can’t be people who are mentioned in the will, because that could be considered undue influence.
You can read the rules about executing a will in EPTL 3-2.1. The law doesn’t require both witnesses to sign at the same time as each other. The testator has two choices for how he or she executes the will. Option one is for the person to sign in front of both witnesses at the same time. Alternatively, the testator can sign the will and then acknowledge the signature to the witnesses later in time. However, the witnesses must sign the will within thirty days of the testator signing.
Notary Requirements
New York State doesn’t require a last will and testament to be notarized.
Registration and Deposit
In New York, you don’t have to formally register or deposit your will with a court or a state office. If you want to file the will with the Surrogate’s Court of the County where you live, you can do that, but it isn’t required.
FastWill strongly recommends storing your will in a safe place where it will be accessible to your executor and/or loved ones when you die. In addition to paper copies, you should keep electronic copies of all important documents. When you work with FastWill, you can upload your documents to a secure cloud.
