New York – Creating a Will

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DIFFICULTY: Legal assistance is recommended

Initial Filing Fee: $0

Upon your death, your assets are distributed to beneficiaries listed in your will. In other words, a will lets you determine where your assets will go, except for those assets held in trust, in life insurance policies, and in retirement plans. Failure to properly create or “execute” a will in accordance with New York law will result in the automatic transference of your wealth to your next of kin, i.e. to your children, or if you have no children then to the next closest member of your family. In New York, as in most states, if you have no will and no living relatives, your assets are transferred to the State of New York.

Step 1: Create Your Will

In New York, you can create a will in one of two ways:

Option 1: Write your will. As a general matter, New York law does not allow individuals to make handwritten wills. In New York, a person must sign their own will in the presence of two witnesses, and follow other formalities set forth in EPTL 3.2-1, the section of New York law relating to wills.

Option 2: Have a lawyer draft your will, especially if you have a more complicated estate, where additional provisions for determining beneficiaries may be necessary. Licensed attorneys often prepare even simple wills, and the use of an attorney reduces risk. Having a legal professional prepare your will ensures that all assets are correctly and legally distributed.

Step 2: Secure Your Will

Your original will should be kept in a safe location, preferably a safe deposit box, or in a fireproof box kept in your home. Bear in mind, you don’t want your will to be too much of a secret either; upon your death, someone will need to find the will to make sure your wishes are carried out. Some people choose to store their wills in safety deposit boxes, or leave a copy with their attorney to ensure that it is easily accessed should it be needed.

Step 3: Inform Your Executor

Inform your executor, as well as members of your family, where you intend to keep your will and where they should look to find it. Be careful to avoid having multiple, differing copies of your will laying in different places; this is what causes the sort of confusion that can lead to disputes over your assets.

Step 4: Update Your Will

Check your will periodically to make sure everything it says is what you want it to say. “Codicils” are revisions to your existing will, and may be used to update it. However, in this day and age it is not necessary to use a codicil; given that both a codicil and a newly printed will both require that all formalities be followed, it is better to simply draft a revised copy of your will, re-print it, and re-execute it in accordance with the formalities in New York. If you are updating your will, the assistance of an attorney is recommended.

Additional Resources

 • New York State Bar Association Information on Creating Wills