Creating a valid and enforceable will in New York is an essential step in estate planning.
The Ten Steps
1. Determine Your Assets and Beneficiaries:
- Make a list of all your assets, including real estate, bank accounts, investments, personal property, and any other valuable possessions.
- Decide who you want to inherit your assets, including family members, friends, charitable organizations, or other beneficiaries.
2. Choose an Executor:
- Select a trustworthy and responsible individual to serve as the executor of your will. This person will be responsible for administering your estate, paying debts and taxes, and distributing assets according to your wishes.
3. Consider Guardianship for Minor Children:
- If you have minor children, designate guardians who will care for them in the event of your death. Choose individuals who share your values and are willing and able to take on this responsibility.
4. Draft Your Will:
- Write your will using clear and unambiguous language. Include your full name, date of birth, and address.
- Clearly state that you are of sound mind and executing the will voluntarily.
- Specify how you want your assets to be distributed among your beneficiaries.
- Name your chosen executor and alternate executor in case the primary executor is unable to serve.
- Include provisions for guardianship of minor children if applicable.
5. Sign Your Will:
- Sign at the end of your will in the presence of at least two witnesses, tell each witness that the document is your will, and use witnesses who are not beneficiaries. A gift to a witness is void unless two other disinterested witnesses also signed (EPTL 3-3.2(a)(1)). Even then, a witness who would inherit without the will keeps up to that intestate share (3-3.2(a)(3)).
- Witnesses must also sign the will, ideally at the same sitting; under EPTL 3-2.1 both witnesses must attest your signature and sign within one 30-day period (measured from the first witness's signing).
6. Consider Adding a Self-Proving Affidavit:
- Include a self-proving affidavit with your will, signed by you and your witnesses, and notarized by a notary public.
- A self-proving affidavit helps expedite the probate process by providing sworn statements attesting to the validity of the will without the need for witness testimony in court.
7. Store Your Will Safely:
- Keep your original signed and witnessed will in a safe and secure location, such as a fireproof safe, your attorney's vault, or the Surrogate's Court's will-safekeeping service (SCPA 2507); a safe deposit box in your sole name may require a court order to open after death (SCPA 2003).
- Inform your executor and trusted family members or friends of the location of your will.
8. Review and Update Your Will Regularly:
- Review your will periodically, especially after major life events such as marriage, divorce, birth of children or grandchildren, or significant changes in your assets.
- Make updates or revisions to your will as needed to ensure it reflects your current wishes.
9. Consider Consulting with an Attorney:
- While it's possible to draft your own will, consulting with an experienced estate planning attorney helps confirm that your will is validly executed and addresses issues a form will not.
- An attorney can also help you minimize estate taxes, protect assets, and create a comprehensive estate plan tailored to your specific needs and goals.
10. Inform Your Loved Ones:
- Communicate with your loved ones about your estate plan and the contents of your will.
- Provide copies of your will to your executor and key family members or beneficiaries, and discuss your wishes openly to avoid confusion or disputes after your passing.
By following these steps and carefully drafting your will in accordance with New York laws, your final wishes should be documented in a form New York courts can enforce.
