The formal requirements for a New York will
Updated: Sep 27, 2022
Most New Yorkers understand that a will must be written or it will not be enforced. This requirement is correctly stated, but it is only one of the many formal requirements for creating a valid will that will be enforced by New York Courts. Understanding the remainder of the formalities for creating a valid will can help a person create such a will and ensure that it will be enforceable.
Beginning at the beginning
As noted above, a valid will must be in writing and signed by the maker of the will (the testator). The maker of the will need not sign the will if it is signed in the name of the testator in his or her name and in the testator’s presence.
Any matter appearing on the will following the testator’s signature will not be considered or invalidate any matter above the testator’s signature, provided however that matter above the signature may be disregarded or stricken if the matter below the signature is required to understand and give effect to the matter above the signature. A person signing in the name of the testator must write his current residence address to the will.
In order for a will to be valid, the testator’s signature must be witnessed by two individuals, who shall each sign the will within 30 days of the date on which the testator signed the will. The testator must make a verbal statement to each witness that the instrument being signed is his will.
Once the will has been properly signed and witnessed, the testator may wonder what do I do with it. Various attorneys may have different advice in this regard, but certain steps are obvious. Make at least two copies of the will and put the original in a safe location, such as a safe deposit box. Give one copy to the executor named in the will and write the location of the original on this copy. Put the second copy in a secure location in your home. Tell both the executor and the alternate executor where the original can be found.
Using an experienced and knowledgeable estate planning lawyer to draft the will is a good way to ensure that the formalities have been satisfied.