Even though only about half of Americans currently have a will, having one as part of a comprehensive estate plan is the best way to guarantee that your loved ones will inherit the assets you’ve worked a lifetime to accumulate. If you do not have a valid will, the state will use intestacy laws to distribute your estate.

Creating a will does not have to be complicated or expensive. Ideally, you will work with your estate planning attorney to develop a personalized estate plan. However, many people ask, “Can I write my own will and have it notarized?”

New York and other states have requirements and regulations that are used to determine whether a will is valid. Even though your will does not take effect until you die, it is important to create a legally valid one now and keep it updated throughout your lifetime.

Testamentary Capacity

In order for a will (Last Will and Testament) to be valid, the testator (the person writing the will) must be at least 18 years old and of sound mind. The testator will specify how they want their property and accounts to be distributed to their beneficiaries. If the testator has minor children or pets, they can list important information about who will care for their children and pets and appoint a legal guardian for their children in their will.

Finally, the testator can identify their personal representative or executor. This person will be responsible for filing the will with the probate court, identifying estate assets, paying bills and taxes, and distributing the assets to the beneficiaries.

Being of sound mind means that the testator understands why they are making a will and the impact of their decisions described in it on other people. They must also know the extent of their personal estate and understand that they are legally giving their assets and property to other people when they die.

Allegations that a testator did not have full mental capacity and awareness of what they were doing when writing a will are frequently used to challenge the validity of the will.

Voluntary Intent

The testator must voluntarily write and sign the will. If the testator is coerced into writing a will or under undue influence when making decisions about their estate, the document is not a valid, legal will.

Written and Signed

There are some exceptions, but most states require that a written and signed copy of the will be available. To be valid in New York, a written will is required.

Some states will accept holographic wills. These handwritten wills that are not properly witnessed may be challenged more often than a legally signed and witnessed version. A handwritten will must be dated to be valid.

The testator must sign the will. If the testator is physically incapable of signing their will, they may appoint another person to sign for them. This delegate must sign the will in the testator’s presence, under their clear direction and authority.

Witnessed

Most states require two witnesses present when the testator signs the will. These witnesses will also sign the will to attest to the fact that they saw the will being signed. The witnesses are required to sign the will within 30 days of watching the testator sign the will or hearing confirmation from the testator that the signature on the will is theirs.

Witnesses must be at least 18 years of age. Whenever possible, choose witnesses who do not benefit from the will. Some states require disinterested witnesses to help ensure that the testator is not coerced when writing or signing the will.

Does New York require a notarized will?

No, New York state law does not require that a will be notarized. However, if the witnesses and testator sign the will in front of a notary, it is considered a “self-proving affidavit.” Some courts will accept this affidavit instead of requiring witness testimony in probate court after the testator dies. Taking this extra step can speed up the probate process.

How can you modify your will?

Births, deaths, marriages, and divorces are key events that may trigger people to make changes to their will. To make a change, the testator can create a new will or update their current will with a codicil or amendment. State laws for codicils are similar to laws for writing a valid will. If you update your will with a new version, destroy your outdated will so your intent to revoke your previous will is very clear.

Work with your New York City Estate Planning Attorney to create a comprehensive and personalized estate plan that satisfies state requirements and minimizes the risk of legal challenges, ensuring your assets are protected and properly distributed to your beneficiaries.

If you have questions about transferring wealth across multiple generations or want to learn about how to protect your assets and property with a comprehensive set of estate planning tools, contact us.