A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed.
If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed… and to whom.
A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
In New York, the laws regarding the valid execution and witnessing of a Will are set forth in the New York Estates, Powers and Trusts Code, Article 3 Substantive Law of Wills, Part 1 Who May Make and Receive Testamentary Dispositions of Property, What Property May be Disposed of by Will, Section 1.1, and, Part 2 Execution of Wills, Section 2.1.
In New York, any person eighteen (18) years of age, or a minor lawfully married, and of sound mind may make a Will. (See: Section 3-1.1) “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
A Will must be in writing, signed by the testator and by two witnesses. Each witness must sign the Will in the testator’s presence within thirty (30) days of the testator’s signing and should place their address of residence with their signatures. (See: Section 3-1.1) If the testator cannot physically sign his name he may direct another party to do so. The person who signs the testator’s name must state on the Will they did so, must sign their own name and state their address of residence. This party may not be one of the two required witnesses. (See: Section 3-2.1)
Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not a beneficiary of the Will. In New York, any gift to a witness is void unless there are at least two disinterested witnesses to the Will. (See: Section 3-3.2)
At this time New York does not allow for self-proving a Will.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified wills lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local wills attorney to discuss your specific legal situation.
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