It is never too early to start estate planning. However, while going through that process, you may ask yourself what makes a will legal.
Writing a will lets you detail your plans and wishes for the assets you leave behind. You can use your will to ensure that the people you care about the most will receive adequate financial support even if you pass away unexpectedly.
A will is not something you can draw up on a whim. It must meet certain conditions before it can be deemed legitimate.
Let’s talk more about wills and how they become valid throughout the rest of this article.
What Are the Elements That Make a Will Legal in New York State?
In New York State, wills are only legal if made by someone at least eighteen years old. The person who wrote the will must also be of sound mind and memory. The testator should have also signed the will in front of appropriate witnesses for it to be upheld as legal by the courts.
The age requirement for legal wills in New York State is self-explanatory. We dive deeper into the other two elements below.
Sound Mind and Memory
How can someone be deemed to be “of sound mind and memory”? Generally speaking, the state of New York may find a sound mind and memory testator if they could sufficiently comprehend what they were doing while writing their will.
For example, the testator should know what writing a will means for their estate and loved ones. They should know that the courts will use the document’s contents to distribute their assets when they pass away.
The testator should clearly identify the beneficiaries they are naming in their will. The will may be declared invalid if the testator has trouble recalling details about their relationships with specific beneficiaries.
A testator must also understand the value of the assets they give to their beneficiaries. They also should comprehend how they divide their assets among their potential recipients.
Simply put, testators must fully grasp what they are doing when writing their will. If that were not the case, the court would declare the document illegitimate.
Notably, a person does not need to be of sound mind and memory 100% of the time to write a will. For example, older individuals suffering from a condition that causes memory loss can still compose a will as long as they are fully aware of what they did while putting the document together.
How the testator’s condition develops after they wrote the document would not lead to invalidation. The will should still hold up in court.
Signed in front of Witnesses
Next up, let’s discuss the signature and witness requirements for wills composed in New York State.
The testator should be of sound mind and memory when they affix their signature to the will for it to be deemed legitimate. The signing should also take place in front of two witnesses.
The witnesses in question should be at least eighteen years old. They must also be disinterested in the contents of the will. That means the witnesses cannot also be beneficiaries in that document.
Witnesses should not be your relatives or people who are related to you by marriage.
You must be careful when choosing a witness for your will signing. If your witnesses are also your beneficiaries, they may not receive the benefits you gave them.
Take the time to search for qualified witnesses to avoid putting anyone’s inheritance at risk.
Consider asking your friends, neighbors, or co-workers if they are willing to serve as witnesses. Your estate planning attorney can also be one of your witnesses if you feel comfortable choosing them. They can still take on that role even if you have already appointed them to be the executor of your estate.
Do You Need to Notarize Your Will?
While discussing your plans to draw up a will, some friends and family members may tell you to contact a notary public. They may tell you that notarizing your will is a must if you want it to hold up in court.
You should know that notarizing your will is not a requirement in New York State. The courts may still validate your will, whether it was notarized or not.
However, there is an advantage to getting your will notarized. Notarizing your will increases the chances that the court will validate it without delay. That should allow your beneficiaries to obtain their inheritance soon after your death.
We want to point out that a notary public will only notarize a will if the testator and witnesses are also present. If that sounds like too much trouble, you can bypass this step.
How Does a Will Signing Take Place?
A will is not a document you can sign in a few seconds and hand to someone else for safekeeping. The process of signing a will is a bit more complicated than that.
Allow us to detail the steps involved, so you have a clear idea of what to expect during your will signing.
The Testator Declares That They Are Signing Their Will
Before affixing their signature to the document, the testator should declare to the witnesses that they are about to sign their will. Your lawyer will write down what you need to say during that part of the ceremony.
The Testator Signs the Will
The testator can now sign the will.
Remember to sign at the end of the document. If you add your signature anywhere other than the end of the will, the court may not recognize the following passages Basically, the rest of your will may be rendered meaningless by the improper placement of your signature.
Avoid making that mistake during the will signing ceremony.
The witnesses should also pay attention to you throughout this process.
The Witnesses Attest to the Will Signing
When you finish signing the will, your witnesses can sign a statement attesting to their role in the proceedings. The witnesses should attest to the fact that they saw you sign the document without the presence of any undue influence. They must also attest to your being of sound mind and memory when you signed the document.
The witnesses must sign their names and residential addresses in their respective statements.
Both witnesses should attest to you signing the will within thirty days of signing. They do not need to submit their statements simultaneously for it to be considered valid.
Do the Witnesses Need to Be in the Same Room When You Sign Your Will?
The process we detailed above is probably what you expect from a standard will signing ceremony. Crucially, will signings do not always need to unfold that way in the state of New York.
For instance, the witnesses do not need to be in the same room when you sign your will. You can sign your will ahead of time and then acknowledge that you did so to your witnesses at a later date.
New York State does not obligate testators to sign or acknowledge the signing of their will to their witnesses at the same time. However, you can do so separately if that would be more convenient for you and your witnesses.
The witnesses can also be in the same room when you sign your will, but they do not need to provide their statements immediately after. They can still provide their statements later if they are in a rush that day.
Is a Handwritten Will Legal in New York State?
Most wills in New York State are documents drawn up with the help of a lawyer. Your lawyer will tell you the details you should include, and they will double-check the document to ensure that the courts will recognize it.
As long as you get advice from your lawyer, you should have no trouble drafting a proper document.
But what about handwritten wills? Will those documents also be recognized by New York State?
The state of New York may accept handwritten or holographic wills, but that will only happen in specific circumstances.
The state will recognize a holographic will if a member of the United States armed forces wrote it or someone who accompanies the armed forces while engaged in active military or naval service during a war or armed conflict.
New York State will also recognize holographic wills that mariners wrote who were at sea at the time.
Can You Legally Change Your Will in New York State?
The will you created when you were fifty years old may no longer be an accurate reflection of your desired plans for your estate at sixty. Circumstances have changed significantly over the past ten years, and you now wish to change the terms of your original will.
Is changing your will an option if you live in New York State? You will be glad to know that such an option is available to New Yorkers.
The process of changing your will is easy enough.
It would be best if you started by revoking your old will. To do that, you can either make a new will or destroy the old document. Of course, someone else can also destroy the old document for you.
After revoking your old will and creating the new document, you must meet the same requirements to ensure that the court recognizes it. The process of changing your will can be time-consuming but going through that trouble is more than worth it if you wish to secure your estate and your desired beneficiaries.
Can You Legally Change Your Will in New York State without Revoking It First?
If you would rather not go through the trouble of revoking your will and drafting a replacement, you can create a codicil instead.
A codicil is a legal document used to update a will. For example, you can make specific changes to the document you wrote previously using a codicil.
Testators can use codicils to change the list of beneficiaries in their will. They can also use the codicil to distribute the contents of their estate differently. Choosing a new executor of your estate is also possible using a codicil.
There are no real limitations on what you can do with codicils. Legally, you can even include as many codicils as you want.
The only real issue with using codicils is that they can cause confusion. If you do not take the time to cross-check your codicil with the contents of your will, you may end up creating contradictions.
By the time you notice those contradictions, it may already be too late for you to provide clarification. As a result, the court may issue a ruling regarding your will that does not accurately reflect your wishes.
Codicils are good for making a few changes to your existing will but keep it to that. Rewrite your will if you know that you will be making widespread changes.
You should also know that you must validate wills and codicils similarly. To ensure that the court recognizes the codicil, you must sign it in front of two witnesses and prove that you are of sound mind and memory while doing so.
Reach out to us at the Alber Law Group if you want to create a will that the courts in New York State will recognize. We can guide you through the will creation and validation processes, so do not hesitate to request our assistance.
