Will

A written document that provides instructions for disposing of a person's property upon the person's death. A will generally also names an executor or personal representative to handle the estate. A will must be signed and properly witnessed in order to be valid. Upon the person's death a will must go through the probate process in order to have the deceased's instructions carried out.

The person making the will has the right to revoke or change a will at any time provided that they have the capacity, that is that they are of "sound mind and memory." Therefore, wills are of no legal effect until the testator's death. In other words, being named in a will does not vest a person any rights to that property until the person making the will dies.

Types of Wills

Simple Will

This is the most common type of will. A simple will lists your beneficiaries (including any charities), names your executor, and names a guardian for your children.

Joint Wills

When two people make a will in the same document. This practice is discouraged because a joint will also acts as a contract between the two people making the will and therefore they may give up their right to revoke or change the will. And, most importantly, New York State does not recognize joint wills.

Mutual Wills

Mutual wills allow people to coordinate their estate plans and are often used by spouses.

Other types of wills include:

Holographic Wills- Written in the testator's own handwriting. Recognized in NY under only very limited situations.
Outright Wills- a will that gives everything to a spouse or children- has no tax planning or provisions for minor children or Medicaid planning and may interfere with a person's ability to receive Medicaid.
Wills with Testamentary Trust- a will that creates a trust at death for a specific defined purpose, e.g. to children under the age of majority, to direct assets that may have been disclaimed.
Pour Over Will - A will that directs assets to a trust.

Requirements for a Valid Will

1. Testator must be at least 18 years sound mind and memory.

There is a presumption that a person has the capacity to execute a will and the required capacity to execute a will is a low threshold. A person's capacity to create a will and turns on inquires such as whether the testator understood the nature and consequences of executing a will; understood the nature and extent of the property being given under the will; and whether the testator knew who would be considered the natural objects of the bounty and his relationship with them.

2. Testator must intend to create the will.

3. The Will must be properly executed.

A general matter, a Will must be in writing; signed by the testators at the end of the will- all language after the testator's signature will be ignored; there must be 2 attesting witness and the testator must acknowledge that it is his will to those witness. New York EPTL 3-2.1 governs will execution.
*Beneficiaries under the will should not be witnesses to the will because all gifts to them will be void.

Estate Planning Glossary

Will FAQs

Does a will transfer all of my property?

No. Not all property will pass via your will. A complete disposition of your property will require more than a will. Examples of property that are not distributed by a will are:

Property held in joint tenancy- which will automatically be transferred to the other joint tenants.
Proceeds of a life insurance policy that has a named beneficiary.
Property held in trust- which will be distributed according to the trust documents.
Proceeds of a retirement plan with a named beneficiary.
Bank accounts held in trust or with Transfer on Death (TOD) designation.
Property subject to a Spousal Election- it is not possible to disinherit a spouse in New York.