A last will and testament is the estate document that most people think about when thinking about how to transfer their wealth when they pass away. A will is one of the most flexible tools for transferring wealth. It allows individuals almost complete freedom in determining who gets their property. While most people leave the bulk of their estates to their spouses and children, many others also leave their property to other relatives, friends, employees, and institutions. What some people do not realize is that there are many different types of wills. However, under New York law, regardless of the type of will you decide to create and regardless of what you decide to include in your will, in order for your will to be valid, it must comply with New York’s estate rule. One of the most basic rules is that a will must be witnessed. This requirement is critical because if there is any question as to the authenticity of the will, the witnesses can be called to testify as to what they observed at the execution ceremony. There is, however, an exception to this general rule. A holographic will is a type of will that is not witnessed. A holographic will is valid in New York only under very specific, unusual circumstances. Otherwise, it will not be admitted to probate. If you have questions about the validity of a holographic will, contact an experienced Nassau County holographic will lawyer who understands the legal requirements for a will to be valid in New York.
Requirements for a valid will in New YorkLike most other states New York law has very specific requirements as to how a will must be executed in order for a court to determine that the will is valid. The general rules are that the will must be signed at the end by the testator. If the testator is physically unable to sign, it can be signed with the help of another person or by another person at the direction of the testator. If another person signs the will for the testator, he must do so in the presence of the testator. There must also be two witnesses to the signing of the will who also sign the will. NY EPTL § 3-2.1(a)(4) If these formal requirements are not followed, the Surrogate's Court judge may refuse to admit the will to probate, or the will may be subjected to a will contest.
Holographic willA holographic will is a special type of will with distinct requirements for execution. A holographic will is entirely handwritten by the testator. It is signed by the testator but there are no witnesses. NY EPTL § 3-2.2. The purpose of New York law's requirements that two witnesses observe the testator sign the will is to reduce the possibility of forged wills being probated. So a holographic will does pose proof problems since there are no witnesses. Because of the unusual circumstances that people in the military may find themselves in, a holographic will is valid if written by a member of the United States armed forces or someone accompanying a member of the armed forces during a time of conflict. It is only valid for up to a year after the testator ceases serving with the military. At that point the testator must execute a new will. If the time a holographic will is due to expire the testator lacks testamentary capacity, then the holographic will will remain valid for until the expiration of one year from the time the testator regains testamentary capacity. This means that if the testator never regains testamentary capacity, the holographic will will remain valid.
Note that while holographic wills are only valid in New York under limited circumstances, they are valid is several other jurisdictions. Under New York Estates, Trusts & Powers Law §3-5.1, the New York Surrogate’s Court will be considered valid and admissible in New York as long as it was valid in the “jurisdiction in which the testator was domiciled, either at the time of execution or of death.”
Regardless of the circumstances under which you created the will, if you have a holographic will, contact a Nassau County holographic will lawyer to discuss executing a new will. In order to ensure that your will reflects your current wishes and to ensure that it will be probated, it is best to have a will that was executed according to the requirements of New York law, including the requirement of having 2 witnesses.
ExamplesUnwitnessed will not executed while testator in the armed forces. In the Surrogate’s Court case of In re Probate of the Last Will and Testament of Bouvier, 2012 NY Slip Op 30565 (N.Y. Surr. Ct., 2012), the decedent executed a will on September 11, 2000, naming Hilda Hinman as the executor. The will was signed by the petitioner and properly witnessed. However, on May 5, 2008, shortly before he died, the decedent handwrote another will leaving his house, car, bank, cash and investment accounts to various people. The will was written on a notepad, and at the end concludes with "Per My Wishes. Maurice B. Bouvier. 5/30/08." The document was not acknowledged or witnessed.
At the time that the decedent wrote the handwritten will, he was 74 years old and residing in Blossvale, New York. He was not a member of the armed forces engaged in armed conflict or a mariner at sea. As a result the Surrogate’s Court concluded that the handwritten document was not a holographic will authorized by New York Estates, Trusts & Powers Law §3-2.2 to dispose of decedent's property. As a result, the court found that the 2000 will was valid and would be probated.
State of residency critical. In the case of In Re Minter's Will, 292 N.Y.S.2d 530 (N.Y. Surr. Ct., 1968), the will of Harry Minter was submitted for probate in the Erie County Surrogate’s Court. The will was handwritten, signed by Minter, but not witnessed. It was executed in Virginia in 1934. Under Virginia law, if a will is handwritten and signed by the testator, it would be considered valid and probated. Evidence was presented proving that Minter did reside in Virginia on the day the will was executed. Evidence was also presented proving that the signature on the will was indeed Minter’s. Satisfied that the will was valid in Virginia at the time it was executed and that the testator was a resident of Virginia at the time, the Surrogate ordered that the will be admitted to probate in New York. As an experienced Nassau County holographic will lawyer will explain, if Minter had been a resident of New York at the time he made the will, it would not be a valid holographic will.
Consequences of dying without a valid willIt is important to understand that a holographic will will only be probated if it was executed under extremely specific and extremely rare circumstances. If those exact conditions are not present a holographic will is not valid and will not be probate. This means that if the person executed a prior will and that will is valid, the decedent’s property will be distributed based the terms of the prior valid will. If there was no prior will, then the decedent will be considered intestate. In New York if you do not leave will your estate will be disposed of according to the laws related to intestate succession. According to the law your surviving spouse and your children will inherit your entire estate. Your spouse will be entitled to slightly more than your children. Your spouse will inherit the first $50,000 of your estate, plus 50% of the balance, and your children will inherit the other 50% of the balance of the estate. If you do not leave both a spouse and children, your estate will be distributed as follows:
In other words without a valid will the state will decide who gets your property. You will have no say. Thus, having a valid will is critical to your estate plan. In New York there are 2 factors that can lead to a holographic will being invalid, potentially resulting in intestacy: 1. You did not execute it while in the armed forces under the required circumstances; or, 2. You did execute it while in the armed forces under the required circumstances, but your circumstances changed.
Contact the Law Offices of Stephen Bilkis & AssociatesUnder most circumstances handwritten, unwitnessed wills are not valid in New York. If you have a handwritten will, in order to ensure that your wishes will be followed after you pass away it is critical that you draft and execute a new will that is in compliance with New York law. To ensure that your will and other estate documents are properly drafted and executed, it is important to contact an experienced holographic will attorney serving clients in Nassau County. The staff at the Law Offices of Stephen Bilkis & Associates will help you develop an overall estate plan that reflects your individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.