A will is an estate planning tool that dictates the manner in which your assets will be distributed after your death. In order to be valid, New York law requires a will to be executed with certain formalities. NY EPTL § 3-2.1. If those formalities are not followed a court may find that the will is invalid and refuse to follow its terms. However, there are several different types of wills that require different formalities. A holographic will is one this is entirely handwritten and signed by you as the testator. It is not executed using the formalities such as witnesses, that are normally required for a will to be properly executed. Under New York law, there are special rules that determine whether or not a holographic last will and testament will be accepted as legally sufficient. In order to ensure that your will as well as any other estate planning document that you draft is legally sufficient, it is wise to consult an experienced Queens holographic will attorney who will explain to you what is required to draft and execute a valid will in New York.
Requirements for a valid will in New YorkNew York law has very specific requirements that must be followed in order for a Surrogate's Court judge to find that a will is valid and admit it to probate. Generally, the will must be signed at the end by the testator, or by another person at the direction of the testator. There must also be two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4) The witnesses must be present when the testator signs the will, or the testator must acknowledge to each witness that he or she did indeed sign the will. 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 willAn exception to New York's formal requirements of execution is the holographic will. A holographic will is one that was entirely handwritten by the testator and was not attested to by witnesses. NY EPTL § 3-2.2. The purpose of New York's requirements that two witnesses observe the testator sign the will is to reduce the possibility of fraudulent wills being admitted to probate. As a Queens holographic will lawyer will explain, a holographic will poses proof problems since no one witnessed the testator drafting it or signing it. However, because of the unique circumstances members of the armed forces may find themselves in, a holographic will will be considered valid only in the limited circumstance where it is written by a member of the United States armed forces or someone accompanying a member of the armed forces during a time of conflict. A holographic will becomes invalid 1 year after the testator ceases serving with the armed forces.
This means that if you are not in the armed forces and decide to jot down on a piece of paper who gets your property after you pass away, you will have failed to create a legally effective holographic will.
Consequences of not having a valid willA holographic will is a unique type of will that will only be considered valid if it is made under certain extreme conditions. In all other circumstances, a holographic will will not be valid and will not be probated. If this happens, then your estate will be treated as if you died without leaving a will.
Having a valid will is critical to your estate plan. If you execute a will that will not be admitted to probate or that will not survive a will contest then your estate will be distributed according to New York's intestacy laws. NY EPTL § 4-1.1. As experienced holographic attorneys in Queens, we have seen far too many occasions in which the lack of will resulted in distribution of a testator's assets in a manner that was probably inconsistent with the testator's wishes. The law requires that where there is a spouse the bulk of the estate will be distributed to him or her. Children will also receive a significant share of the estate. New York intestacy rules do not allow for individuals who are not blood relatives or adopted children to inherit. Suppose that in your holographic will you stated that you want your estate to be divided equally among your spouse, your best friend, and your favorite charity. If your holographic will is considered invalid because it was not made under the strict requirements of New York law, then your wishes will not be fulfilled. In fact, under New York law the only way that a non-relative will share in your estate is if you make such a provision in a valid will.
Contact the Law Offices of Stephen Bilkis & AssociatesUnder most circumstances holographic wills are not valid in New York. To ensure that your will and other estate planning documents are properly drafted and executed, it is important to contact an experienced holographic will attorney serving Queens. The staff at Stephen Bilkis and 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: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.