A will is a legally enforceable declaration of how you would like your property distributed after you pass away. However, it is not enough for you to simply tell another person how you would like your property distributed. It is also not enough to write on a piece paper what you want happen with your property upon your death. In order for a will to be legally enforceable in New York it must created in a certain manner and it must be executed in a certain manner. If these requirements are not followed, a court may find that the will is invalid and refuse to follow its terms. In general, in New York a will must be written and witnessed. A holographic will is an exception to the general requirements. A holographic will is one this is entirely handwritten and signed by you as the testator. It is not witnessed. Under New York law, there are special rules that determine whether or not a holographic will is 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 Westchester County Holographic Will Attorney who will explain to you what is required to draft and execute a valid will in New York.
New 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.
Written Will. New York requires that a will to be in writing to be valid. While most wills are typed, a will can be handwritten.
Signature of the Testator. Your will must bear your signature or some mark that can be interpreted as your signature. NY EPTL § 3-2.1. In addition, the signature must be at the end of the will. However, it is also acceptable that another person sign your will for you, as long as you directed that person to do so. For example, if you are so ill or weak that you cannot physically hold a pen and sign your name, you can direct another person to do so for you.
Signatures of Witnesses. New York law also requires that two witnesses must 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. The purpose of the witnesses is to validate that you freely and intentionally signed the will in order to prevent the perpetration of fraud against the testator.
If these three formal requirements are not followed, the New York Surrogate's Court judge may refuse to admit the will to probate, or the will may be subjected to a will contest.
Requirements for a Valid Holographic WillAn exception to New York's formal requirements of execution is the holographic will. A holographic will is a last will and testament that has been 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. 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 admitted to probate 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.
Nuncupative WillA nuncupative is similar to a holographic will in that under certain narrow circumstances a nuncupative will would be considered valid even though nuncupative wills are not created and executed as required by general New York estate law. A nuncupative will is an oral will. Like a holographic will, in New York a nuncupative will is only valid when made by a member of the United States armed forces during a time of conflict, someone accompanying a member of the armed forces, or a mariner at sea. In order to be valid under those circumstances a nuncupative will must be witnessed by at least two people. NY EPTL § 3-2.2
Consequences of not having a Valid WillOne of the reasons that New York permits holographic and nuncupative wills is to ensure that people in perilous conditions do not pass away without making a will. The consequences of doing so are that your estate may not be distributed in the manner that you prefer. If you do not have a will, the court will determine how your estate is to be distributed based on New York intestacy laws. NY EPTL § 4-1.1. In other words, you have no control over who gets your property.
Under intestacy your spouse and your children will be taken care in that the law requires that your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. The remaining portion of your estate will be distributed in equal shares to your children. If you do not have children, your spouse will get your entire estate, while if you do not have a surviving spouse but you have children, your children will share equally in your entire estate.
While a court will admit a holographic or a nuncupative under specific circumstances, once those circumstances no longer exist, these types of wills quickly lose their validity. If such a will is made by a member of the armed forces, it will become invalid one year after his or her discharge from the armed forces. If a nuncupative or holographic will is made by a person who accompanies armed forces, it will become invalid one year from the time he or she has ceased accompanying such armed force. If made by a mariner at sea, the will becomes invalid three years the time will was made. NY EPTL § 3-2.2(c). If you pass away after your holographic will has become invalid and you have not properly executed a new will, you will have died intestate.
If you have a Holographic WillIf the only will you have is a holographic or nuncupative will, it is critical that you create not just a new, properly executed will, but a comprehensive estate plan. The staff at Stephen Bilkis & Associates, PLLC has extensive experience drafting wills and other estate planning documents and 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 estate plan.