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Estate, Powers and Trusts, § 3-2.1: Execution and Attestation of Wills; Formal Requirements

Writing a will and preparing other estate planning documents may seem like a difficult task as it is unpleasant to think about death. However, we all want to make sure that our loved ones are properly cared for after we pass away. A last will and testament that is properly constructed based on New York Estate law will not only ensure that your assets are distributed according to your wishes and that a person you trust will be responsible for managing your estate. In order for a will to be valid and admitted to probate, you must sign it at the end. In addition, at least two witnesses must have witnessed you sign it, and they must also sign the will. The witnesses must be present when you sign the will, or you must acknowledge to each witness that you did indeed sign the will. The witnesses must be adults and cannot be anyone you name as a beneficiary in your will. A witness may not also be a beneficiary. If you leave a witness a testamentary gift, unless there are at least 2 other qualified witnesses, that gift will fail. Failure to properly execute your last will and testament will cause a delay in the probate process and possibly subject it to a will contest. To create a will and other estate planning documents that are specifically tailored to accomplish your personal goals, contact an experienced New York will lawyer to guide you through the process.

Example

In re Stachiw, 2009 NY Slip Op 52439 (N.Y. Surr. Ct., 2009) the decedent, Mike Stachiw, was in the hospital suffering from end-stage liver disease. Mike's former spouse, Daria Stachiw submitted a will to the Surrogate's Court that was executed not long before his death while Mike was in the hospital. Mike's surviving sisters objected to the will, arguing that the will that Daria attempted to admit to probate failed to comply with New York's statutory requirements. Upon question one of the witnesses, Mr. Francois, the court learned that Mr. Francois did not properly witness the will. As a result, the court determined that the will was invalid and refused to admit it to probate.

Consequences of an invalid will

As a New York will lawyer will explain, i the Surrogate’s Court judge refuses to admit a will to probate because it was not properly executed, the decedent will be treated as if he (or she) died intestate. In New York the distribution of an intestate’s property is determined by the intestate succession statute. The statute outlines which of the decedent’s heirs will receive the decedent’s property. In New York the surviving spouse and children are a decedent’s primary heirs. The surviving spouse is entitled to 100% of the decedent’s estate if the decedent did not have any children. If the decedent did have children, then the surviving spouse is entitled to the first $50,000, plus 50% of the remaining estate. The children get the other 50% of the estate in equal shares.

Intestacy rules apply only to probate property. Probate property is all real or personal property that the decedent owned individually or as a tenant in common. Probate property includes personal property such as vehicles, clothing , jewelry, and collectibles; real estate owned individually or as a tenant in common, such as the family house or condo; and monies owed to decedent such as tax refunds, interest, and royalties.

As a will attorney in New York will explain, nonprobate property is not affected by the existence of a will or by intestacy. Nonprobate property includes property owned as joined tenants with a right of survivorship; payable-on-demand bank accounts; proceeds from life insurance with a named beneficiary other than the decedent’s estate; and retirement accounts with named beneficiaries

Related Statutory Provision

1. Nuncupative and holographic wills: Estates, Powers and Trust, § 3-2.2

Estate, Powers and Trusts, § 3-2.1- Execution and attestation of wills; formal requirements

(a) Except for nuncupative and holographic wills authorized by 3-2.2, every will must be in writing, and executed and attested in the following manner: (1) It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and by his direction, subject to the following: (A) The presence of any matter following the testator's signature, appearing on the will at the time of its execution, shall not invalidate such matter preceding the signature as appeared on the will at the time of its execution, except that such matter preceding the signature shall not be given effect, in the discretion of the surrogate, if it is so incomplete as not to be readily comprehensible without the aid of matter which follows the signature, or if to give effect to such matter preceding the signature would subvert the testator's general plan for the disposition and administration of his estate. (B) No effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator, or to any matter preceding such signature which was added subsequently to the execution of the will. (C) Any person who signs the testator's name to the will, as provided in subparagraph (1), shall sign his own name and affix his residence address to the will but shall not be counted as one of the necessary attesting witnesses to the will. A will lacking the signature of the person signing the testator's name shall not be given effect; pro- vided, however, the failure of the person signing the testator's name to affix his address shall not affect the validity of the will. (2) The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately. (3) The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will. (4) There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will.

(b) The procedure for the execution and attestation of wills need not be followed in the precise order set forth in paragraph (a) so long as all the requisite formalities are observed during a period of time in which, satisfactorily to the surrogate, the ceremony or ceremonies of execution and attestation continue.

Contact the Law Offices of Stephen Bilkis & Associates

Making a will is an important step in ensuring that your assets are cared for and distributed in the manner of your choosing once you pass away. The experienced will attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have over 2 decades of experience representing clients in estate matters including drafting estate documents, will contests, and estate litigation. We are here to help. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients on estate matters in the following locations: Brooklyn, Bronx, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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