and Your Family
New York Holographic Will Lawyer
A will is an estate planning document that dictates the manner in which your assets will be distributed after your death. It also appoints an executor who will be responsible for managing your estate and distributing your assets. If you have minor children, you can indicate in your will who you would like to serve as their guardian. 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 the Surrogate’s Court may conclude that the will is invalid and refuse to follow its terms. There are different types of wills in New York with different requirements. A holographic will is one that is entirely handwritten and signed by the testator. Witnesses are not required. Under New York law, there are special rules that determine whether or not a holographic will will be accepted as legally sufficient. In order to ensure that your will as well as any other estate document that you draft is legally sufficient, it is wise to consult an experienced New York holographic will lawyer who will explain to you what is required to execute a valid will in New York.Requirements for 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 conclude 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 requirements are not followed, the Surrogate's Court judge may refuse to admit the will to probate.Holographic Will
As an experienced New York holographic will lawyer will explain, an exception to New York's formal requirements of execution is the holographic will. A holographic will is a will 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 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. If you created a holographic will and it has been more than a year since you left the armed forces, it is important that you contact a New York holographic will lawyer to execute a new will.
This also 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 Dying Without a Valid Will
A 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.
In New York if you do not leave will your estate will be disposed of according to the laws related to intestate succession. NY EPTL § 4-1.1. If when you pass away you do not have a spouse, but you do have children, your children will inherit your entire estate in equal shares. If you have a spouse but no children, then your spouse will inherit everything. If you have both a surviving spouse and children, then 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 have no spouse and no children, put you have surviving parents, then your parents will inherit your entire estate. If you have no surviving spouse, children, or parents, then your siblings inherit everything. If you die leaving no surviving spouse, children, parents or siblings, then the state will look for other surviving relatives.
If you die leaving only a holographic will and the court determines it to be invalid, then there is a possibility that your property will end up in the hands of New York state. If you are not survived by any relatives, then your property will escheat to the state. For purposes of escheat, relatives include a spouse, parents, children, grandchildren, siblings, siblings of a spouse, aunts, uncles, nieces, nephews, or cousins.
New York has special rules concerning who is legally considered a child for purposes of inheriting. Children who are legally adopted are treated in the same manner as biological children. Unless you legally adopted them, foster children and stepchildren are not automatically entitled to an intestate share as they are not considered to be biological children. Biological children whom you placed for adoption are not entitled to an intestate share of your estate. Posthumous children, meaning children conceived by you, but not born before your death are biological children and are entitled to a share of your estate. If you father a child outside of marriage, the child will be entitled to a share of your estate if paternity is established under New York law. Grandchildren are not automatically entitled to a share of your estate. However, if your child predeceases you, then your child's child (your grandchild) is entitled to a share of your estate.
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. This may result in a distribution of assets in a manner that is different from your intentions. 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, as an experienced holographic will attorney in New York will explain, 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.Notable New York Cases About Holographic Wills
- Matter of Estate of Larocca, 786 N.Y.S.2d 798 (2004): In this case, the court considered the validity of a holographic will that was entirely in the handwriting of the testator. The court held that the will was valid, even though it was not witnessed or signed by witnesses, as long as it was proven to be in the testator's handwriting and that the testator had intended for it to be their will.
- Matter of Estate of Lewis, 782 N.Y.S.2d 329 (2004): In this case, the court considered the validity of a will that was partially in the testator's handwriting and partially typed. The court held that the will was valid, as long as it was clear that the testator had intended for the handwritten portion to be a part of their will. This decision reinforced the principle that holographic wills are recognized as valid in New York, as long as they are in the testator's handwriting and it is clear that the testator intended for them to be their will. The case also highlights the importance of clearly expressing the testator's intent in creating a will, regardless of the form it takes.
- Matter of Estate of Mason, 764 N.Y.S.2d 797 (2003): This case dealt with the validity of a holographic will that was written in pencil. The court held that the will was valid, as long as it was proven to be in the testator's handwriting and that the testator had intended for it to be their will.
Under most circumstances holographic 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 planning documents are properly drafted and executed, it is important to contact an experienced attorney. The experienced holographic will attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have years of experience representing testators, beneficiaries, estate administrators, executors, and other interested parties in matters related to probate, will contests, will drafting and other issues related to estates. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Bronx, Staten Island, Queens, Brooklyn, Long Island, Manhattan, Nassau County, Suffolk County, and Westchester County.