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New York Oral Will

Most wills are written, signed, and witnessed. In fact, under the New York Estates, Powers and Trusts Law in order for a will to be valid, it must be in writing. There is, however, an exception for orals. An oral will is a will that is made verbally to one or more persons and with the intent of ensuring that the wishes are carried out. Oral wills are also referred to as “nuncupative wills” or “deathbed wills.” In order for an oral will to be probated, the witnesses would have to come forward with the instructions given to them by the testator. As New York estate law generally requires wills to be in writing, oral wills in New York will be enforced under only specific circumstances. Because of the absence of a written record, oral wills are difficult to prove. In order to ensure that your will is legally sufficient, it is wise to consult an experienced New York oral will lawyer at the Law Offices of Stephen Bilkis & Associates.

General will requirements in New York

New York state estate law requires in order for a will to be valid the testator must be at least 18 years of age. In addition, the testator must be of sound mind. Sound means that the testator must know generally know the nature of their property, who their natural heirs are, and what it means to make a will. In New York, the will must be witnessed by at least two competent people. Those witnesses must see the testator sign the will at the end and must sign their names at the end of the will.

The purpose of each of these requirements is to help ensure that it can be shown that the will is authentic. It is much more difficult to prove the terms of an oral will then it is to prove the terms of a written will. To learn more about the requirements for a will in New York, contact an experienced oral will attorney in New York.

Oral will

An oral will is one that is not written, but is spoken to another person or persons. New York is one of the few states which oral wills are valid. However, they are only valid when made under very specific circumstances. Under New York Estates, Powers and Trusts Law § 3-2.2, a nuncupative will is valid in New York only if it was heard by at least two witnesses and it was made by:

  • a testator who is a member of the U.S. armed forces while in actual military or naval service during a time of armed conflict
  • a testator who is a person who serves with or accompanies an armed force engaged in actual military or naval service during a time of armed conflict, or
  • a testator who is a mariner while at sea

However, if the testator survives the danger that prompted the making of the oral will, the will becomes invalid automatically a year after discharge from the armed forces. If the testator is someone who served with or accompanied the armed forces, the will becomes invalid automatically a year after the person has ceased serving with or accompanying such armed force. In the case of a sailor, it expires three years after it was made.

Proving an oral will

Whether or not the will is valid, before a decedent’s assets can be distributed, the will must be proved. This is the purpose of probate. With a traditional written will, probate is initiated when the executor named in the will files it with the Surrogate’s Court along with a petition for probate. If there is any question as to its authenticity, the witnesses and other individuals present at its signing can provide evidence. Once a will is admitted to probate, the executor settles the estate and distributes assets according to the term of the will.

The challenge with an oral will is that it may be difficult for the witnesses to remember all of the terms that the testator provided. Witnesses may have different memories about what was said. In fact, memories may be unreliable because oral wills are typically made during in a very emotional moment when the testator feels that he (or she) may be soon face death. If you have questions about proving an oral will, the best course of action is to discuss your concerns with an experienced New York oral will lawyer.

Will contests

A will contest is a formal challenge to the validity of a will. A will contest is initiated in the Surrogate’s Court that has jurisdiction over the probate proceeding by the filing of an objection to probate by an interested party. While any will is subject to challenge, an oral will is much more susceptible to a will contest. Those who would stand it inherit in the absence of the oral will may challenge its validity arguing that the testator did not make that will, that the testator did not have the mental capacity to make the will, that the will was improperly executed, or that the testator was under undue influence.

Because of the special challenges of an oral will, whether you are the proponent or objectant, if you are involved in a will contest involving an oral will, seek the advice of a New York oral will lawyer.

Invalid oral will

There are several reasons that an oral will may be declared invalid by a New York Surrogate’s Court. For example, the will would be invalid if it was not executed under the circumstances required for an oral will to be valid. The oral will would be invalid due to the passage of time. Or, an oral will might be invalid for other reasons such as the lack of two witnesses or the testator lacked mental capacity.

If an oral will is declared invalid, then the Surrogate’s Court will probate a prior valid will, if any, or administer the decedent’s estate according to New York’s intestate succession rules. Under New York’s intestacy laws identify the decedent’s surviving spouse and children as his (or her) legal heirs. They are entitled to share in the decedent’s entire estate if there is not a valid will. If, for example, the decedent is survived by his spouse but has no children, his spouse will receive his entire estate. If he is survived by both a spouse and children, then his spouse will receive the first $50,000 of the decedent’s estate and the balance will be divided between his spouse and his children, with the spouse receiving 50% and the children sharing the other 50%. The decedent’s children will share in 100% of his estate if he does not have a surviving spouse. Under New York Estates, Powers and Trusts Law § 4-1.1 there are also provisions for when parents, grandparents and other blood relatives will share in an estate.

Contact the Law Offices of Stephen Bilkis & Associates

If you would like to include contingencies in your will, contact the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience representing individuals, executors, fiduciaries, beneficiaries, and heirs, we have the knowledge and resources to help you create a will and overall estate plan that is consistent with your wishes and the requirements of New York law. Contact an experienced oral will attorney serving New York our office at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Staten Island, and Westchester County.

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