How to make a will in New York

From the dazzling streets of Times Square to the sweeping beauty of the Adirondack Mountains, New York State is full of adventure at every turn. Amidst this dynamic backdrop, it's crucial for New Yorkers to be thinking about and planning for the future — and that includes making a last will and testament.

Every adult should have a will, no matter their age or income. Without one, you die intestate, which means the State of New York has a default plan for distributing your belongings and making decisions about your estate — one that probably doesn’t reflect your personal wishes. With a will, you make important decisions about who should care for your children, look after your pets, inherit your property, and more. These are crucial decisions that shouldn’t be left to chance.

Here’s everything you need to know about making a will in New York.

What makes a will legal in New York?

To make a valid will in New York, you must meet the following requirements:

• You must be at least 18 years old.
• You must be of sound mind and memory. This means you have the ability to make reasonable judgements about the matters in your will (for example, naming a guardian for your minor children).
• Your will generally must be in writing, meaning it exists in a physical form.
• You must sign your will in the presence of at least two witnesses, who also sign it. When you sign, you need to declare to your witnesses that the document they are signing is your will.

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What makes a will invalid in New York?

In New York, several factors can render a will invalid:

1. Lack of capacity: If the testator — the person making the will — isn’t of sound mind at the time of making the will, it can be deemed invalid.
2. No signature: The testator must sign their will, or have someone else sign it at their direction. If they don’t, the will may not be accepted by the probate court.
3. Lack of witnesses: New York law requires that a will be signed by at least two witnesses. If the will wasn’t witnessed, there is no one to confirm to the court that the will was signed by the testator.
4. Fraud or undue influence: If the testator was being pressured to make their will, or it was made fraudulently, it is invalid.
5. Revocation: A testator can revoke their will by creating a new one, or by destroying the original document with the intent to revoke it.
6. Inconsistent provisions: If the will contains provisions that aren’t consistent with New York law, those provisions may be invalidated. For example, in New York, spouses are entitled to a certain portion of your estate in most cases. If you are married and try to leave your entire estate to someone else, that portion of your will may be invalidated because it goes against state law.

Can you make a will without a lawyer in New York?

Yes, you can create a will without a lawyer in New York. Under state law a person has the right to legally represent themselves, which includes drafting their own will.

There are some criteria you must meet to make sure your will is legally binding, like including your name on your document and signing in the presence of witnesses. These rules apply regardless of whether you write your will yourself or hire an attorney to help you.

By adhering to these requirements, you can create a valid will in New York without the need for a lawyer. However, if you have a complex estate or specific legal needs, it may be a good idea to consult with a lawyer to address your concerns. FreeWill assists you in creating your own will; it does not create a will for you or provide legal advice.

Are holographic (handwritten) wills legal in New York?

Holographic wills — which are handwritten wills that aren’t signed and witnessed — are generally not accepted in New York except under specific circumstances. There are exceptions made for members of the armed forces during active military service and mariners at sea, but these wills are only valid for a few years after discharge.

All other wills, including handwritten ones, must adhere to the formal requirements listed above.

Do I need to notarize my will in New York?

In New York, you don’t need to notarize your will for it to be valid. However, having your will notarized makes it “self-proving.” This can speed up the probate process because the court can accept your will without having to contact your witnesses.

How to change or revoke a will in New York

In New York, you can change or revoke your will by following these steps:

Change your will with a codicil

If you want to make a few changes to your will instead of revoking it completely, you have the option to write a codicil. A codicil is a legal document that makes changes to your existing will. It must be signed and witnessed just like the original will.

Revoke your will

You can revoke, or nullify, your will in New York at any time before your death. Revoking your will also revokes any codicils added to the will. Here’s how to revoke your will in New York:

• Physically destroy your will: You can revoke your will by tearing, burning, or otherwise destroying it with the intent to revoke it.
• Write a revocation: You can write a document that states you are revoking your will. This document must be signed and witnessed just like a will.

What happens if you die without a will in New York?

If you die without a will in New York, state law decides how your property is divided. This process is called intestate succession. Here’s the typical order of intestate succession in New York, according to The New York Estates, Powers & Trusts Law:

1. Spouse only: If you’re married without children, your spouse gets your entire estate.
2. Spouse and children (or other descendants): If you’re married with children (or other descendants, including grandchildren or great-grandchildren), your spouse gets the first $50,000 plus half of your remaining estate. Your children or descendants share the other half.
3. Children only: If you have children or descendants but no spouse, your estate will be divided between your children and other descendants. Keep in mind that under New York law, your “children” are defined as your blood or adopted descendants. Any foster children or stepchildren you have aren’t legally considered your children and aren’t entitled to part of your estate unless you list them in your will.
4. Parents: If you have no spouse, children, or other descendants, your parents inherit your property.
5. Siblings: If you have no spouse, children, other descendants, or parents, your siblings inherit your property.
6. Extended family: If you’re not married and have no children, descendants, or immediate family, your estate will be divided among any living extended family, including your grandparents, aunts, uncles, and cousins.

When you die without a will, you leave important decisions about your legacy in the hands of your local court and state laws. Learn more about how dying without a will can impact the people you love.

Estate and inheritance tax in New York

There are two types of taxes that could affect your estate and your beneficiaries after you pass away: estate tax and inheritance tax.

Is there estate tax in New York?

Yes, there is an estate tax in New York.

Estate tax is a tax on the transfer of the estate of a deceased person. It’s calculated based on the value of the deceased person's property at the time of their death.

In New York, the estate tax only applies to estates that exceed a certain value. Estates valued over $6.94 million in 2024 are subject to New York estate tax. The tax rate ranges from 3.06% to 16%, depending on the size of the estate.

Is there inheritance tax in New York?

Inheritance tax is a tax someone has to pay when they inherit property or assets from a deceased person’s estate. New York does not have an inheritance tax.

How much does it cost to make a will in New York?

The cost to create a will in New York varies depending on the method you choose. Here are some options, from cheapest to most expensive:

1. Use a free online will-maker, like FreeWill. With today’s technology, it’s never been easier or more affordable to create a legally-binding will online. Using a reputable online will-maker like FreeWill is a cost-effective and user-friendly way to create a legally binding will that suits your needs.
2. Use a paid online will provider. Paid will providers charge you a fee to create your will documents using their templates. These one-time will forms might be more expensive than other options, but are often more affordable than hiring a lawyer to create your will.
3. Hire a lawyer to draft your will. Hiring a lawyer is the most expensive option but provides the highest level of customization and legal expertise. This is ideal for those with complex estates or specific legal needs.

How to make a will in New York

If you don’t have a last will and testament, now is a great time to make one. Here are the steps to write a will in New York:

1. Write down your wishes. Start by listing who you want to inherit your property and assets. Be clear and specific about what each person will receive. You can also name a guardian for your minor children if you have any.
2. Choose an executor. This person will work with the probate court (called the Surrogate’s Court in New York) to carry out the instructions in your will. Pick someone you trust who is responsible and organized. Make sure to ask them if they’re willing to take on this role. It’s a good idea to choose someone who is a resident of New York; otherwise, they may have to appoint a New York representative, which could slow down the process.
3. Sign your will according to state law. In New York, you must sign your will in the presence of two witnesses, who also sign it.
4. Store your will somewhere safe. It's a good idea to tell your executor where it is.

By following these steps, you can create a simple will that meets the legal requirements in New York.

With today’s technology, it’s never been easier or more affordable to create a legally-binding will online. Using a reputable online will-maker like FreeWill is a great option if you want to make your will for free without falling into the common pitfalls of a handwritten will.

FreeWill’s easy-to-use documents are legally valid in New York and come with thousands of 5-star reviews. It’s also completely free to use and can take as little as 20 minutes to complete.