Cameron Miranda
In New York, a will is a written document that takes effect after the testator's death. It outlines their wishes for their belongings and assets, as well as the guardianship of their children. Only certain individuals have the legal right to obtain a copy of the will, such as beneficiaries, executors, and heirs-at-law. These individuals may need to send a letter or file a petition with the Surrogate's Court to access the will. The State Archives also provides resources to locate probate records, including wills. While witnesses are required to execute a will, they do not need to know the contents of the will, only that they are signing a will.
| Characteristics | Values |
|---|---|
| Who can make a will? | Any person over 18 who is "of sound mind and memory" |
| What are the requirements for making a will? | The will must be in writing, witnessed by at least two people, and signed at the end by the testator or by another person in their presence and at their direction. |
| Who can view a will? | Beneficiaries, executors, heirs-at-law or distributees, and the testator's attorney |
| Where should the original will be kept? | In a safe and easily accessible place that the family knows about, such as a fireproof vault |
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What You'll Learn
Who can be an executor
In New York, an executor is the person in charge of making sure a person's last will and testament are followed correctly. Being an executor is a serious job that comes with legal responsibilities, and it can be time-consuming. Executors must act in the best interests of the estate and its beneficiaries, and they are responsible for following a significant number of rules, as well as interacting with probate courts, lawyers, and accountants.
In New York, the executor is usually chosen by the person who wrote the will. Anyone can be an executor as long as they are over 18 years of age, of sound mind, and do not have a felony record. However, it should be a considered choice. Usually, the executor falls to a lawyer, accountant, or family member. If there is no will or the will does not specify an executor, a court may appoint someone to handle the proceedings.
Executors in New York are often paid for their time because of the heavy workload that is typically required. The size of the fee is determined by state law, which ties executor compensation to the estate's value. For example, an executor can expect 5% on the first $100,000, 4% on the next $200,000, and 3% on the next $700,000. The percentage decreases as the estate's worth increases and caps out at 2% on anything above $5 million.
In New York, if the will does not name an executor or the named executor does not serve, a person not named in the will might seek to be appointed to represent the estate. Such a person is referred to as an "administrator c.t.a." Letters may also be granted to a person not otherwise entitled to serve if all the beneficiaries are eligible to serve and they all consent to the appointment.
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Witness requirements
In New York, there are specific witness requirements that must be met for a will to be valid. Generally, there must be two witnesses who are not beneficiaries of the will and are not receiving anything under the will. These witnesses must be able to attest to the testator's cognitive function and identity, confirming that the testator is of sound mind and memory and understands the terms and implications of the will. While witnesses must confirm the testator's signature, they do not need to witness the testator signing the will. Witnesses can sign the will within 30 days of the testator's signature.
During the COVID-19 pandemic, Governor Cuomo temporarily amended New York State law to allow remote witnessing and notarization of wills by video conferencing until August 20, 2020.
It is important to note that witnesses may be required to speak in probate court if there are conflicts about the terms of the will or questions about the testator's mental capacity at the time of signing. Therefore, it is generally recommended to select impartial witnesses who do not have an interest in the estate.
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Eligibility to obtain a copy
In New York, only certain individuals have the legal right to obtain a copy of a will. These typically include beneficiaries, executors, heirs-at-law, or distributees. If you are named as a beneficiary or executor in the will, you have the right to obtain a copy. Heirs-at-law or distributees, or those who would have inherited from the deceased if there was no will, may also have the right to obtain a copy. This can often be as simple as writing a letter stating who you are, why you are entitled to a copy, and what you are looking for.
If you do not receive a response to your letter, you can file a petition with the Surrogate's Court to obtain a copy of the will. An estate litigation attorney can assist you in drafting this petition, which must include the full name of the deceased, the date of death, the specific reasons for compelling the will's production, and the names of the individuals or entities holding the will. Your attorney will also file the Order to Attend with the appropriate Surrogate's Court in the county where the deceased resided at the time of their death.
It is important to note that the original will is typically required, and a copy may not always work. The original will is often kept among the testator's possessions or with the attorney who drafted it. In New York, the custodian for probate records after 1787 is the Surrogates' Courts in each county, and the State Archives has created a probate pathfinder to help researchers determine where to locate these records.
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Where to find a copy
In New York, only certain individuals have the legal right to obtain a copy of a will. These typically include beneficiaries, executors, and heirs-at-law or distributees. If you are named as a beneficiary or executor in the will, or if you would have inherited from the deceased if there was no will, you have the right to obtain a copy.
If you are eligible to obtain a copy, you can start by writing a letter to the person holding the will. The letter should state who you are and why you are entitled to a copy of the will, as well as what you are looking for. If you do not receive a response, you can file a petition with the Surrogate's Court to obtain a copy. An estate litigation attorney can assist you in drafting this petition, which must include the full name of the deceased, the date of death, the specific reasons for compelling the will's production, and the names of the individuals or entities holding the will.
The State Archives has created a probate pathfinder to help researchers determine where to locate New Yorkers' probate records, which include wills, estate inventories, and letters of administration relating to deceased persons' estates. The custodian for probate records after 1787 is the Surrogates' Courts in each county.
It is important to note that the original will is typically needed, as a copy usually will not work. The testator can keep the original will among their possessions, preferably in a fireproof vault, or leave it with the attorney who drafted it.
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Legal capacity to make a will
In the state of New York, any person who is over 18 and who is "of sound mind and memory" can make a will. This is referred to as having "legal capacity".
Having legal capacity to make a will means that, at the time of making the will, the testator understands what they are doing by making and signing a will and deciding how to divide up their property. They must also be aware of the kind and value of the property they are including in their will and understand their relationship to the people they are giving their money or property to.
It is important to note that one does not have to be 100% mentally sound to make a valid will. For example, a person with dementia may still be able to make a will if there are periods of time when they are mentally aware. However, they must be aware of what they are doing at the time that they make the will, not at some later point.
If an individual does not have a will, New York State has rules for dividing their belongings, with some going to their spouse and/or children. If none are around, other family members might get a share.
To make a will in New York, an individual must be over 18 and have legal capacity. They must also follow the state's legal requirements, which include signing the will and having witnesses confirm their signature.
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Frequently asked questions
Only certain individuals have the legal right to obtain a copy of a will in New York. These typically include beneficiaries, executors, and heirs-at-law or distributees.
If someone is refusing to provide access to a will, it is recommended to consult an attorney specializing in estate and probate matters. They can assist in drafting a petition to compel the production of the will.
In New York, a will must be witnessed by at least two people, who can be anyone except the person signing the will (the testator). The witnesses do not have to sign at the same time as each other or the testator but must sign within 30 days of the testator signing. The witnesses must understand that they are witnessing a will being signed.
It is not advisable for the testator to keep the will among their possessions, as it may be presumed that they intended to revoke it if it cannot be found after their death. The testator can keep the will among their possessions in a fireproof vault or leave it with the attorney who drafted it.
An executor ensures that the wishes in a will are followed correctly. It is helpful to name an executor in the will, as well as a backup executor if the first choice is unable to do it.
