There is a popular saying among estate planning attorneys: “If you don’t have a Will, New York State has one for you.”
It’s called the Law of Intestacy, and it is rarely what you would have chosen. Under these default rules, your spouse might have to split your assets with your children. Your partner (if unmarried) gets nothing. Your estranged siblings could inherit your home.
I am Russel Morgan, and at Morgan Legal Group, we have drafted thousands of Wills for New Yorkers. We have also litigated cases where “DIY” Wills fell apart in court. In 2026, creating a Last Will and Testament is not just about writing down your wishes; it is about strict compliance with New York Estates, Powers and Trusts Law (EPTL).
This cornerstone guide will walk you through the exact requirements for a valid Will in New York, the dangerous pitfalls of online templates, and the strategic decisions you must make to protect your family.
1. The “Big Three” Requirements for Validity
New York is one of the strictest states in the country when it comes to the “Execution Ceremony” (the signing). Under EPTL 3-2.1, a Will is only valid if:
1. It is in Writing
Nuncupative (oral) Wills are invalid in New York, except for active military personnel during war. You cannot record a video on your iPhone saying “I leave everything to my wife.” It must be on paper.
2. It is Signed at the End
You (the Testator) must sign at the absolute end of the document.
The Pitfall: If you add any text after your signature (like a P.S. note), it can invalidate the entire Will or just that provision.
3. Two Witnesses are Present
You must sign in the presence of at least two witnesses, or acknowledge your signature to them.
- Disinterested Witnesses: The witnesses should not be beneficiaries in the Will. If a beneficiary acts as a witness, the Will might be valid, but their inheritance is void.
- The 30-Day Rule: Both witnesses must sign within 30 days of each other.
2. What a Will Can (and Cannot) Do
Before you draft, you must understand the tool.
What a Will DOES:
- Name Guardians: It is the only document where you can nominate a legal guardian for your minor children.
- Name an Executor: You choose who manages your estate.
- Distribute “Probate” Assets: Assets held in your individual name (e.g., a car, a bank account without a beneficiary).
What a Will DOES NOT Do:
- Avoid Probate: A Will guarantees probate. It is a letter to the Judge asking for permission to transfer assets.
- Override Beneficiaries: If your Life Insurance policy lists your ex-wife, she gets the money, even if your Will says “I leave everything to my new wife.” Beneficiary designations trump Wills.
- Protect from Medicaid: Assets in a Will are available to nursing homes. Only a Trust can protect them.
3. The “Ceremony of Execution”: Why DIY Fails
The number one reason we see Wills contested in the Surrogate’s Court is improper execution.
The Self-Proving Affidavit
When we draft a Will, we attach a “Self-Proving Affidavit.” The witnesses sign this in front of a Notary. This document testifies that you were of sound mind and not under duress.
Why it matters: Without this affidavit, your witnesses must be tracked down after you die to testify in court. If they are dead or missing, your Will could be rejected. Most online forms do not include this critical step.
The “Staple” Rule
I cannot stress this enough: Do not remove the staples.
If a Will shows signs of being unstapled (extra holes, rust marks), the court presumes you tampered with it. This triggers a “Staple Affidavit” requirement and can lead to a full hearing.
4. The Cost: “Cheap” is Expensive
Clients often ask, “Why pay a lawyer $1,500 when LegalZoom is $99?”
The Cost of Cleanup: The cost to probate a defective Will can easily exceed $10,000 in legal fees.
The Cost of Intestacy: If the Will is thrown out, your assets might go to relatives you hated.
An attorney-drafted Will is an insurance policy. You are paying for the professional liability of the lawyer to ensure it works.
5. Specific Clauses for New Yorkers
Living in New York requires specific language.
- Tax Clauses: New York has a “Cliff” estate tax. Your Will should include formula clauses to ensure you don’t accidentally trigger a tax on the first spouse’s death.
- Simultaneous Death: What if you and your spouse die in the same car accident? A standard Will might cause double taxation. We draft clauses to presume who died first for tax purposes.
- Digital Assets: Under NY EPTL 13-A, your Will must explicitly grant authority to access your emails and crypto.
6. When to Update Your Will
A Will is not “one and done.” In 2026, you should review your Will if:
- You get married or divorced (Divorce revokes bequests to the ex-spouse, but doesn’t rewrite the Will).
- You have a child (New York law has complex “after-born child” rules).
- You buy real estate in another state (You may need a Trust to avoid Ancillary Probate).
- The tax laws change (like the 2026 Federal Sunset).
Conclusion: The First Step to Peace of Mind
Creating a Last Will and Testament is the bedrock of adult responsibility. It is the voice that speaks for you when you can no longer speak for yourself.
Do not leave your legacy to chance, to a download button, or to the State of New York. Schedule a consultation with Morgan Legal Group today. Let us ensure your final wishes are honored, precisely and legally.
For more on the laws of intestacy (what happens without a Will), visit the New York Courts Guide to Intestacy.
