A Last Will & Testament That Holds Up in Court

You die "intestate," and EPTL § 4-1.1 decides who inherits. If you are survived by a spouse and children, the spouse takes the first $50,000 plus half the balance and the children share the rest — regardless of what you would have wanted. The court, not you, also picks who administers the estate and who raises minor children. A will is the only way to make those decisions yourself.

No. This is the single most common misconception. A will is the document that opens probate in the Surrogate's Court — it does not avoid it. The court must validate the will, appoint the executor, and supervise the administration before assets are distributed. If your goal is to keep your estate out of court and private, a funded revocable living trust, not a will, is the tool that accomplishes that.

Two. Under EPTL § 3-2.1, the testator must sign at the end of the will (or acknowledge an earlier signature) in the presence of at least two attesting witnesses, and both witnesses must sign within one thirty-day period. A will signed with only one witness, or witnessed improperly, is invalid — and the estate then passes by intestacy as if no will were ever written.

A handwritten ("holographic") or oral ("nuncupative") will is valid in New York only for members of the armed forces during conflict and mariners at sea, and even then only briefly, under EPTL § 3-2.2. For everyone else, the will must be typed and executed with two witnesses under EPTL § 3-2.1. Online templates can satisfy the law, but they routinely fail the execution formalities, which is exactly what gets them thrown out.

A self-proving affidavit is a sworn statement signed by your witnesses before a notary at the time of signing, under SCPA § 1406. It lets the Surrogate's Court admit your will to probate without having to locate and question the witnesses years later, when they may be unavailable or have died. It is not strictly required, but we include one with every will because it can save the estate substantial time and expense.

Not entirely. Under EPTL § 5-1.1-A, a surviving spouse is entitled to an "elective share" equal to the greater of $50,000 or one-third of the net estate, including many non-probate assets. A will that leaves the spouse less can be overridden if the spouse files an election within six months of letters issuing. Only a valid prenuptial or postnuptial waiver, properly executed, changes this result.

Your executor collects your assets, pays debts and taxes, and distributes the estate under the will. Choose someone organized, trustworthy, and willing to serve — often a spouse, adult child, or trusted friend, sometimes a professional. New York limits who may serve, and a non-resident may need a New York co-fiduciary. We always name at least one successor in case your first choice cannot serve.

Review your will after every major life event — marriage, divorce, the birth or adoption of a child, the death of a named beneficiary or executor, a move into or out of New York, or a significant change in your assets. Marriage and divorce in particular can dramatically alter how the law treats an old will. As a baseline, revisit it every three to five years even if nothing major has changed.

A will takes effect only at death, passes through the public Surrogate's Court probate process, and can nominate guardians for minor children. A revocable trust takes effect the moment it is funded, lets a successor trustee manage your affairs if you become incapacitated, avoids probate, and keeps your estate private. Most complete plans use both: a trust to hold the assets and a pour-over will as the backstop and guardian nomination.

Yes. A disappointed heir can contest a will on grounds such as improper execution, lack of testamentary capacity, undue influence, or fraud. The strongest defense is a will drafted by an attorney, executed with full EPTL § 3-2.1 formalities, and backed by a self-proving affidavit. We can also include a carefully drafted no-contest ("in terrorem") clause to discourage challenges from beneficiaries who would otherwise inherit.

Yes. Even with a fully funded revocable living trust, you need a pour-over will to catch any asset that was never retitled into the trust and to nominate guardians for minor children — something a trust cannot do. The pour-over will directs any stray assets into the trust so everything is distributed under one consistent set of instructions.

We quote a flat fee in writing after your consultation, so there are no hourly surprises. A simple will for an individual costs less than a coordinated will-and-trust plan for a married couple with real estate and minor children. The far greater cost is dying without a valid will — intestacy and will contests routinely cost families many times the price of having the document prepared correctly.