NEW YORK WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
New York Estate Powers and Trusts Law (NY E.P.T.L. ยงยง1-1.1, et. seq.).
Wills:ย NY E.P.T.L, Art. 3.
Trusts:ย NY E.P.T.L, Art. 7.
New York Will Requirements.
To be a valid testamentary document, a New York will must be in writing and be signed at the end of the document by a mentally competent testator who is at least 18 years old at the time of signing.ย A will may also be signed by someone acting at the direction of a mentally competent testator in the testatorโs presence.ย If someone else signs for the testator, the signer must also include his or her own signature and address.ย ย
New York wills must also be signed by two witnesses, who must either observe the testatorโs signature itself or the testator acknowledging that the signature is valid.ย The witnesses must sign the will within 30 days of each other.ย The New York statute asks for each witness to affix his or her residential address to the document, as well, but also provides that a missing witness address does not invalidate an otherwise compliant will.
Under New York law, a person who stands to benefit under a will can act as a witness.ย However, any bequest to the interested witness is void.ย An interested witness can, though, still receive whatever intestate share he or she would have received had the testator not had a will (not to exceed the amount of the voided bequest).ย
New York does not require wills to be notarized.ย But if a will is accompanied by a notarized affidavit executed by the witnesses and declaring that the will is genuine and was validly executed, the will is treated as โself-provingโ in probateโwhich means the witnesses do not need to testify before the probate court to establish the willโs authenticity (unless it is challenged).
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Amendment, Revision, and Revocation of New York Wills.
New York wills may be amended or revoked by either executing a codicil or creating a new will intended to amend or revoke the prior will.ย A codicil is a written addendum to an existing will that satisfies all formalities required for creation of a valid will.
New York wills can also be revoked via the testatorโs execution of a document stating the testatorโs intent to revoke the will and meeting all formalities required to create a valid will.ย Or revocation can be accomplished through physical destruction of an existing will by the testator (or by someone acting at the testatorโs direction in the testatorโs presence).ย New York law specifically cites intentional โburning, tearing, cutting, cancellation, obliteration, or other mutilation or destructionโ as satisfactory methods of revoking a will.
If a will is revoked, all codicils associated with the revoked will are also deemed to be revoked.
Holographic and Oral Wills.
New York law recognizes holographic and nuncupative (oral) wills but only in very limited circumstances.ย To qualify as a holographic will, a document must be written entirely in the handwriting of the testator.ย And the provisions of an oral will must be clearly established by two or more witnesses.ย Importantly, neither holographic nor nuncupative wills are effective testamentary instruments in New York unless made under one of the following circumstances:
- By a member of one of the branches of the United States armed forces during a period of war or armed conflict in which U.S. servicemembers are engaged;
- By a person serving with or accompanying armed forces engaged in war or armed conflict; or,
- By a mariner while at sea.
Even if otherwise valid and effective, an oral or holographic will expires one year after the testator is discharged from or ceases accompanying the armed servicesโor three years after the will is made by a mariner at sea.
New York Trust Requirements.
In New York, living trusts must be created through a written document signed by the trustโs grantor.ย Unless the grantor is also the sole trustee, the trust instrument must also be signed by at least one trustee.ย Additionally, the trust instrument must either meet the requirements of New York law for conveyance of real estate or be signed by two witnesses.ย ย
Living trusts may be created in New York by any natural person aged 18 or older.ย A New York trust can be created for any lawful purpose.ย Any revocation or amendment to a New York living trust must be made in writing and executed by the person authorized to revoke or amend the trust.ย Unless the trust instrument says otherwise, the amendment or revocation instrument must satisfy the execution requirements necessary to create a trust.
Any assets to be transferred into a trust must be formally titled into the name of the trustโsuch as by executing a real estate deed, re-titling financial accounts, or otherwise executing a written assignment specifically identifying the property.ย A simple recitation of trust property within the trust instrument is insufficient.
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Summary Probate Proceedings: Under New York law, an estateโs executor can request a simplified, summary probate proceeding if the estateโs gross value, after deducting real estate and amounts reserved for surviving family members, is less than $30,000.ย If an estate qualifies for streamlined probate, the executor can pay creditors and distribute assets to beneficiaries without first going through the full, formal administration process.
New York Estate Taxes:ย Large estates in New York can potentially be liable for estate taxes at both the state and federal levels.ย The exemption amount for New Yorkโs estate tax is $5.85 million, about half of the $11.58 million federal exemption for 2020.ย Moreover, New York estate-tax exemptions are not portable between spouses, as with federal exemptions, and the state-level tax is applied to the entire estate (not just the excess above the exemption) if the total value exceeds the exemption by more than 5%.ย As a result, mitigating estate taxes and maximizing exemption value (such as through A/B trusts) is a concern for a higher percentage of New York estates than for estates in most other jurisdictions.
Re-Titling of Trust Assets:ย In New York, assets intended for transfer to a living trust must be formally and officially transferred by a written instrument or they will not be removed from the probate estate.ย Reference to the assets in the trust will not accomplish the transfer.
Self-Settled Trusts:ย If a grantor of a trust is also beneficiary, the trust will not provide protection against that grantorโs creditors under New York law.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
