The basics of writing a will

The Law Office of Jeffrey L. Weinstein

Formalities of a Will

One of the simplest ways to ensure that a person’s family members are cared for after death is to have a valid will in place. A will is a legal instrument created by a testator—or who the will is made for—which dictates the testator’s wishes upon his death. While New York and all other states have intestacy statutes, or statutes with distribute property automatically for individuals without a will, a will ensures the testator still has control over the disposition of their property after death.

According to the EPTL, a will may be created by anyone 18 years or older who is of sound mind and memory at the time the will is written. An object to be devised must first qualify as “property,” either personal or real, any and all property can be willed. Interestingly enough, property may only be given to those who have the capacity to hold it.

In terms of formalities, a valid will must be made in writing and signed at the end by the testator. Alternatively and in limited exceptions, there may be a “proxy” who signs the will for the testator which requires the proxy’s own name, signature, and address to be included at the end of the will. A major requirement is that a will must be signed by the testator in the presence of two witnesses. Not only does there have to be these two witnesses, but they must be disinterested witnesses. This requires each witness to not be receiving anything under the will, otherwise their signature is invalid.

As a result, the interested witness would receive the lesser of their bequest in the will or their intestate share. However, if there is an interested witness and still two non-interested witnesses, the supernumerary rule will prevent the bequest to the interested witness from being terminated.

As you may notice, the witness rule can be complicated and difficult to access since even one small bequest under the will, even indirectly, can result in a problem. An inexperienced New York City probate attorney who fails to comply with the disinterested witness requirement may result in a lengthy and costly will contest. This is why you need to hire an experienced New York City probate attorney like Jeffrey Weinstein to expertly draft wills without subjecting you to potential litigation.

Moreover, oral or handwritten wills are usually not considered valid in New York courts unless they fall into very specific exceptions. Such wills are only valid if they were made by a member of the armed forces or by a mariner at sea. In such cases, the will is valid until one year after the veteran’s cessation of service, or for three years after the mariner created the will.

There are many resources available on the internet or books at the store you can buy to make yourself a will. And while some of these resources are good, they can never take the place of an experienced New York City probate attorney. Those forms and books can only tell you what to do but they cannot do it for you. In New York—as opposed to so many other states which those resources are more than adequate for—there are so many requirements that you cannot possibly check for yourself; for instance, the disinterested witness rule.

Furthermore, this is your Last Will and Testament. This is your legacy—that your family and friends will have to work with after your passing. This is a big deal and you should do it right. This is why it is essential that you retain a New York City trusts attorney such as Jeffrey Weinstein, Esq. He has been compassionately assisting families with their estate planning needs for over 20 years and continues to demonstrate the dedication and skill required to best handle your case. Please call to make an appointment for a FREE case evaluation at 646-495-9614 or visit our website for more information at

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