DIY New York State Probate Requirements

By Salvatore Jackson
Making your own will is more difficult in New York than in other states.
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The laws of New York strictly regulate the transfer of a person's real and personal property after death. For a person (called a testator) seeking to create his own will without the assistance of an attorney, making a holographic (self-written) or nuncupative (oral) to probate is the easiest way to comply with New York's probate statute. However, New York strictly regulates the validity of a holographic or nuncupative will, requiring a DIY testator to comply with the formal requirements of the probate statute.

Holographic and Nuncupative Wills

A holographic will is a handwritten will (not typed) completely in the handwriting of the testator, whereas a nuncupative will is an unwritten will whose provisions are transmitted orally. In many states, a holographic will is the means by which a DIY testator creates her will, while a nuncupative will covers bequests made from the deathbed. However, New York probate law strictly limits holographic and nuncupative wills to members of the armed forces engaged in military service during a war and mariners at sea, and invalidates their holographic and nuncupative wills after their return.

Admitting a Holographic or Nuncupative Will to Probate

While the grounds for a valid holographic or nuncupative will in New York are limited, New York law relaxes the requirements for admitting a holographic or nuncupative will to probate. To admit a nuncupative will to probate in New York, two witnesses must testify (typically by affidavit) to the oral provisions of the will. Admitting a holographic will requires the testimony of two witnesses (by affidavit) that the holographic will is in the handwriting of the testator.

Drafting a Formal Will

Under New York law, a formal will must be signed at the end of the will by the testator in the presence of at least two witnesses. If the testator is unable to sign (because of a physical deficiency), he may direct another person to sign the testator's name, and the person signing at the direction of the testator must include his name, address and signature. The two witnesses must be disinterested witnesses (not receive any bequest under the will) and must also sign the will and include their names and addresses, all in the presence of the testator.

Admitting a Formal Will to Probate

When the testator dies, the will (and affidavits) must be submitted to the local branch of the New York Surrogate's Court. Witnesses to the signing of the will must fill out affidavits setting forth that they witnesses the signing of the will, and that the testator was of sound mind, understood the possessions of his estate and was aware of the "natural objects of his bounty" (that the testator knew the identities of close family members). As long as no person contests the will, it is admitted to probate.

About the Author

Salvatore Jackson began writing professionally in 2010. He has experience with international travel, computers, sports and law. Jackson is a licensed attorney with experience in legal research. He received his Juris Doctor from Tulane University in 2010.