Self-Proving Will Statutes in New York

Lawyer in a library
••• Jupiterimages/Comstock/Getty Images

A valid last will and testament ensures that, when someone dies, the property in a deceased person's estate will go to the people they choose, known as beneficiaries. A self-proving will certifies that the will's execution is valid and allows the process of probate to be more streamlined. When estate planning, a person making a self-proving will can attach a self-proving affidavit to attest to its validity.

Defining a Self-proving Will

A self-proving will fulfills specific requirements that confirm its validation without the need for probate court approval. The person creating it attaches a self-proving affidavit to the will, signed by the will maker and two witnesses, to attest to its validity. This is not necessary for a will to be legal, but doing this makes the process of probate shorter.

All states allow the use of self-proving wills, with the exception of Maryland, Ohio, Vermont and the District of Columbia. To create a valid will in every state, a person needs to meet certain requirements:

  • They must be at least 18 years of age and of sound mind.
  • They must create and sign the document.
  • They must have two witnesses present when signing the will who will not receive any inheritance from the estate.

Creating a Will Under New York State Law

According to New York Senate Section 3-1.1, when making a will in New York, creators must execute and attest wills by taking these steps:

  • The will must be in writing.
  • The testator (the person writing the will) must sign the will at the end.
  • The testator should affix their signature to the will in front of two attesting witnesses or state that someone else has signed under their direction. The testator can sign in the presence of both witnesses or affix his signature to each separately.
  • At some time during the ceremony of executing and attesting the will, the testator must declare to each witness that they have affixed their signature to their own will.
  • The two witnesses will attest the testator's signature, sign their names to it and attach their addresses at the end of the will within 30 days.

The court will assume that the witnesses have met the 30-day requirement. If a witness fails to affix their address to the will, it will not affect the will's validity.

Notarizing a Will in New York

Wills do not need to be notarized to be valid, but an individual creating a self-proving will should have it notarized, according to NY SCPA Section 1406. They can admit a self-proving will to probate court without the need for the testimony of the will's witnesses. If the will isn't self-proving, the probate court will require testimony from those witnesses and possible additional proof to establish the will's validity.

Should the testator chooses to use a self-proving affidavit, New York state requires their witnesses to sign it before a notary public, who serves as an officer of the court. Therefore, the notary's presence is as good as in-court testimony from actual witnesses. Signing a self-proving affidavit may be preferable, as by the time an individual submits a will to the court, the witnesses may be difficult to track down.

Filing a Will in New York State

After the testator's death, the filing of the will occurs in probate court by a personal representative of the deceased known as the executor or administrator. When filing, they must submit the will, a certified death certificate, a probate petition and other supporting documents. Thus begins the legal process of probate, which carries out the deceased's wishes under court supervision.

In some instances, the executor may file these documents online using the New York State Courts Electronic Filing system (NYSCEF), but this will depend on the county they file in. The state bases the will's filing fee on the estate's value.

"Distributees" are heirs entitled to the decedent's property according to the will; the probate petition must list them. The Surrogate's Court will serve them with a notice, or citation, giving the court jurisdiction over them, so it can make decisions regarding the rights of the people involved. The citation also informs distributees that the executor filed to manage the decedent's estate. Once they receive the citation, distributees can relinquish their rights to the decedent's property and either consent or disagree to the executor's appointment.

Revoking or Changing a Will

New York State allows an individual who creates a will to change or revoke it at any time. They can do this by:

  • Burning, canceling, cutting, tearing, mutilating, obliterating or otherwise destroying the will.
  • Ordering someone else to burn, cancel, cut, tear, mutilate, obliterate or otherwise destroy the will in front of the testator and two witnesses.
  • Creating a new will.

The testator can also announce in writing that they are revoking the old will and follow the formalities they used to make a new one.

When making significant changes to a will, it's probably best for the testator to revoke it and start from scratch. But if the changes are minor, they can add an amendment to the existing document, known as a codicil. In either case, the testator will need to finalize their changes using the same formalities they used for the original will. An attorney is not required to create a valid will in New York, but a person creating a will should seek advice from one if they need help navigating the process.

Related Articles