How to Make a Will in New York — EPTL 3-2.1 Execution & Intestacy

A New York will is a written document, signed at the end by the testator in the presence of two witnesses who also sign within 30 days of one another, that directs how your probate assets pass at death. It is governed by EPTL 3-2.1. A will only controls assets that pass through your estate — not jointly owned property or accounts with named beneficiaries — and it takes effect only after a county Surrogate’s Court admits it to probate.

What does a will control in New York?

A will governs your probate estate: assets in your sole name with no beneficiary designation and no joint owner. It names an executor, can create testamentary trusts, names guardians for minor children, and directs distribution. It does not override the title-based and contract-based transfers described below.

Distributee — a person entitled to inherit under New York’s intestacy statute if there were no will. The term defines who must be notified in probate.

New York will execution requirements (EPTL 3-2.1)

For a will to be valid in New York, all of the following must be true:

1. It is in writing.
2. The testator signs at the end (anything after the signature can be disregarded).
3. The signing is done in the presence of, or acknowledged to, at least two attesting witnesses.
4. The witnesses sign within a 30-day window of each other and attest at the testator’s request.
5. The testator is at least 18 and of sound mind.

A missing signature, a witness who is also a beneficiary, or signing in the wrong place are the most common defects that invite a will contest.

What a will does NOT control

Asset type	How it actually passes
Joint bank account / property with right of survivorship	Automatically to the surviving owner
Life insurance, IRA, 401(k) with a named beneficiary	By beneficiary designation, outside the will
Assets titled in a living trust	By the trust’s terms — see trusts in New York
“In trust for” / payable-on-death accounts	To the named POD beneficiary

This is why a will alone rarely “covers everything.” Coordinating beneficiary designations with your will is a core part of planning.

Dying without a will: intestacy (EPTL 4-1.1)

If you die intestate (without a valid will), EPTL 4-1.1 dictates who inherits:

Survived by	Who inherits
Spouse, no children	Entire estate to spouse
Spouse and children	First $50,000 + half to spouse; remaining half to children
Children, no spouse	Entire estate to children, equally
Parents, no spouse or children	Entire estate to parents
Siblings only	Entire estate to siblings

Intestate — dying without a valid will, so state law (EPTL 4-1.1) decides who inherits rather than you.

Holographic and nuncupative wills (EPTL 3-2.2)

New York generally does not recognize handwritten (holographic) or oral (nuncupative) wills. The narrow exception under EPTL 3-2.2 covers members of the armed forces during armed conflict and mariners at sea, and even those expire after a set period following discharge or return.

The self-proving affidavit

A self-proving affidavit — a notarized statement signed by the witnesses at execution — lets the will be admitted to probate without tracking down the witnesses years later. It does not change the will’s validity; it speeds the process in Surrogate’s Court and is standard practice.

Updating or revoking a will

You can revoke a will under EPTL 3-4.1 by a later will, by a physical act (burning, tearing, canceling) done with intent to revoke, or by a writing executed with will formalities. A codicil amends without replacing — but in practice a clean re-execution is usually safer than stacking codicils.

Codicil — a formally executed amendment to an existing will, valid only if it meets the same EPTL 3-2.1 execution requirements.

How your will is later probated

When the time comes, your will is filed in the Surrogate’s Court of your county of domicile (SCPA 205) — for a Manhattan resident, the New York County Surrogate’s Court at 31 Chambers Street. Walk through the steps in the New York probate process guide and the New York estate guide.

FAQ

Does a New York will need to be notarized? The will itself doesn’t, but the attached self-proving affidavit does. Notarizing the affidavit is what speeds probate.

Can my spouse be a witness to my will? It’s risky. Under EPTL 3-3.2, a beneficiary-witness may forfeit their gift unless there are two other disinterested witnesses. Use independent witnesses.

Is a will made in another state valid in New York? Generally yes, if it was validly executed where signed (EPTL 3-5.1), but having it reviewed under New York law avoids surprises at probate.

Next step

To check that your will meets EPTL 3-2.1 and coordinates with your beneficiary designations, book a 30-minute consultation with Russel Morgan.