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EPIC FAIL: New York Wills Edition

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{Read in 5 Minutes}  As a Trusts and Estates attorney, I routinely prepare Wills for my clients. However, one need not necessarily hire an attorney to draft a Will (although it might be a very good idea to do so). When proceeding without an attorney, try to remember that there are certain formalities for properly executing a Will in the state of New York. If the person attempting to create a Will does not follow these formalities, it is overwhelmingly likely that the Surrogate’s Court will decline to probate those documents after the person’s death. 

What are some of the ways that people try to create Wills … and fail? Here are three of the most common examples:

1. Video Wills

Recording a video about your wishes is a very personal way to address your surviving family and friends and to provide instructions, kind words, or maybe even put your foot in your mouth. However, keep in mind that a “video Will” may fall short on several of the formal requirements to have a Will executed in New York State:

•There is no signature on it.

•The witnesses are unable to provide an original inked signature.

Custody of the original Will also becomes an issue when you’re talking about a video recording. 

There is simply no substitute in New York presently for the paper Will. If there is an overriding temptation to leave some sort of personal video with parting messages, a person can do that, in addition to signing a Will and Testament. However, if they are disinheriting somebody, you may just be giving that person fodder to contest the Will.

2. Text and Email Wills 

Again, there are certain formalities to writing a Will in New York State. Signature of the person making the Will and of the witness continues to be problematic issues. And I doubt that starting a group text, chat, or e-mail chain would meet the statutory requirement that a witness observe the person signing a Will.

While some other jurisdictions may allow these sorts of informal arrangements, New York State presently does not. So, this means that even if you send a very detailed email with instructions, or if you send several text messages, this is not going to be sufficient to substitute as a Will.

If you’re willing to put that much time into it, draw up a paper Will and execute it with the statutory formalities.

3. Wills Signed Without Witnesses

A person may put a lot of time into drafting their estate plan and writing a long document that they title as a Will and do all of the normal things that a Will does, such as giving away tangible personal property, naming Guardians for minors, dealing with real property owned by the Estate, and naming an Executor

They may even sign at the end and may go so far as to have their signature notarized. However, without witnesses, they are in trouble, and the Court is overwhelmingly likely to deny probate to those documents.

By the way, combining this with a video of the signing is not going to be any better. If I am someone who doesn’t have anyone to serve as witnesses and I take a video recording of myself signing this document so that there’s proof that I signed it, it’s still going to fall short. I have seen, over the course of my almost 20-year career, several people come in with videos of their loved ones signing documents, but they are never able to probate either the document or the video because the formal requirements have not been met.

A Will is a very personal document but a Will should be boring, meaning that it is not the time to reinvent the wheel. The most important thing about writing a Will is ensuring that you do so in a way that a Surrogate’s Court will admit it to probate after you are dead. Otherwise, if the Court declines to probate this attempt at a Will, you will die intestate and all of your assets will devolve to your next-of-kin.

Prudence is key.

For more information on this topic, please contact me.