Requirements For Making A Will

Planning for any unexpected circumstances is key to protecting your loved ones as well as your assets. The start of a new year is the perfect time to look at your estate planning documents, making any additions or updates necessary. These documents help to ensure your family and friends are provided for in the event something happens to you, while sparing them the time and expense of going through probate proceedings. Making sure you have a valid will in effect is a good place to start.

Essentials For A Valid Will

You last will and testament conveys the property and assets you possess and who you want them to go to upon your death. While laws and legal guidelines pertaining to wills vary somewhat from state to state, there are requirements that all wills must adhere to in order to be valid, regardless of where you live. The American Bar Association outlines the following as essential:

• Age: You must be at least 18 years old to make a will.
• Testamentary Capacity: You must be of sound mind and in control of your mental faculties to create a will, otherwise it could be open to challenge in court.
• Free Will: The document must have been created of your own free will, as opposed to being something you were coerced or forced into making.
• Intent: Within the document itself, you must state your intent that this is your last will and testament, naming your assets and how you would like them to be distributed after your death.
• Witnesses: Your will must be signed by two witnesses, who are not beneficiaries of your estate.
• Formality: While oral and informal wills are permitted in some circumstances, your will should be formally written and drafted.

While there are plenty of ‘do it yourself’ websites and courses offering you guidance on preparing a will on your own, having an experienced attorney oversee this process can help to avoid simple yet costly mistakes that could create problems for your heirs when settling your estate.

What About Handwritten Wills?

Unlike some other states, Section 3-2.2 of the New York Code does allows nuncupative, or oral, wills and holographic wills, which are those written entirely be hand and unsigned by witness, under certain circumstances:

• When made by a member of the U.S. Armed forces while engaged in military conflict;
• When made by a person accompanying the Armed Forces while engaged, such as a photographer, aid workers, or journalist;
• When made by a mariner while out to sea.

A handwritten will made under other circumstances may be declared valid provided it contains the required witness signatures. At the same time, this, like any other variance from more formal procedures, can create problems, and may make your will more susceptible to being contested.

Reach Out to Us Today for Help

You have worked hard for the assets you have accumulated, and it is important to make sure they are protected. At Cavallo & Cavallo, our experienced New York estate planning attorneys are here to help protect your interests while guiding you through the documents you need to ensure your own and your loved one’s future security.

Resources:

americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_3.authcheckdam.pdf

public.leginfo.state.ny.us/lawssrch.cgi?NVLWO