How to Make a Will in New York: EPTL 3-2.1 Requirements & Intestacy

A will is a legal document that directs how your probate assets pass at death and names an executor to carry out your wishes. In New York, a valid will must satisfy EPTL 3-2.1: it must be in writing, signed at the end by the testator, and witnessed by at least two people who sign within 30 days of one another after the testator declares the document to be their will. A will only controls assets that pass through probate — not jointly held or beneficiary-designated property.

What a New York will does and does not control

A will speaks only to your probate estate: assets titled in your sole name with no surviving co-owner or named beneficiary. When you die, the executor named in your will petitions the Surrogate’s Court of your county of domicile to admit the will to probate and issue letters testamentary.

A will does not control:

• Jointly owned property with right of survivorship — it passes automatically to the surviving owner.
• Beneficiary-designation assets — life insurance, IRAs, 401(k)s, and payable-on-death accounts pass by contract to the named beneficiary.
• Assets held in a trust — those pass under the trust’s terms and avoid probate entirely.

Testator: the person who makes the will. Executor: the person named in the will to administer the estate, who serves only after the Surrogate’s Court issues letters testamentary.

What are the requirements for a valid will in New York?

Under EPTL 3-2.1, a New York will is valid when:

1. It is in writing and signed at the end by the testator (or by another at the testator’s direction and in their presence).
2. The signature is made or acknowledged in the presence of at least two attesting witnesses.
3. The testator declares to the witnesses that the document is their will.
4. The witnesses sign within a 30-day window and, at the testator’s request, write their addresses.

There is no general notarization requirement for the will itself in New York, but a self-proving affidavit (see below) is sworn before a notary and dramatically simplifies later probate.

What happens if you die without a will in New York?

If you die intestate (without a valid will), EPTL 4-1.1 dictates who inherits. The state — not you — chooses your heirs.

Survived by	Who inherits under EPTL 4-1.1
Spouse, no children	Entire estate to spouse
Spouse and children	First $50,000 + half the balance to spouse; remaining half to children
Children, no spouse	Entire estate to children, equally
Parents, no spouse/children	Entire estate to parents
Siblings only	Entire estate to siblings
No close relatives	Distributed to more distant kin; if none, escheats to New York State

Distributee: a person entitled to inherit under intestacy. Intestate: dying without a valid will, so EPTL 4-1.1 governs distribution.

Intestacy also means the court appoints an administrator rather than honoring your choice of executor — and the appointment follows the SCPA 1001 priority order. See executor and administrator duties.

Are handwritten or oral wills valid in New York?

Rarely. EPTL 3-2.2 permits holographic wills (entirely handwritten, unwitnessed) and nuncupative wills (oral) only for members of the armed forces during armed conflict and mariners at sea — and even then they expire after a set period once the qualifying condition ends. For virtually every ordinary New Yorker, a handwritten or spoken will is not valid. Use a properly witnessed EPTL 3-2.1 will.

The self-proving affidavit: why it speeds probate

A self-proving affidavit is a sworn statement by the witnesses, made before a notary, confirming that the will was executed with the EPTL 3-2.1 formalities. Without it, your executor may have to track down witnesses years later to testify. With it, the Surrogate’s Court can usually admit the will without locating the witnesses — saving weeks and legal expense.

Updating or revoking your New York will

You can revoke a will under EPTL 3-4.1 by:

• Executing a new will that revokes the prior one, or
• A physical act — burning, tearing, or destroying the will with intent to revoke.

Minor changes can be made by a codicil, a supplemental document executed with the same EPTL 3-2.1 formalities. Caution: marriage, divorce, or the birth of a child can change how a will operates, so review it after major life events.

How your New York will is later probated by county

When you die, your will is filed in the Surrogate’s Court of your county of domicile (SCPA 205) — Kings County for a Brooklyn resident, Nassau County for a Mineola resident, and so on. Because New York has 62 separate Surrogate’s Courts, the timeline and procedure depend on where you lived. Our New York probate process guide walks through each step.

Frequently asked questions about New York wills

Does my New York will need to be notarized? The will itself does not, but you should attach a notarized self-proving affidavit so witnesses don’t have to testify later.

Can I disinherit my spouse in New York? Not entirely. A surviving spouse has a right of election under EPTL 5-1.1-A to claim roughly one-third of the estate regardless of the will.

Where do I file my will after death? Nowhere during life — you keep the original safe. After death, your executor files it in the Surrogate’s Court of your county of domicile.

To have a will drafted to New York standards, book a 30-minute consultation with attorney Russel Morgan.