Most people know they “should have a will.” Far fewer know what actually goes into making one that holds up — or what to do once it’s signed. This page is built as a working checklist for New Yorkers statewide, whether you live in Manhattan, on Long Island, in Westchester, the Hudson Valley, or anywhere Upstate. The goal is simple: move you from “I’ve been meaning to” to “it’s done and it’s valid.”
A will is the document that says who receives your property, who raises your minor children, and who administers your estate. But in New York a will is only one piece of a coordinated plan. Below you’ll find the concrete decisions to make, the signing rules that make a will legally enforceable under New York law, and the next steps most people overlook. When you’re ready to put it in motion, attorney Russel Morgan, Esq. and Morgan Legal Group can walk you through it — you can schedule a 30-minute consultation here.
Why a Will Alone Isn’t a Plan
A will controls how your assets are distributed after death and goes through probate. It does nothing while you’re alive and incapacitated, and it does nothing to reduce estate tax. A complete New York estate plan coordinates four documents together:
- A Will — directs distribution and names guardians and an executor.
- One or more Trusts — can avoid probate or address tax, asset protection, and Medicaid (see our trusts overview).
- A Durable Power of Attorney — lets someone manage your finances if you can’t (see power of attorney).
- A Health Care Proxy — lets someone make medical decisions for you (see health care proxy).
If you only sign a will, no one can pay your bills or make your medical decisions while you’re alive. That’s why we treat the will as the anchor of a broader plan. For the full picture, start with our estate planning overview.
The New York Will Checklist
Work through these phases in order. Each one is a decision you need to make before the document can be drafted properly.
Phase 1 — Decide the People
- [ ] Executor. Who administers your estate, gathers assets, pays debts, and distributes what’s left? Name a backup too.
- [ ] Guardian for minor children. If you have kids under 18, this is often the single most important reason to have a will. Name a primary and an alternate.
- [ ] Beneficiaries. Who receives what? Be specific. Vague language is the leading cause of family disputes.
- [ ] Witnesses you trust. You’ll need two (more on this below).
Phase 2 — Decide the Property
- [ ] Inventory your assets. Real estate, accounts, business interests, valuables, digital assets.
- [ ] Check what passes outside the will. Life insurance, retirement accounts, and “payable-on-death” accounts pass by beneficiary designation, not by your will. Coordinate them.
- [ ] Decide on specific gifts. Heirlooms, charitable bequests, or set dollar amounts.
- [ ] Decide the residuary. Whoever gets “everything else” — name them clearly.
Phase 3 — Execute It Correctly
New York is strict about how a will is signed. Under EPTL §3-2.1, a valid will requires:
| Requirement | What it means |
|---|---|
| Writing | The will must be in writing. |
| Signature at the END | The testator must sign at the end of the document. Anything after the signature can be disregarded. |
| Two attesting witnesses | At least two witnesses must sign, generally within 30 days of one another. |
| Publication | The testator must declare to the witnesses that the document is their will. |
| Testamentary capacity | The testator must be of sound mind and at least 18. |
These formalities exist for a reason: a will that isn’t signed correctly can be challenged or thrown out entirely, and the people you wanted to protect lose out. This is the step where do-it-yourself plans most often fail.
Phase 4 — Store and Update
- [ ] Store the original safely and tell your executor where it is. A copy is not the original — courts want the signed original.
- [ ] Review after life events: marriage, divorce, a new child, a move into or out of New York, a major change in assets.
- [ ] Re-sign, don’t just edit. Crossing things out can invalidate a will. Changes are made through a properly executed codicil or a new will.
What Happens Without a Will: Intestacy
If you die without a valid will, New York’s intestacy rules in EPTL Article 4 decide who inherits — not you. A common surprise: if you’re married with children, your spouse does not automatically inherit everything. Under intestacy the surviving spouse receives the first $50,000 plus half the remainder, and the children share the rest. Unmarried partners and stepchildren generally receive nothing. A will is how you override the default and make your own choices.
How Wills Fit With Trusts
A will sends your estate through probate — the court process that proves the will and authorizes the executor. A revocable living trust under EPTL Article 7 can avoid probate by holding assets that pass directly to beneficiaries, though it offers no estate-tax savings on its own. An irrevocable trust is the tool used for estate-tax reduction, asset protection, and Medicaid planning, which carries a 5-year look-back. A Supplemental Needs Trust under EPTL 7-1.12 can preserve a disabled beneficiary’s government benefits. Most plans pair a “pour-over” will with a trust so nothing falls through the cracks. See our trusts page for how to choose.
Don’t Forget the Documents That Work While You’re Alive
A will is silent until death. Pair it with:
- A durable Power of Attorney under GOL §5-1513 — durable by default and based on the 2021 New York statutory short form, it lets your agent handle finances if you’re incapacitated.
- A Health Care Proxy under New York Public Health Law Article 29-C — it appoints an agent for medical decisions and is entirely separate from the financial POA.
Skipping these is the most common gap we see. Without them, your family may need a court guardianship proceeding to do things your own documents could have authorized in minutes.
Wills and the 2026 New York Estate Tax
Your will controls distribution, but it doesn’t reduce tax — planning does. For 2026, New York’s estate-tax picture matters for larger estates:
| 2026 New York Estate Tax | Figure |
|---|---|
| Basic exclusion amount | $7,350,000 (deaths 1/1/2026–12/31/2026) |
| The “cliff” (105% of exclusion) | $7,717,500 |
| Effect of exceeding the cliff | The entire exemption is lost — the estate is taxed from the first dollar |
| Tax rates | Progressive, 3%–16% |
| New York gift tax | None — but gifts within 3 years of death are added back to the taxable estate |
The cliff is the trap. An estate just over $7,717,500 can owe tax on the whole amount, not just the excess. If your net worth is anywhere near these numbers, trust-based planning belongs in the conversation. Read more in our New York estate tax guide. For statewide context on how these rules apply across the state, see our New York statewide guide.
Your Next Three Steps
- List your people and property using Phases 1 and 2 above.
- Decide what should pass by will versus by trust or beneficiary designation.
- Have it drafted and executed correctly so it satisfies EPTL §3-2.1 the first time.
That last step is where an attorney earns their keep. A will that’s drafted clearly and signed properly is one your family can rely on — and one a court won’t second-guess.
Frequently Asked Questions
How many witnesses does a New York will need?
Two. Under EPTL §3-2.1, at least two attesting witnesses must sign, and the testator must declare to them that the document is their will (publication). The testator must sign at the end of the document.
Does my spouse automatically inherit everything if I die without a will?
No. Under New York’s intestacy statute, EPTL Article 4, a surviving spouse with children receives the first $50,000 plus half the remainder, and the children share the rest. A will lets you decide for yourself instead.
Will a will help me avoid probate?
No. A will is administered through probate. To avoid probate you generally use a revocable living trust under EPTL Article 7, which holds assets that pass outside the court process — though it provides no estate-tax savings on its own.
Can I just cross out and rewrite parts of my old will?
No. Handwritten changes can invalidate a will. Amendments must be made by a properly executed codicil or a new will that meets the EPTL §3-2.1 formalities.
My estate is around $7.7 million — do I need to worry about tax?
Possibly. For 2026 the New York exclusion is $7,350,000 and the cliff sits at $7,717,500. Exceeding the cliff means the entire exemption is lost and the estate is taxed from the first dollar, so planning is important at that level.
This page is general information about New York law, not legal advice. To create a plan for your situation, schedule a consultation with Russel Morgan, Esq. of Morgan Legal Group, serving clients across New York State.
Further reading from Morgan Legal Group: the New York estate planning guide.