A will is a written, signed legal document that directs who receives your probate property after death and names the executor who carries out those wishes. In New York, a valid will must satisfy EPTL 3-2.1: it must be in writing, signed at the end by you (the testator), and witnessed by two people who sign within 30 days of one another. A properly executed will is the document the Kings County Surrogate’s Court later admits to probate.
For a Brooklyn family whose largest asset is often a single appreciated home, a clear will determines whether a Park Slope townhouse passes smoothly to the next generation or becomes the subject of a contested probate.
What a will actually controls
Definition — Probate property: Assets titled in your name alone, with no joint owner and no beneficiary designation. These are what a will distributes.
A will governs your probate estate — your solely owned home, bank accounts without a payable-on-death tag, personal belongings, and a business interest held in your name. It names an executor, can create a testamentary trust for minor children, and can forgive debts or make specific bequests (the brownstone to one child, the brokerage account split among others).
NY execution requirements (EPTL 3-2.1)
For a will to be valid in New York, EPTL 3-2.1 requires:
- In writing — oral wishes generally do not count (narrow exceptions below).
- Signed at the end by the testator (or by another at your direction, in your presence).
- Publication — you declare to the witnesses that the document is your will.
- Two witnesses who sign within 30 days of each other, having seen you sign or heard you acknowledge your signature.
A witness should be disinterested. Under EPTL 3-3.2, if a beneficiary also serves as a necessary witness, that beneficiary’s gift may be void, though the will itself stays valid.
What a will does NOT control
A common Brooklyn mistake is assuming a will covers everything. It does not control:
- Jointly owned real property — a home owned with right of survivorship passes automatically to the co-owner.
- Beneficiary-designation assets — life insurance, IRAs, 401(k)s, and payable-on-death accounts pass to the named beneficiary, overriding your will.
- Assets held in a trust — property titled to a revocable or irrevocable trust passes under the trust terms, not the will.
If your IRA names an ex-spouse, your will cannot fix that. Coordinate beneficiary forms with your plan.
What happens if you die without a will in New York (EPTL 4-1.1)
Definition — Intestate: Dying without a valid will. New York’s intestacy statute, EPTL 4-1.1, then decides who inherits.
| Survived by | Who inherits (EPTL 4-1.1) |
|---|---|
| Spouse, no children | Entire estate to spouse |
| Spouse and children | First $50,000 plus half to spouse; remaining half to children |
| Children, no spouse | Everything to children, equally |
| Parents, no spouse or children | Everything to parents |
| Siblings only | Everything to siblings |
| No close relatives | To more distant kin; ultimately escheats to NY State |
Intestacy ignores your intentions — an unmarried partner, a stepchild, or a favorite charity receives nothing. In diverse Brooklyn, intestacy also fuels kinship proceedings when heirs are abroad or unknown.
Holographic and nuncupative wills (EPTL 3-2.2)
Definition — Holographic will: Handwritten and unwitnessed. Nuncupative will: Spoken.
New York recognizes these only in narrow circumstances under EPTL 3-2.2 — chiefly for active-duty armed forces members and mariners at sea — and they often expire after the qualifying condition ends. For nearly every Brooklyn resident, a properly witnessed EPTL 3-2.1 will is the only safe choice.
The self-proving affidavit
A self-proving affidavit is a sworn statement signed by you and your witnesses before a notary at the time of execution. It lets the will be admitted to probate without tracking down witnesses years later — a real time-saver in the high-volume Kings County Surrogate’s Court. Always have one prepared.
Updating or revoking a will (EPTL 3-4.1)
You can revoke a will under EPTL 3-4.1 by a later will, by a written revocation executed with will formalities, or by physically burning, tearing, or destroying it with intent to revoke. Minor changes can be made by a codicil — a supplement executed with the same EPTL 3-2.1 formalities. Review your will after a marriage, divorce, birth, death, or move; divorce automatically revokes provisions favoring a former spouse (EPTL 5-1.4).
How your Brooklyn will is later probated
When the time comes, your executor files the original will and a petition with the Kings County Surrogate’s Court to begin the probate process. A self-proving will moves faster. Distributees must be notified, and once the court issues letters testamentary, the executor can act. See executor duties for what comes next.
Frequently asked questions
Does a New York will need to be notarized? The will itself is not notarized, but the accompanying self-proving affidavit is. Two witnesses are the core EPTL 3-2.1 requirement; the notary makes the will self-proving.
Is a will from another state valid in New York? A will validly executed under another state’s law is generally honored in New York, but having it reviewed for EPTL compliance avoids surprises during Brooklyn probate.
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.
Do I still need a will if I have a trust? Yes — a “pour-over” will catches any asset you forgot to transfer into the trust. See trusts.
Plan your will the right way
A short consultation confirms your will meets EPTL 3-2.1 and coordinates with your beneficiary designations. Book 30 minutes with Russel Morgan.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.