Después de firmar su testamento de Nueva York

What signing did

New York's formalities are specific. A will is signed at the end by the testator, or in the testator's name by another person at the testator's direction and in the testator's presence; the signature is made, or acknowledged, in the presence of each attesting witness; the testator declares to each witness that the instrument is the testator's will; and at least two witnesses attest it, signing and adding their residence addresses, within one thirty-day period (EPTL 3-2.1). A will signed that way is a valid will; New York does not require it to be notarized.

Many New York wills also carry an affidavit of the attesting witnesses, made at the testator's request at the signing or later, stating the facts that establish the will's genuineness, its valid execution and the testator's competence; the court accepts it as though the witnesses had testified in court unless a party objects or the court requires a witness to be produced (SCPA 1406). It does not make the will valid — the signing did that — but it can spare the executor a search for witnesses years later. A handwritten or oral will is valid in New York only for members of the armed forces in actual service during a war or armed conflict, those accompanying them, and mariners at sea, and only for a limited time (EPTL 3-2.2).

The original, and where it lives

Probate starts from the original, signed will, so where it lives matters more than any copy. A safe place at home, the office of the attorney who supervised the signing, or the Surrogate's Court itself are the usual choices. The court of any county will receive the will of a domiciliary of that county for safekeeping on payment of the fee, give a written receipt, keep it sealed, and deliver it only to the testator, on the testator's acknowledged written order, or after the death to the persons named on the wrapper or the court (SCPA 2507).

New York sets no deadline by which a person holding a will must deliver it after a death. Any person may deliver a decedent's will to the Surrogate's Court of the county of domicile for filing, without a fee (SCPA 2508), and the court may order a person believed to know where a will is, or whether it was destroyed, to be examined and to produce it (SCPA 1401). Writing the original's location on every copy you hand out costs nothing and closes that gap.

Tell the executor what to expect

The executor named in the will has no power until the Surrogate's Court issues letters testamentary, and cannot begin until someone finds the original. Telling the executor three things now — that they are named, where the original is, and where the list of assets and advisers is kept — is the most useful step after signing.

It also helps to tell them what the job pays and asks. An executor's statutory commissions are 5% of the first $100,000 received and paid out, 4% of the next $200,000, 3% of the next $700,000, 2.5% of the next $4,000,000 and 2% above $5,000,000 (SCPA 2307). Creditors present claims to the executor in writing; a claim not presented within seven months from the date letters first issue leaves the executor not chargeable for assets paid in good faith before it was presented (SCPA 1802, 1803). An executor's request for the decedent's digital accounts is answered under New York's digital-assets law: a custodian complies within 60 days after receiving the information the law requires (EPTL 13-A-4.2).

Keep it current, and know what changes it for you

A will is changed or revoked only the ways the statute allows: by a later will, or by a writing that clearly shows the intention, executed with the same formalities as a will; or by burning, tearing, cutting, cancelling, obliterating or otherwise destroying it — by the testator, or by someone else in the testator's presence and at the testator's direction, which two witnesses other than that person must then prove (EPTL 3-4.1). Revoking a will revokes its codicils. Writing in the margins of a signed will does neither reliably.

Some events change a will without any act. A divorce or annulment revokes the dispositions and appointments to the former spouse and the former spouse's nomination as executor or trustee, unless the will expressly provides otherwise; the will is read as if the former spouse had died first, and remarriage to the same person revives it (EPTL 5-1.4). A child born after the will was signed, and neither provided for nor mentioned in it, may take a share the statute sets, depending on what the will gives the testator's other children (EPTL 5-3.2). Marriage, a birth, a move or a large change in the estate is a reason to read the will again.

What a will does not do

A will governs only property that is in the decedent's own name at death. It does not control property already in a lifetime trust (which passes under the trust), an account or policy with a beneficiary designation, jointly owned property that passes to the survivor, or real property under a recorded transfer on death deed (Real Prop. Law §424). Nor does it reach a home deeded to spouses: a deed to spouses creates a tenancy by the entirety unless it says otherwise, and the survivor takes the whole (EPTL 6-2.2). It does not avoid the Surrogate's Court: a will is proved there, and the executor acts under the letters the court issues.

A will also cannot defeat a surviving spouse's right of election — the greater of $50,000 or one-third of the net estate, counting testamentary substitutes such as revocable trusts and jointly owned property (EPTL 5-1.1-A) — and it does not reduce New York's estate tax, which counts the whole estate where the federal gross estate plus includible gifts exceeds the basic exclusion amount (Tax Law §§952, 971).

What happens at your death

The person holding the original delivers it to the Surrogate's Court, and the executor petitions to prove it. The court admits the will on proof of its execution — the attesting witnesses' affidavit under SCPA 1406, where there is one, usually serves — and issues letters testamentary. Where the estate is small — personal property with a gross value of $50,000 or less, not counting the property set off for the family — the court's voluntary administration procedure may serve instead of full administration (SCPA 1301).

The executor then gathers the property, receives and pays the claims presented within the statute's periods (SCPA 1802, 1806), files the New York estate tax return within nine months where one is due (Tax Law §972), and distributes under the will. Where the will leaves the remaining property to the trustee of an existing trust, the trustee receives it and administers it under the trust's terms, including its amendments (EPTL 3-3.7).

The will and the trust, together

Many New York plans pair a revocable trust with a short will that leaves anything still outside the trust to the trustee. The pairing works only if the trust instrument was executed before or together with the will, by its creator and — unless the creator is sole trustee — a trustee, with acknowledgment or two witnesses (EPTL 3-3.7). The will is the backstop; the trust does its work only for property actually transferred to it (EPTL 7-1.18), so funding the trust is what keeps the backstop small.

If the will creates a trust

A will can create a trust — for children, for a spouse, or in stages. That trustee qualifies in the Surrogate's Court (SCPA 708) and receives letters of trusteeship, and the trust is administered under the will's terms with the same duties as any New York trustee: the Prudent Investor Act (EPTL 11-2.3), separate property (EPTL 11-1.6) and the statutory commissions (SCPA 2309). A trust created by a will is funded only through probate, after the executor's administration — one reason many plans use a lifetime trust instead.

If you have not signed yet, or need a change

TrusteeClear does not draft or change wills, codicils or trusts, and does not review a will to say what it lacks. In New York, preparing wills and other instruments that affect the disposition of property after death is reserved to licensed attorneys (Judiciary Law §§484, 495). A licensed New York attorney of your choosing can prepare a codicil or a new will and supervise its execution under EPTL 3-2.1; what TrusteeClear organizes is the record your executor and trustee will need.