How to Make a Will in New York — EPTL 3-2.1 Execution & Intestacy

A New York will is a written, witnessed document that directs how your probate assets pass at death and names the executor who carries out those wishes. To be valid, EPTL 3-2.1 requires that you sign it at the end in the presence of two witnesses, who sign within 30 days of one another. A will controls only assets in your sole name — not co-op shares held in a trust, jointly owned property, or accounts with named beneficiaries. After death, the will is proved in the Surrogate’s Court of your county of domicile.

What a New York will actually controls

Your will governs your probate estate — assets titled in your name alone with no other transfer mechanism. For a typical New York County resident, that often includes a brokerage account, a condo deed held individually, personal property, and a sole-name bank account. The will names an executor (the fiduciary who administers the estate) and your beneficiaries.

Definition — Executor: the person named in a will and appointed by the Surrogate’s Court to collect assets, pay debts and taxes, and distribute what remains.

How a will is executed in New York (EPTL 3-2.1)

New York’s execution formalities are strict, and failing them is a common ground for a will contest. Under EPTL 3-2.1, a valid will requires:

1. A writing signed by the testator (the person making the will).
2. Signature at the end of the document.
3. Two attesting witnesses, each of whom signs within 30 days of the other.
4. Publication — the testator declares to the witnesses that the document is their will.
5. The testator must sign, or acknowledge a prior signature, in the presence of each witness.

New York does not require notarization for validity, but a self-proving affidavit (below) is signed before a notary and makes probate far smoother.

What a will does NOT control

A will is silent over assets that pass by their own rules:

• Jointly owned property with right of survivorship passes automatically to the survivor.
• Beneficiary-designation assets — life insurance, IRAs, 401(k)s, and payable-on-death accounts — go to the named beneficiary regardless of your will.
• Trust assets — anything titled in a revocable or irrevocable trust passes under the trust, not the will.

This is why a will alone rarely keeps a Manhattan co-op out of probate; only retitling into a trust does that.

If you die without a will in New York (EPTL 4-1.1)

Dying without a will is called intestacy, and EPTL 4-1.1 dictates exactly who inherits. The court appoints an administrator instead of an executor, and your wishes play no role.

Survived by	Who inherits (EPTL 4-1.1)
Spouse, no children	Spouse takes 100%
Spouse and children	Spouse takes $50,000 + half the balance; children split the rest
Children, no spouse	Children take everything, in equal shares
Parents, no spouse or children	Parents take everything
Siblings only	Siblings share equally
No close relatives	Estate may escheat to New York State

For a Manhattan resident with appreciated property, intestacy can split a co-op or condo among heirs who never intended to co-own it — a frequent source of conflict in the New York County Surrogate’s Court.

Holographic and nuncupative wills (EPTL 3-2.2)

New York rarely honors informal wills. Under EPTL 3-2.2, a holographic (handwritten, unwitnessed) will or a nuncupative (oral) will is valid only for narrow categories — chiefly members of the armed forces during conflict and mariners at sea — and lapses after the qualifying condition ends. For everyone else, the EPTL 3-2.1 formalities are mandatory.

The self-proving affidavit

A self-proving affidavit is a sworn statement by your witnesses, signed before a notary at execution, confirming the formalities were met. It lets the Surrogate’s Court admit the will without locating and re-examining the witnesses years later — a meaningful time-saver in a busy court like New York County’s.

Updating or revoking a will (EPTL 3-4.1)

You can change a will with a codicil (a separately executed amendment) or by signing a new will. Under EPTL 3-4.1, you revoke a will by a later will, by a writing of revocation executed with will formalities, or by a physical act such as burning or tearing it with intent to revoke. Marriage, divorce, and new children can also alter how a will operates — review yours after any major life change.

How a New York will is later probated in Manhattan

When you die domiciled in New York County, your executor files the original will and a probate petition with the New York County Surrogate’s Court at 31 Chambers Street under SCPA 1402. The court issues letters testamentary authorizing the executor to act. See the full walk-through in the New York probate process guide and court specifics in the New York County Surrogate’s Court page.

Frequently asked questions

Does a New York will need to be notarized? No. EPTL 3-2.1 requires two witnesses, not a notary. Notarization is used only for the optional self-proving affidavit, which speeds probate.

Can I write my own will by hand in New York? Generally no. Handwritten, unwitnessed (holographic) wills are valid only for service members and mariners under EPTL 3-2.2. Everyone else must meet the EPTL 3-2.1 formalities.

What happens to my Manhattan co-op if I die without a will? It passes under EPTL 4-1.1 intestacy rules — often split among your spouse and children — and the executor or administrator must still work with the co-op board on the transfer.

Does my will override my IRA beneficiary? No. Beneficiary-designation assets pass to the named beneficiary regardless of your will. Keep designations current.

Have a will to draft or update? Book a 30-minute consult with Russel Morgan or visit the contact page.