General Requirements of a Will

Wills are often used as the primary method to transfer assets on a person’s death.

The Will should be an accurate expression of your intent. Ensuring an accurate expression of your intent helps to ensure that beneficiaries receive what you intended, and also helps to avoid a successful Will contest after your death.

• Testamentary Capacity

A person who creates a Will is called a ‘testator.’ To make a valid Will, an individual must have testamentary capacity at the time they execute it. To have the requisite capacity, the testator must be:

• At least 18 years of age.
• Of sound mind and memory.

If the testator understands what they own, who their loved ones are, and how they will disposes of their property, the testator is deemed to have testamentary capacity. This is true even if the testator may be:

• Old, weak, or senile.
• Strange or eccentric.
• Diagnosed with Alzheimer’s disease or dementia.

The capacity requirement applies only at the time the Will is made; not before or after its signing.

• Procedures for Executing a Valid Will

To be valid under New York law:

• A will must be in writing.
• A will must be signed at the end by the testator or by another person at the testator’s direction and in the testator’s presence, subject to certain conditions.
• A will must be signed by at least two attesting witnesses, within 30 days:
• in the presence of the testator; or
• after the testator acknowledges to each that they have affixed their signature or directed that it be signed on their behalf.
• The testator must declare to the witnesses, at some point during the execution, that the document is their will.

If the testator directs another to sign the will for them, that person must also sign their own name and provide their own address on the will, and they cannot serve as an attesting witness.

In cases where a will is challenged, the executor, or other proponent of the will, bears the burden of proving that the will is valid by a preponderance of the evidence.

New York courts generally recognize out-of-state wills if they meet the requirements for validity in the state of execution, even if the out-of-state will does not comply with New York’s requirements.

• Testator’s Signature

If the testator is physically capable of signing the will with the testator’s usual signature, the testator should sign the will. If the testator’s signature is shaky or the testator is incapable of signing with the testator’s usual signature, it is good practice to retain an attorney so they may consider whether it is better for the testator to:

• Sign on the testator’s own behalf with a signature that is different from the testator’s usual signature or mark.
• Have another person sign on the testator’s behalf.

If the testator’s signature looks different from prior signatures, or if the testator only can sign with initials or a mark, the attorney should document this in their file, which may help if the signature is later challenged. It is good practice to leave the mark or “X” untouched on the signature line, and state in the attestation clause that the testator signed the will by placing their mark or “X” on it.

• Witnesses

At least two witnesses must sign the will and write their residence address beside their signatures. None of the attesting witnesses should be a beneficiary under the will. If a witness is also a beneficiary, the disposition to that beneficiary is void unless either:

• There are at least two other attesting witnesses to the will who are not beneficiaries.
• The will can be proven without the testimony of the beneficiary witness.

If the disposition to the beneficiary witness under the will is void, the beneficiary witness will receive what they would get under the laws of intestacy, if anything, up to the amount of the disposition made in the will.

• Self-Proving Affidavit

A self-proving affidavit is usually made a part of a will, as an attachment at the end, and signed as part of the will execution, but it can be signed after the will’s execution. The self-proving affidavit creates a rebuttable presumption that the signature and witness requirements were met at the time of execution without the need for live testimony or affidavits from the witnesses after the testator’s death.

In the self-proving affidavit, the testator and witnesses swear that:

• The testator declared the document to be their will.
• The testator was competent to make a will and was not under any restraint.
• The will was signed by the testator in front of the witnesses.
• The witnesses signed in the presence of the testator and each other.

The notary then acknowledges the testator’s and witnesses’ statements and identities.

A self-proving affidavit is not required to make a valid will, but a self-proving affidavit is almost always a part of the will signing.

Executors

• Nominating an Executor

The executor of an estate is the person, often named in the will, who is responsible for:

• Collecting assets.
• Paying creditors.
• Selling property if necessary.
• Making distributions to the beneficiaries under the will.

The executor must be appointed by the surrogate’s court.

• Eligibility to Serve as an Executor

Any natural person may serve as executor unless they are:

• Under the age of 18 years.
• Not a US resident (unless they will serve together with a New York resident co-fiduciary).
• Incompetent.
• A convicted felon.
• Unfit to be an executor for any reason, including due to dishonesty, substance abuse, carelessness, or lack of sufficient understanding.

Ineligible, in the court’s discretion, including anyone unable to converse in the English language, if the court so decides.

• Selecting an Executor

When selecting an individual executor, the testator should nominate someone who is:

• Honest.
• Trustworthy.
• Conscientious.
• Capable of remaining impartial.
• Available and willing to serve.

Professional fiduciaries may be a better option than family members or friends in some circumstances, but corporate fiduciaries are often reluctant to serve as executor unless the estate is large.

• Executor Compensation

Individual executors are generally entitled to compensation determined by a statutory fee schedule. A testator can, however, agree to commissions with the executor before the executor agrees to serve or give an executor a fixed sum in lieu of commissions. If the testator gives the executor a sum in lieu of commissions, the executor generally has the option to renounce that sum and take the statutory commission instead.

The will may also provide that some or all of the named executors are not entitled to commissions, which is common where the will names family members as executor.

Guardians / Custodians

• Nominating Guardians

For a parent with minor children, the most important issue in the estate plan is often naming the person who will act as guardian of those children. Guardianship provisions are not likely to be needed unless both parents of a minor child die while the child is still a minor. However, they should be included any time a person has a minor child, in the unlikely event that both parents die simultaneously or too close in time for the surviving parent to update their will.

In New York, a minor is either:

• Any person under 18.
• A person who is under 21 who consents to the appointment of a guardian after age 18.

Guardianship gives legal custody of the minor child, the minor’s estate (that is, the minor’s assets), or both, to the appointed guardian. A guardian may not act until letters of guardianship have been issued.

• Eligibility to Serve as a Guardian

At the time a named guardian petitions the court for guardianship, the guardian must:

• Be 18 years of age.
• Be a resident of the US.
• Be of sound mind.
• Not be disqualified due to substance abuse, dishonesty, imprudence, or lack of understanding.
• Be able to read and write in the English language (subject to the court’s discretion).
• Have no felony conviction.
• Not be otherwise unfit.
• Selecting a Guardian

The testator should identify individuals in a position to take custody of minor children and care for them in a way the testator finds acceptable, should it be necessary. Predicting all the needs of the children if both parents die, and the ability of the named guardians to meet all of those needs, is nearly impossible. The key considerations are finding people the testator is close to and trusts to make good decisions, and with whom the minor children will be most comfortable.

Testators should understand that naming a guardian in a will does not guarantee that the named guardian will be appointed. In making its ultimate decision, if the named guardian meets the qualifications for acting, the court is likely to give preference to the guardian named in the will in the absence of evidence that another individual would be better for the child.

Although a divorced or single parent may want to nominate someone other than a child’s other parent as guardian in their will, that nomination is not effective while the other parent is living absent a termination of parental rights. A minor’s parents are their natural guardians and the surviving parent is generally the natural guardian if one parent dies.

• Guardian of Person or Property

If the testator dies with minor children and the child’s other parent has predeceased or is unable to care for the child, a guardian of the person of a minor child is always necessary. A guardian of the estate, or property, of a minor child is not always necessary.

A testator can select different guardians for a minor’s person and property. This is sometimes done if the testator wants a certain individual to have custody of a minor child but does not believe that individual is capable of handling the minor’s finances. When possible, it is best to select a single individual to act as guardian of a minor’s person and property.

Beneficiaries / Bequests

• Importance of Titling and Designation Beneficiary Designations

Whether the will is the primary estate planning vehicle or a back-up to a revocable trust, it is important to consider the role of non-probate assets in an estate plan. Proper titling of assets and contractual benefits, such as bank accounts, brokerage accounts, certificates of deposit, life insurance policies, retirement accounts, and real estate, is imperative for an effective estate plan. Failure to consider and verify ownership and beneficiary designations may undermine the estate plan, which could lead to:

• Additional taxes.
• Family conflicts.
• Litigation.
• Bequests

One of the primary functions of a will is for the testator to name the beneficiaries to receive the testator’s assets when the testator dies. The testator may do this by making various types of bequests in the will. The will provisions only control the testator’s probate assets.

The testator typically makes gifts in the will that are either:

• Specific or general gifts of items, such as real property, tangible personal property, and cash.
• Residuary gifts.

Not all gifts that the testator makes by will are guaranteed to succeed. A gift may fail because the item gifted no longer exists, the beneficiary predeceases, or there are insufficient assets in the estate to make all gifts and to pay the estate’s debts and expenses.

• Specific and General Bequests

Specific gifts, commonly referred to as specific bequests, are gifts of specific items of property, such as “my diamond necklace.” Specific gifts include:

• Gifts of specific real and personal property.
• Gifts of cash in specified accounts.

General gifts:

• Do not direct delivery of any particular property.
• Can be of a certain dollar amount or value.
• May be satisfied out of the general assets of the testator’s estate.

Both specific gifts and general gifts have potential downsides. Specific gifts are limited to the item described in the will. If the testator no longer owns that item at death, the gift generally adeems, or fails, and the beneficiary does not receive the specific item or anything in its place. Some general gifts, including gifts of specific sums of money, reduce in value as years pass due to inflation.

If the testator wants gift of a specific dollar amount to keep up with inflation, they can include inflation-indexing language in the will.

• Disinheritance

If a person is not specifically provided for in a will, that person generally does not take under the will. However, notable exceptions may apply in the case of:

• Spouses
• Children under age 21.
• Disinheriting a Spouse

In New York, spouses cannot disinherit each other. When a decedent dies with a will, if the decedent’s surviving spouse receives less than a statutory elective share amount under the will, the surviving spouse can opt to receive an elective share of the net estate instead of adhering to the will’s terms. This right can be waived in a signed writing or in a prenuptial or postnuptial agreement.

• Disinheriting a Child

A child generally has no right under New York law to inherit from a parent, subject to a few exceptions. An individual can disinherit their children, but the New York legislature has enacted laws to protect children from unintentional omission in a will in certain circumstances when a child is born after the signing of the will. To avoid unintentional application of these laws, it is important that a testator make clear their intention to omit a child or children.

• No Contest Clauses

A no contest clause, sometimes called an in terrorem, penalty, or forfeiture clause, may be included in a will or trust agreement and is designed to help preserve the testator’s or settlor’s wishes and deter a beneficiary who may otherwise try to contest a will or trust provision. A no contest clause generally states that a beneficiary who contests the will or trust agreement forfeits their right to inherit under the instrument. Some clauses go further and provide that the beneficiary’s issue are also precluded from receiving anything under the will or trust agreement. When a no contest clause is included in a will, the beneficiary must choose to either accept the benefit as granted in the will, or challenge the document and risk losing the benefit entirely.

Although no contest clauses are valid in New York, courts disfavor them and construe them narrowly.

Other Important Will Information

• Intestacy

A testator should understand that if the testator dies without a will, the testator’s will fails, the testator’s beneficiaries predecease the testator, or the testator does not validly dispose of all of their assets by their will, revocable trust, joint tenancy, beneficiary designation, or otherwise, the state of New York provides for distribution of the assets according to the statutes governing intestate succession.

When assets pass by intestacy, the state of New York determines who receives the decedent’s property, in what order, and in what shares. Property escheats to the state of New York (the state receives the property) if the decedent has no heirs under the statute who can be located.

A testator’s heirs (also called distributees in New York) are generally the testator’s spouse, descendants, parents, siblings, grandparents, and the descendants of the testator’s grandparents. The state of New York is not the default beneficiary unless all the other prescribed beneficiaries predecease the decedent.

• Modifying or Revoking a Will

A testator who wishes to change their will may do so by either executing a new will or modifying an existing will by codicil. A testator can also revoke their will in its entirety. A will can be modified or revoked at any time until the testator either:

• Loses the capacity to make a will; or
• Dies.
• Grounds for Invalidity of Will

A will or codicil can be challenged on the grounds that it is invalid. A will or codicil may be found to be invalid because of:

• A lack of compliance with will formalities.
• Revocation by the testator.
• A lack of testamentary capacity of the testator.
• Undue influence, fraud, duress, coercion, or mistake.

Effect of Subsequent Events on Will

Certain life events that take place after a testator executes a will can change the terms of the will. Marriage, birth, adoption, divorce, or annulment all can affect a testator’s existing estate plan.

• Marriage

If a testator gets married after executing a will and the will does not contemplate that event happening, the testator’s spouse has rights in the testator’s estate that cannot be taken away unless the testator’s spouse signs an agreement waiving those rights. This is known as the spousal, or elective, share.

• Divorce / Annulment

If the testator divorces or their marriage is annulled after the testator has made a will, unless the will provides otherwise, all provisions of the will that affect the testator’s former spouse become void, including fiduciary appointments and bequests. The former spouse is treated as having predeceased the testator for purposes of the will provisions.

• Birth or Adoption of Child

Children born or adopted after a testator makes a will may have rights in the testator’s estate. An after-born child is a child born after the will was executed but during the testator’s lifetime or in gestation at the time of the testator’s death. A non-marital child born after the execution of a testator’s will can qualify as an after-born child of their father if the child can prove paternity.

Living Will

A living will provides an individual the opportunity to maintain autonomy over medical treatments when diagnosed with a terminal or end-stage condition, or if the individual is in a persistent vegetative state. Generally speaking, the living will sets out the conditions under which life prolonging procedures should be withdrawn to let the body die naturally. There is no statutory living will form in New York. Each living will should be customized so that it is an accurate representation of the individual’s wishes.

A living will may help to:

• Answer difficult questions regarding an individual’s preferences for death and dying.
• Reduce family arguments.
• Avoid unwanted and unnecessary medical care and expense.
• Provide a sense of peace and direction for the individual and family members.
• Assure that the dignity of the dying individual is a priority.

Information Included in Living Will

A living will allows an individual to clearly express their desires for providing, withholding, or withdrawing medical procedures, including those that would otherwise prolong or sustain life. An individual may include their wishes regarding any procedure in a living will. Individuals should try to consider their personal thoughts on many matters when preparing a living will, including:

• Controversial treatments that could apply to anyone, such as artificial nutrition and hydration.
• Any specific procedures they have reason to think may apply specifically to them.
• Any particular treatments they have strong feelings about regardless of whether they are likely to apply to them.

Procedures and treatments frequently addressed in a living will include:

• CPR.
• Mechanical respiration.
• Artificial nutrition and hydration.
• Antibiotics.
• Pain relief.

It is particularly important for an individual to execute a living will if they:

• Have specific views about a particular situation, such as living in a vegetative state or being kept alive by a ventilator.
• Want a health care agent or other person making decisions to be able to rely on their desires when making key end-of-life decisions.

Absent a specific position on these issues in a living will or otherwise, individuals risk an uninformed agent making a decision that is not in line with the individual’s wishes.

Advantages of Using a Living Will

A living will removes the guesswork involved in determining an incapacitated patient’s wishes regarding medical determinations that are of particular importance to the patient. Individuals can specify their wishes as to ventilation, artificial nutrition and hydration, antibiotics, painkillers, and anything else they consider important. Benefits of providing this information in a living will include that doing so can help to:

• Ensure that the patient’s wishes are known.
• Remove a significant burden to the health care agent who is otherwise tasked with making life and death decisions for another.
• Remove doubt and reduce the potential for family conflict during times of extreme distress.
• Provide unambiguous evidence of the principal’s wishes.

Requirements for a Valid Living Will

• Execution Requirements

There are no formal execution requirements for a living will in New York. The New York State Attorney General recommends that a living will:

• Be signed by the individual before two witnesses.
• Be signed by the two witnesses.

Contain a statement from the witnesses that the individual appeared to sign the document willingly.

• Witness Requirements

There are no witness requirements for a living will in New York. However, it is best practice to have the document executed under an attorney’s supervision with two disinterested witnesses.

Other Important Living Will Information

• Providing Copies of Living Wills

Individuals with a living will should distribute copies to family members and treating physicians.

• Revoking a Living Will

Because there is no specific law on living wills in New York, there are no specified revocation procedures. Individuals who wish to revoke a living will should do everything that they can to make sure that their intention is made clear to anyone who may be in possession of a copy of the existing living will.

• Enforceability of Living Wills

Unlike a health care proxy, which generally requires doctors and hospitals to allow an agent to act on behalf of an incapacitated principal, the living will is not binding on medical professionals. However, courts recognize that a living will should be given great weight as an expression of a patient’s right to control her own medical treatment.

• Faith-Specific Living Wills

Individuals can consult not only with their attorneys, but also with their clergy and religious advisors to make sure their living will accurately reflects their religious beliefs and applicable religious laws.

Some religious organizations provide their own living wills, the provisions of which can be incorporated into a living will. For example:

• Orthodox Christian Living Will.
• New York Halachic Living Will.

Difference Between Living Will and Health Care Proxy

• Living Will vs. Health Care Proxy

A living will focuses on end-of-life medical treatment decisions and provides explicit instructions, rather than relying on an agent’s judgment. With a health care proxy, an individual (called a “principal”) authorizes an agent to make health care decisions, receive protected health information, or both, for the principal.

Health Care Proxy

• Health Care Proxy

A health care proxy allows an individual (the “principal”) to appoint another person (typically referred to as the agent) to make health care decisions, receive protected health information, or both, on the individual’s behalf. A health care proxy becomes effective only on a determination of the individual’s incapacity. The health care proxy can provide generic or specific directions or restrictions based on the individual’s wishes.

• Advantages of Using a Health Care Proxy
• Allows Principal to Choose Who Makes Health Care Decisions on Principal’s Behalf
• Flexible Tool That Can Include Specific Direction
• Complements a Living Will
• Automatically Grants Agent Access to Protected Health Information Under HIPAA
• May Avoid Guardianship Proceeding or Statutory Appointment of Proxy
• Determination of Incapacity

Under New York law, a principal is presumed to be capable of making health care decisions and retains control over all health care decisions for herself until a primary or attending physician determines that the principal lacks the capacity to make those decisions.

The attending physician must consult with a second physician to confirm the determination of incapacity if the agent is making decisions to withdraw or withhold life-sustaining treatment, including artificial nutrition and hydration.

Requirements for a Valid Health Care Proxy

• Execution Requirements

To validly execute a health care proxy, the principal must sign and date the document in the presence of two witnesses who must also sign and date the document. A principal who cannot sign may request that another adult sign and date the document on the principal’s behalf, in the principal’s presence, and in the presence of the witnesses. New York law does not require the named agent to sign the document or to be present at the execution.

• Witness Requirements

For a health care proxy to be valid:

• The witnesses must be at least 18 years old.
• The person designated as agent cannot act as a witness.

Health Care Agents

• Agent Qualifications and Restrictions

New York law provides restrictions and limitations on who may become an agent. Those who cannot act as the principal’s agent for health care decisions include:

• An operator, administrator, or employee of a hospital where, at the time of the appointment, the principal is a patient or resident or has applied for admission, unless:
• the operator, administrator, or employee is related to the principal by blood, marriage, or adoption; or
• the named agent is a physician. However, if a physician is appointed as the agent, that physician cannot act as the patient’s attending physician after the authority under the health care proxy commences, unless the physician declines the appointment as agent at or before that time.
• A physician affiliated with a mental hygiene facility or a psychiatric unit of a general hospital when the principal is residing in or being treated by that facility or unit, unless the physician is related to the principal by blood, marriage, or adoption.
• A person who is not the spouse, child, parent, brother, sister, or grandparent of the principal, or the issue of or married to that type of person, if, at the time of appointment, she is also appointed as the health care agent for ten principals.

The principal should name a competent adult who knows and understands the principal’s religious and moral beliefs and who will act with integrity on the principal’s behalf as the agent.

• Health Care Agent’s General Discretion

A health care proxy authorizes an agent to make health care decisions for the principal when the principal can no longer make those decisions. The agent generally has broad discretionary authority when making health care decisions for the principal but must consider both the principal’s wishes and religious or moral beliefs. If the agent does not know and cannot reasonably determine the principal’s wishes and religious or moral beliefs, the agent must make decisions based on the principal’s best interests.

• Health Care Agent’s Discretion Regarding Life Prolonging Procedures

The agent’s general authority to make health care decisions for the principal does not include the authority to make decisions regarding the administration, refusal, or withdrawal of artificial nutrition and hydration. The agent cannot decide on questions of artificial nutrition and hydration for the principal if the agent:

• Does not reasonably know the principal’s wishes regarding artificial nutrition and hydration.
• Cannot ascertain the principal’s wishes regarding artificial nutrition and hydration with reasonable diligence.

To ensure that the agent has the information necessary to make artificial nutrition and hydration decisions, the principal can provide specific directions to the agent regarding artificial nutrition and hydration in the health care proxy.

• Timing of Agent’s Authority to Make Decisions and Retrieve Information

A health care proxy becomes effective only on a determination of the principal’s incapacity.

A health care proxy may include specific HIPAA release language to confirm to the health care provider, doctor, pharmacist, or other medical professional that the provider is authorized to release medical records to the health care agent and to avoid delay or confusion.

However, because the agent’s authority under a health care proxy does not begin until the principal is incapacitated, medical professionals cannot speak to the agent and share information concerning the patient without a separate, stand-alone HIPAA release until the principal’s physician has determined that the principal is incapacitated.

Other Important Health Care Proxy Information

• Providing Copies of Health Care Proxy

To use the health care proxy, a person need not provide an original. Copies of the health care proxy are valid and should be treated the same as an original.

Counsel should retain a copy of the health care proxy and provide several extra copies of the designation to the client and recommend that they be placed in the primary care and treating physicians’ files. The client’s primary care physician is likely to be notified in case of an emergency, and if this is done, the health care proxy will be on record.

• Revoking a Health Care Proxy

A health care proxy can be revoked by a competent principal at any time. A health care proxy can be revoked by:

• Notifying the agent or a health care provider:
• orally;
• in writing; or
• by any other act evidencing a specific intent to revoke the proxy.
• Executing a subsequent health care proxy. There is no requirement that a subsequent health care proxy expressly revoke any previous documents, but to avoid ambiguity, counsel should state this explicitly.

On the divorce or legal separation of the principal and the principal’s spouse, if the spouse was the named agent, that appointment is automatically revoked, unless the principal specifies otherwise.

• Notification of Revocation

Individuals who have a change of heart regarding their agent appointment should:

• Execute a new health care proxy as soon as practicable and write “REVOKED/VOID” on all copies of the prior proxy.
• Notify all existing and new agents and family members of the change.
• Notify health care providers or anyone else who has a copy of the revoked designation, or to whom agents might later present a copy.

As an added precaution, the individual could request that all parties who are notified confirm in writing that they have destroyed their copy of the prior designation.

• Limitations of the Health Care Proxy

A health care proxy is not suitable for addressing every issue that could arise regarding the principal’s health care decisions. Additional documents, such as a living will or HIPAA release, are often needed to make sure a principal’s needs and wishes are fully addressed. It is important and recommended that individuals make their preferences and wishes clear and in writing to help avoid potential family conflict, uncertainty, doubt, or guilt on behalf of the agent tasked with making these decisions.

What Happens If You Do Not Have a Health Care Proxy?

• Appointment of Proxy by Statute Absent a Health Care Proxy – New York

If a person becomes incapacitated and has not appointed a health care agent, New York statutes set the order of priority for appointing a surrogate to make health care decisions for an incapacitated individual. The individual of highest priority who is willing, available, and competent to act serves, as follows:

• A guardian authorized to make health care decisions on the patient’s behalf.
• The patient’s spouse, if not legally separated from the patient, or domestic partner.
• A child of the patient who is 18 years of age or older.
• The patient’s parent.
• A sibling of the patient who is 18 years of age or older.
• A close friend of the patient.