If you are new to estate planning, a will is the natural place to start. It is the document most people picture when they think about “getting their affairs in order” — and for good reason. A will lets you decide, in writing, who receives your property, who raises your minor children, and who will be in charge of carrying out your wishes after you are gone. Without one, New York State law makes those decisions for you.
This page is written for someone hearing about all of this for the first time. We will keep the legal jargon to a minimum, explain the rules in plain English, and point you to the related pieces of a complete plan. Morgan Legal Group, led by attorney Russel Morgan, Esq., helps families across all of New York — New York City, Long Island, Westchester, the Hudson Valley, and Upstate — put these documents in place correctly the first time.
What a Will Actually Does
A will is a set of written, legally binding instructions that take effect only when you die. Until then, you can change it, replace it, or revoke it entirely. In New York, a well-drafted will typically lets you:
- Name your beneficiaries — the people or charities who inherit your money, home, and personal belongings.
- Choose an executor — the person you trust to gather your assets, pay your debts and taxes, and distribute what remains.
- Appoint a guardian for any minor children, so a court is not left to guess who should raise them.
- Make specific gifts — a particular heirloom to a particular person, for example.
- Direct what happens to the “remainder” of your estate after specific gifts are made.
A common surprise for newcomers: a will does not avoid probate. Probate is the court-supervised process of proving a will is valid and authorizing the executor to act. To skip probate entirely, you generally need a revocable living trust — covered on our trusts page. Think of a will as the foundation, and the trust as an optional upgrade for privacy and speed.
How New York Makes a Will Valid: EPTL §3-2.1
New York does not let just any handwritten note count as a will. The state’s formal requirements live in the Estates, Powers and Trusts Law (EPTL) §3-2.1, and they exist to protect you from fraud and pressure. To be valid, a New York will generally must meet each of these:
| Requirement | What it means in plain English |
|---|---|
| Writing | The will must be in writing. |
| Signed at the END | You (the “testator”) must sign at the end of the document. Anything added below your signature may be disregarded. |
| Two witnesses | Two attesting witnesses must witness your signature (or your acknowledgment of it). |
| Publication | You must “publish” the will — tell the witnesses, in some clear way, that the document is your will. |
| Witness timing | The witnesses generally must sign within a 30-day window of one another. |
These rules sound simple, but small mistakes — signing in the wrong place, using a beneficiary as a witness, or skipping publication — are exactly what lead to a will being challenged or thrown out years later. This is the single biggest reason to have an attorney supervise the signing rather than relying on a downloaded form.
What Happens If You Die Without a Will (Intestacy)
If you die without a valid will, you are said to die “intestate,” and New York’s intestacy rules in EPTL Article 4 decide who inherits. The state, in effect, writes a will for you — and it may not match what you would have wanted.
For example, the law uses a fixed formula based on family relationships. A surviving spouse and children share the estate under a set statutory split; if there is no spouse or children, the property passes to other relatives in a defined order. Unmarried partners, close friends, and favorite charities receive nothing under intestacy, no matter how important they were to you. And if no eligible relatives can be found, the property can ultimately pass to the State of New York.
For most people, the takeaway is simple: a will is how you keep control. Intestacy is what happens when you give that control away by doing nothing.
Where a Will Fits in a Complete New York Estate Plan
A will is essential, but it is only one of four core documents that work together. A comprehensive New York plan coordinates all of them so there are no gaps:
- Will — directs who inherits and names your executor and guardians (this page).
- Trust(s) — can avoid probate, protect assets, and support long-term care planning. See trusts.
- Durable Power of Attorney — lets someone manage your finances if you cannot. Governed by GOL §5-1513; durable by default under the 2021 statutory short form. See power of attorney.
- Health Care Proxy — lets someone make your medical decisions, under New York Public Health Law Article 29-C. This is separate from the financial power of attorney. See healthcare proxy.
A will only speaks after death. The power of attorney and health care proxy protect you while you are alive but unable to act. That is why naming an agent in those documents is just as important as choosing your heirs. For the big picture of how these fit together, start with our estate planning overview.
A Quick Word on Trusts and Taxes
Many newcomers assume a will or a living trust will lower their estate taxes. It will not. A revocable living trust (EPTL Article 7) is a wonderful tool for avoiding probate, but it provides no estate-tax savings on its own. Tax reduction, asset protection, and Medicaid planning are the job of an irrevocable trust — which comes with its own trade-offs, including a five-year Medicaid look-back. A Supplemental Needs Trust (EPTL 7-1.12) can preserve a loved one’s government benefits while still providing for them.
Most New York families will never owe estate tax, but it is worth knowing the numbers. For deaths in 2026, the New York basic exclusion amount is $7,350,000. New York also has a feature called the “cliff.” If your taxable estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the entire exemption and your estate is taxed from the first dollar, at progressive rates of 3% to 16%. New York imposes no gift tax, but gifts made within three years of death are added back into the taxable estate. If your estate is anywhere near these thresholds, talk to an attorney before relying on gifts alone — our New York estate tax guide explains this in more detail.
Common Mistakes First-Timers Make
- Using a generic online form. Many fail New York’s §3-2.1 signing rules and create more problems than they solve.
- Letting the will go stale. Marriage, divorce, a new child, a move, or a death in the family can all change who should inherit. Review your will every few years.
- Naming a beneficiary as a witness. This can jeopardize that person’s gift. Witnesses should be neutral.
- Forgetting the other three documents. A will without a power of attorney and health care proxy leaves you exposed during a medical crisis.
- Assuming a will avoids probate. It does not. If privacy and speed matter to you, ask about a trust.
If your family or property reaches beyond a single county — a home upstate and an apartment in the city, for instance — a coordinated, statewide approach matters even more. See our New York statewide guide.
Frequently Asked Questions
Do I need a lawyer to make a will in New York?
The law does not strictly require one, but New York’s formalities under EPTL §3-2.1 — signing at the end, two witnesses, and publication — are easy to get wrong. An attorney-supervised signing dramatically reduces the risk of a will being challenged or invalidated later.
Does a will let my family avoid probate?
No. A will must go through probate, the court process that proves it is valid. To avoid probate, you generally need a revocable living trust. Many New Yorkers use both a will and a trust together.
What happens if I never make a will?
You die “intestate,” and EPTL Article 4 decides who inherits based on a fixed family formula. Unmarried partners and chosen beneficiaries receive nothing, and your property could ultimately pass to the State of New York.
Will a will reduce my estate taxes?
No. Neither a will nor a revocable living trust reduces estate tax. Tax planning is handled through irrevocable trusts and lifetime strategies. For 2026, New York’s basic exclusion is $7,350,000, with a cliff at $7,717,500 above which the full exemption is lost.
How often should I update my will?
Review it after any major life event — marriage, divorce, a new child, a significant change in assets, or a move — and otherwise every three to five years to make sure it still reflects your wishes.
Talk to a New York Estate Planning Attorney
A will is the foundation of a plan that protects the people you love. Morgan Legal Group helps families throughout New York State build wills, trusts, powers of attorney, and health care proxies that work together. To get started, schedule a consultation with Russel Morgan, Esq..
Further reading from Morgan Legal Group: the New York estate planning guide.