Do You Really Need a Will?

If you live in New York and you have never signed a will, the state has already written one for you. It is called intestacy, and it almost never matches what you actually want. Below is a plain checklist to help you decide whether you need a will and what it should cover.

The quick yes-or-no checklist

You almost certainly need a will if any of these apply:

• You have minor children and want to name a guardian.
• You own real property anywhere in New York, from a Brooklyn co-op to upstate acreage.
• You want to leave something to an unmarried partner, a friend, or a charity.
• You want to choose who settles your estate rather than letting Surrogate’s Court decide.
• Your family situation includes stepchildren, a blended family, or someone you specifically want to include or exclude.

If none of these apply and your assets pass by beneficiary designation or joint ownership, a will may matter less, but it is still cheap insurance.

What a New York will must look like

Under EPTL 3-2.1, a valid New York will must be in writing, signed by you at the end, and witnessed by two people who sign within thirty days of each other. The witnesses do not have to read the document, but they do have to see you sign or hear you acknowledge your signature. Get one detail wrong and the entire will can fail, which is why a do-it-yourself form printed off the internet is risky in New York.

What a will actually controls

A will directs assets that pass through your probate estate, things in your sole name with no beneficiary listed. It also lets you name an executor and a guardian for minor children. What a will does not control is just as important:

• Life insurance and retirement accounts pass to the named beneficiary, not under your will.
• Jointly held bank accounts and property held as joint tenants pass automatically to the survivor.
• Assets in a living trust pass under the trust, not the will.

This is why reviewing your beneficiary forms is part of any honest New York estate plan.

The will is only one piece

A complete plan usually pairs the will with two lifetime documents that operate while you are alive: a durable power of attorney under General Obligations Law 5-1513, which lets someone manage your finances if you cannot, and a health care proxy under Public Health Law Article 29-C, which lets someone make medical decisions for you. A will does nothing while you are alive, so without these you may leave your family scrambling for a guardianship proceeding.

One myth worth clearing up

Many New Yorkers believe a will avoids probate. It does not. A will is the instruction sheet that probate follows in Surrogate’s Court. If avoiding probate is your goal, a revocable living trust is the tool to discuss, not a will alone.

A short note before you act

Every family and asset mix is different, and New York’s signing rules are unforgiving. Before you sign anything, talk with a New York estate planning attorney who can confirm your will meets EPTL 3-2.1 and fits with your beneficiary designations and lifetime documents. A short consultation now can spare your family a long, expensive problem later.