Making a Will might be on your to-do list, but it’s one of those tasks that’s easy to delay until something forces your hand. Maybe you’ve thought about it after a big life change. Maybe you’ve scribbled some notes or used an online form, hoping it would be good enough.
The truth is, writing a Will in New York involves more than just listing who gets what. Small missteps can turn into big problems, especially if your Will doesn’t meet legal requirements. In some cases, the court may even treat it as if you never had one at all.
Before that happens, it’s worth knowing where most people go wrong. Here are five of the biggest mistakes that often come up when making a Will in New York, and what you can do to avoid them.
1. Using a DIY Will That Doesn’t Follow New York Law
Online templates and fill-in-the-blank forms might seem convenient, but they rarely meet the requirements set by New York law. Your Will must be executed properly to be considered valid.
Under New York Estates, Powers and Trusts Law (EPTL) § 3-2.1, a Will must be:
- In writing
- Signed at the end by the testator (you)
- Signed in the presence of at least two witnesses
- Declared to the witnesses as your Last Will and Testament
Mistakes like failing to have two witnesses present at the same time, or not declaring the document as your Will in front of them, can make the Will invalid. If that happens, your estate could be distributed according to New York’s intestacy laws instead.
2. Naming Witnesses Who Stand to Inherit
You may trust a friend or family member to witness your Will, but if that person is also listed as a beneficiary, you could be putting their inheritance at risk.
Under EPTL § 3-3.2, any gift to a witness is presumed to be void unless:
- There were at least two other disinterested witnesses, or
- The witness is also a legal heir under intestacy law, in which case they can receive the lesser of what they would have inherited or what the Will gives them.
This rule is in place to prevent fraud and undue influence. If your witnesses are also your beneficiaries, the court may reduce or eliminate their inheritance, even if you had every intention to provide for them.
To avoid this, choose two witnesses who are not named in your Will and who don’t stand to benefit from it.
3. Forgetting to Update Your Will After Major Life Changes
Life rarely stays the same, and neither should your Will. Marriage, divorce, births, deaths, or changes in relationships or financial status can all affect your estate plan.
In New York, if you marry after creating a Will that doesn’t provide for your spouse, the law may still allow your surviving spouse to claim an elective share under EPTL § 5-1.1-A, even if they’re not named in your Will.
Divorce also has legal consequences. Once a divorce is finalized, New York law automatically revokes any dispositions to your ex-spouse under the Will (EPTL § 5-1.4), unless the Will explicitly states otherwise.
That said, relying on automatic changes is risky. It’s better to update your Will any time your circumstances change significantly. Otherwise, you risk creating confusion, or worse—accidentally disinheriting someone you care about.
4. Not Dealing with Digital Assets or Beneficiary Conflicts
These days, your legacy includes more than just bank accounts and real estate. Think about:
- Online accounts (email, social media, cloud storage)
- Cryptocurrency and digital wallets
- Photos and intellectual property stored online
New York allows you to designate a digital assets fiduciary under the Revised Uniform Fiduciary Access to Digital Assets Act (Article 13-A of the EPTL). Without clear instructions, your executor may not be able to access or manage your digital property, leading to lost assets or even identity theft.
Another common mistake is failing to coordinate your Will with assets that pass outside of probate, such as:
- Life insurance policies
- Retirement accounts
- Joint accounts with rights of survivorship
- Transfer-on-death designations
If your Will says one thing but your beneficiary forms say another, the named beneficiary will take priority. That can lead to disputes among family members and may result in someone receiving more—or less—than you intended.
5. Naming the Wrong Executor (or No Executor at All)
Choosing an executor is not just about picking someone you trust. It’s about selecting someone who:
- Lives in the United States (preferably New York)
- Is responsible, detail-oriented, and capable of handling legal paperwork
- Is not legally ineligible (such as a felon or non-citizen living outside the country)
Under Surrogate’s Court Procedure Act (SCPA) § 707, certain individuals are disqualified from serving as an executor.
If you don’t name an executor—or if the person you named is unable or unwilling to serve—the Surrogate’s Court will appoint one. That may not be who you would have chosen.
Naming a backup (successor) executor in your Will gives you more control and makes the process smoother if your first choice cannot serve.
Don’t Stop with a Will: Other Documents to Consider
A Will allows you to direct who receives your assets after death, but it doesn’t cover everything. To create a more complete plan and avoid court involvement during your lifetime, you may want to include other documents that are recognized under New York law:
- Revocable Living Trust. This document lets you transfer ownership of your assets into a trust you control during your lifetime. It can keep assets out of probate and allow for a smoother transition of management if you become incapacitated.
- Power of Attorney. Under New York General Obligations Law Article 5, Title 15, you can appoint someone to handle financial or legal matters on your behalf. This can be limited or broad, and it continues even if you lose capacity—unless you state otherwise.
- Health Care Proxy. As outlined in New York Public Health Law Article 29-C, this document lets you name an agent to make medical decisions for you if you’re unable to speak for yourself.
- Living Will. While not formally defined in statute, a Living Will is recognized by New York courts and allows you to spell out your wishes for end-of-life care, including decisions about resuscitation, life support, and palliative treatment.
These documents work alongside your Will to cover different aspects of your life and future care. Without them, your loved ones may need court approval just to act on your behalf in a crisis. Take the time and consult with an estate planning attorney to put a few additional pieces in place to reduce confusion, delays, and conflict later on.
Make Sure Your Will Does What You Want It to Do
Small mistakes in your Will can cause big problems later. Whether you’re just starting the process or updating an outdated document, it’s worth getting it right now—so your wishes are honored and your loved ones aren’t left sorting through confusion.
At Sheryll Law, P.C., we work with individuals and families across Riverhead and the East End of Long Island to create clear, legally sound estate plans. We’ll help you put the right documents in place, review what you already have, and make sure your Will aligns with your goals.
Your online search for “Last Will and Testament lawyers near me,” or “New York Wills lawyers” brought you here. Take the next step and call us at (631) 506-8440 or fill out our confidential online form to schedule your consultation.
Protect your Legacy with Sheryll Law.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
Sheryll Law, P.C.
633 East Main Street, Suite 2
Riverhead, New York 11901
(631) 506-8440
https://sheryll-law.com/
