How to Make a Will in New York — EPTL 3-2.1 Rules

A will is a legal document that directs how your property is distributed after death and names the executor who will carry out your wishes. In New York, a valid will must meet the formalities of EPTL 3-2.1 — signed at the end by the testator and witnessed by two people. Without a valid will, New York’s intestacy statute (EPTL 4-1.1) decides who inherits. For a Brooklyn resident, the will later goes through probate at the Kings County Surrogate’s Court.

What a will does in New York

A will lets you name beneficiaries, leave specific gifts, appoint an executor, and (if you have minor children) nominate a guardian. It controls the assets that pass through your estate — including a solely owned Brooklyn brownstone, since New York has no transfer-on-death deeds for real property.

Executor: the person named in a will to settle the estate, confirmed by the Surrogate’s Court, which then issues Letters Testamentary.

New York will execution requirements (EPTL 3-2.1)

For a typed (attested) will to be valid in New York, EPTL 3-2.1 requires:

1. The will is signed at the end by the testator (or by another at the testator’s direction and in their presence).
2. The testator signs or acknowledges the signature in the presence of at least two witnesses.
3. The testator declares the document to be their will.
4. The two witnesses sign within roughly 30 days of each other.

Missing these formalities is a leading ground for a will contest — see contested estates.

What a will does NOT control

A will only governs probate assets. It does not control:

• Jointly owned property with right of survivorship — passes automatically to the co-owner.
• Beneficiary-designation assets — life insurance, IRAs, and 401(k)s pass to the named beneficiary.
• Assets held in a trust — governed by the trust, not the will. See trusts.

What happens without a will: intestacy (EPTL 4-1.1)

If you die without a valid will, EPTL 4-1.1 distributes your estate by family situation:

Survivors	Who inherits
Spouse, no children	Spouse takes everything
Spouse and children	Spouse takes $50,000 plus half; children split the rest
Children, no spouse	Children share equally
Parents, no spouse or children	Parents inherit
No close relatives	More distant kin, determined by kinship (SCPA 2225)

In Brooklyn, where families are often large and dispersed, intestacy frequently triggers kinship proceedings to identify heirs.

Holographic and nuncupative wills

New York rarely recognizes informal wills. Under EPTL 3-2.2, a holographic (handwritten, unwitnessed) will or a nuncupative (oral) will is valid only in narrow circumstances — chiefly for members of the armed forces during armed conflict and certain mariners at sea. For nearly all Brooklyn residents, a properly witnessed will is the only reliable option.

Self-proving affidavit

A self-proving affidavit is a notarized statement by the witnesses, attached to the will, confirming they observed proper execution. It lets the Kings County Surrogate’s Court admit the will without tracking down witnesses years later — speeding probate and reducing cost. Strongly recommended for any New York will.

Updating or revoking a will

You can change a will with a codicil (a formal amendment, executed with the same EPTL 3-2.1 formalities) or replace it entirely. Under EPTL 3-4.1, a will is revoked by a later will or by a physical act — burning, tearing, or destroying it with intent to revoke. Major life events (marriage, divorce, a new Brooklyn property purchase) are signals to update.

How a Brooklyn will is probated

After death, the named executor files the original will with the Kings County Surrogate’s Court at 2 Johnson Street under SCPA 1402. The court validates it, issues Letters Testamentary, and supervises administration. Walk through every step in the Brooklyn probate process guide.

Wills FAQ

Is a will from another state valid in New York? Generally yes, if validly executed where made — but it still must be probated in the Kings County Surrogate’s Court for a Brooklyn decedent.

Do I need witnesses? Yes — two witnesses are required under EPTL 3-2.1 for a standard typed will.

Can I write my own will by hand? New York rarely honors handwritten unwitnessed wills (EPTL 3-2.2); use a properly executed, witnessed will.

Get your New York will right

Russel Morgan drafts and reviews New York wills so they survive probate. Book a 30-minute consultation or compare a will to a trust.