How to Make a Valid Will in New York (EPTL 3-2.1)

A New York will is a written, witnessed document that directs how your probate property passes at death and names the executor who carries it out. To be valid under EPTL 3-2.1, it must be in writing, signed by the testator at the end, and signed by two witnesses who attest within a 30-day window. A will controls only assets that pass through your estate — not jointly titled or beneficiary-designation property. After death, the will is filed for probate in the Surrogate’s Court of the county where you were domiciled.

Because New York probate is county-based, the same will may be probated in any of the 62 counties depending on where the testator lived. The will’s validity, however, is governed by one uniform statute statewide — EPTL 3-2.1 — so the execution rules below apply identically in Albany, Buffalo, White Plains, and Manhattan.

What makes a will valid in New York (EPTL 3-2.1)

Execution requirements. Under EPTL 3-2.1, a New York will must be (1) in writing; (2) signed at the end by the testator (or by another at the testator’s direction and in their presence); (3) the signing or acknowledgment made before each of at least two attesting witnesses; and (4) the witnesses sign within 30 days of one another. The testator should declare to the witnesses that the document is their will.

A few practical points that follow from the statute:

• Sign at the end. Anything written below the signature line may be disregarded. Don’t add bequests after you sign.
• Two competent witnesses. A beneficiary can witness a New York will, but doing so can void that witness’s gift under EPTL 3-3.2 unless there are enough disinterested witnesses. Use neutral witnesses.
• No notary required for validity — but a self-proving affidavit (below) is strongly recommended.

What a will does NOT control

A will only governs probate assets — property titled in the decedent’s name alone with no beneficiary designation. The following pass outside the will regardless of what it says:

• Jointly owned property with right of survivorship (passes to the surviving owner).
• Beneficiary-designation assets — life insurance, IRAs, 401(k)s, and payable-on-death accounts go to the named beneficiary.
• Assets in a trust — already owned by the trustee. See our guide to trusts.

This is why a “simple will” alone often leaves real planning undone. If you want to keep assets out of any New York Surrogate’s Court, a funded living trust does that; a will does not.

What happens if you die without a will in New York (EPTL 4-1.1)

Intestate. A person who dies without a valid will dies intestate, and their probate property is distributed under EPTL 4-1.1 — not to whomever they wished, but to relatives in a fixed statutory order.

Survivors	Who inherits (EPTL 4-1.1)
Spouse, no children	Spouse takes everything
Spouse and children	Spouse takes $50,000 + half the balance; children split the rest
Children, no spouse	Children take everything, equally (by representation)
Parents, no spouse or children	Parents take everything
Siblings only	Siblings share equally
No close relatives	More distant kin per the statute; ultimately the State

This estate is opened as an administration (not probate) by a petitioner with priority under SCPA 1001. See executor and administrator duties.

Holographic and nuncupative wills (EPTL 3-2.2)

New York rarely honors informal wills. Under EPTL 3-2.2, a holographic (handwritten, unwitnessed) will or a nuncupative (oral) will is valid only for members of the armed forces during armed conflict, persons serving with the armed forces, and mariners at sea — and even then it expires within a set period after the danger passes. For nearly every New Yorker, an unwitnessed will is no will at all.

The self-proving affidavit

A self-proving affidavit is a sworn statement by the witnesses, taken before a notary, confirming the will was properly executed. It is not required for validity, but it lets the will be admitted to probate without locating and re-examining the witnesses years later — a meaningful time-saver in busy downstate counties. Have one signed when the will is executed.

Updating or revoking a New York will (EPTL 3-4.1)

Codicil. A codicil is a separate, formally executed amendment to an existing will; it must meet the same EPTL 3-2.1 formalities as the will itself.

You can revoke a will under EPTL 3-4.1 by a later will or codicil, or by a physical act (burning, tearing, or canceling) done with intent to revoke. Marriage, divorce, or new children change how a will operates — divorce, for example, generally revokes provisions for a former spouse (EPTL 5-1.4). Review your will after any major life event.

How your will is later probated, county by county

Wherever you live in New York, your executor will file the original will in the Surrogate’s Court of your county of domicile (SCPA 205), petition for probate (SCPA 1402), give notice to your distributees, and obtain letters testamentary. The mechanics — e-filing, fees, and timelines — vary by county. Our statewide probate process guide and Surrogate’s Court overview explain the path, and the New York estate guide covers county-by-county filing realities.

Frequently asked questions

Does a New York will need to be notarized? No — notarization is not required for validity under EPTL 3-2.1. Two attesting witnesses are required. A notarized self-proving affidavit is optional but speeds probate.

Can my spouse and I make one joint will? You can, but it is rarely advisable in New York; reciprocal (mirror) wills usually serve better and avoid binding the survivor.

Is a will I signed in another state valid in New York? Generally yes, if it was validly executed where signed or where you were domiciled (EPTL 3-5.1). It still must be probated in your New York domicile county.

Where do I file the will after death? In the Surrogate’s Court of the county where the decedent was domiciled at death (SCPA 205). There is no single statewide filing.

Plan your will with a New York attorney

To draft or update a New York will correctly under EPTL 3-2.1, book a 30-minute consultation with Russel Morgan of Morgan Legal Group. This article is informational and does not create an attorney-client relationship.