How to Make a Will in New York — Execution, Witnesses & Intestacy

A will is a written, signed document in which a New York adult directs who receives their probate property and names an executor to carry out those wishes. To be valid, a New York will must meet the formalities of EPTL 3-2.1 — signed at the end by the maker (the “testator”) and witnessed by two people. When a Brooklyn resident dies, that will is offered for probate in the Kings County Surrogate’s Court before it takes legal effect.

What a New York will actually controls

A will governs your probate estate — assets titled in your sole name with no built-in beneficiary or survivorship feature. For a typical Brooklyn family that means the brownstone or condo held in one name, a checking account, personal property, and a solely owned car or business interest. It is the instrument that lets you name guardians for minor children and choose your executor rather than leaving those choices to a judge.

Testator — the person who makes the will. Executor — the person named in the will to administer the estate. Distributee — a person who would inherit under law if there were no will.

New York will execution requirements (EPTL 3-2.1)

For a will to be valid in New York, EPTL 3-2.1 generally requires:

• The testator signs at the end of the will (or directs another to sign in their presence).
• The signing is witnessed by at least two people, who also sign within roughly 30 days of each other.
• The testator declares to the witnesses that the document is their will.
• The testator is 18 or older and of sound mind.

A defect in these formalities is the most common reason a will is challenged when it reaches 2 Johnson Street. Brooklyn’s higher-value estates draw more scrutiny, so getting execution right matters.

What a will does NOT control

A will is overridden by how assets are titled or designated:

• Jointly owned property with right of survivorship passes to the surviving owner automatically.
• Beneficiary-designation assets — retirement accounts, IRAs, and life insurance — pass to the named beneficiary regardless of the will.
• Assets in a living trust pass under the trust, not the will. See the trusts guide.

This is why a will alone rarely completes a Brooklyn plan — coordination is everything.

If you die without a will: New York intestacy (EPTL 4-1.1)

Die intestate (without a will) and EPTL 4-1.1 decides who inherits:

Survived by	Who inherits
Spouse, no children	Entire estate to spouse
Spouse and children	First $50,000 + half to spouse; remaining half to children
Children, no spouse	All to children, equally (by representation)
Parents, no spouse/children	All to parents
Siblings only	All to siblings, equally
No close kin	More distant relatives; ultimately to New York State

Intestate — dying without a valid will, so state law dictates distribution.

For a Flatbush or Bensonhurst family, intestacy can force a co-owned house onto children who must then sell or buy each other out — exactly the outcome a will prevents.

Holographic and nuncupative wills (EPTL 3-2.2)

New York almost never honors handwritten (holographic) or oral (nuncupative) wills. Under EPTL 3-2.2 they are valid only for narrow categories — active-duty armed-forces members and mariners at sea — and even then expire after a set period. Do not rely on one.

The self-proving affidavit

A self-proving affidavit is a notarized statement signed by your witnesses at the time of execution. It lets the Kings County Surrogate’s Court accept the will without tracking down witnesses years later — a real time-saver in a high-volume court. Always pair one with your will.

Updating or revoking a will

You revoke a New York will under EPTL 3-4.1 by executing a new will, by a codicil (a formally executed amendment), or by physically destroying it with intent to revoke. Marriage, divorce, and the birth of a child are classic triggers to revisit your will.

Codicil — a separately executed document that amends, but does not replace, an existing will.

How a Brooklyn will is later probated

After death, your executor files the original will with the Kings County Surrogate’s Court and follows the steps in the Brooklyn probate process. A clean, self-proved will makes that path far shorter.

FAQ

Does a New York will need to be notarized? The will itself does not, but the self-proving affidavit attached to it must be notarized to speed probate.

Can I write my own will in Brooklyn? You can, but it must still meet EPTL 3-2.1 formalities; a defective DIY will often fails at the Kings County court.

Where is my will probated if I live in Brooklyn? In the Kings County Surrogate’s Court at 2 Johnson Street, because venue follows the decedent’s county of domicile under SCPA 205.

Does a will avoid probate? No. A will is the document probated. To avoid probate, see the trusts guide.

Talk to an attorney

To have a New York will drafted and properly executed for your Brooklyn estate, book a 30-minute consultation with Russel Morgan: calendly.com/russel-morgan/30min.