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LEGAL MATTERS: Can I Draft My Own Will?

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By Kathleen G. Moriarty, Peters & Moriarty, Attorneys and Counselors of Law

Legal Matters is a regular column intended to address general legal concerns. Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.

Yes. And no.

Although New York law does not require that a will be drafted by an attorney, that it be typed, or that certain form language be used, there are certain minimum requirements that must be met for the will to be valid.

The will must “be signed at the end…by the testator.” Although the definition of “signature” is flexible, and another person is permitted to sign for the testator if she is physically unable to do so, the signature must be “at the end.”

The will must also be signed, at the end, by two witnesses. In most cases, any will provisions that fall after the signature will not be considered.

These minimal requirements serve as examples and are not inclusive; they should not be relied on to draft your own will.

Although Surrogate’s Court typically takes intent into consideration, whether intent can trump a technical failure is case specific.

Technical requirements aside, there are several important substantive factors to consider when drafting a will – among other things, property being disposed of; estate tax consequences, if applicable; who is gifted specific property; who is gifted the remainder; special concerns where the beneficiary is a minor. I would not consider these factors lightly or without legal advice.

Although several websites are available to assist in creating legally binding documents, such as wills and formation documents for business entities (LLCs, corporations, etc.), these sites usually contain a disclaimer stating that they do not provide legal advice. As such, I would recommend using those sites with caution. I certainly wouldn’t try to do my own electric work!

 

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