New York Will and Trust Laws: Witnesses, Lifetime Trusts (2026)

Under New York law, a will must be in writing, signed at the end by the testator, and attested by at least two witnesses: the testator signs in each witness's presence or acknowledges the signature to each, declares to each that the document is his or her will, and the witnesses sign at the end within one 30-day period (Estates, Powers and Trusts Law (EPTL) 3-2.1). Any person 18 or older "of sound mind and memory" may make a will (EPTL 3-1.1), and no notary is required for validity. Living trusts, which New York law calls lifetime trusts, are governed by EPTL Article 7, and a lifetime trust is irrevocable unless it expressly says it is revocable (7-1.16).

Compared with the wills and trusts laws by state, four New York rules deserve attention first: the testator must declare the will to the witnesses, under New York's own execution rules a handwritten or oral will is valid only for certain members of the armed forces in wartime service, people serving with them and mariners at sea (a signed handwritten will can also qualify under the foreign-execution rule), a lifetime trust needs an acknowledgment or two witnesses, and an electronic-will law has been enacted but does not take effect until December 12, 2027.

Information last verified on 2026-10-19. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers New York statutes on making, signing, proving, changing and revoking wills (EPTL Articles 3 and 5 and related sections of the Surrogate's Court Procedure Act) and on lifetime trusts (EPTL Article 7). It does not cover what happens when someone dies without a will or how estate administration works (see New York probate), small-estate procedures (see the New York small estate affidavit page), powers of attorney (see New York power of attorney laws), or taxes. A living will is a health-care directive, not a will; see the New York advance directive tool.

What makes a will valid in New York?

Section 3-1.1 sets capacity: "Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property."

Section 3-2.1(a) requires that every will "must be in writing, and executed and attested in the following manner." The steps are:

1. Signature at the end. The will "shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and by his direction" (3-2.1(a)(1)). A person who signs the testator's name must also sign his or her own name and residence address and is not counted as one of the necessary attesting witnesses; "A will lacking the signature of the person signing the testator's name shall not be given effect," although a missing address of that person does not affect validity (3-2.1(a)(1)(C)).
2. Signing before, or acknowledging to, each witness. "The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately" (3-2.1(a)(2)).
3. The declaration. The testator "shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will" (3-2.1(a)(3)).
4. Two witnesses within 30 days. "There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will" (3-2.1(a)(4)).

Paragraph (4) adds two softeners: "There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled," and "The failure of a witness to affix his address shall not affect the validity of the will."

Words after the signature

The signature has to come at the end. Under 3-2.1(a)(1)(B), "No effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator, or to any matter preceding such signature which was added subsequently to the execution of the will."

No harmless-error rule

Part 2 of EPTL Article 3, which governs execution of wills, consists of sections 3-2.1 and 3-2.2, and neither lets a court admit a will that was not executed and attested as 3-2.1 requires. The only allowances in 3-2.1 itself are the rebuttable presumption on the 30-day period and the rule on missing witness addresses. Before admitting a will to probate, the Surrogate's Court "must be satisfied with the genuineness of the will and the validity of its execution" (SCPA 1408(1)).

Gifts to a witness

A witness who is also a beneficiary puts the gift, not the will, at risk. Under EPTL 3-3.2(a)(1), a disposition to an attesting witness "is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder." Subject to that rule, the gift "is effective unless the will cannot be proved without the testimony of such witness, in which case the disposition or appointment is void" (3-3.2(a)(2)). A witness whose gift is void and who would be a distributee if the will were not established may still receive "so much of his intestate share as does not exceed the value of the disposition made to him in the will" (3-3.2(a)(3)).

Wills signed in another state

Under EPTL 3-5.1(c), a will disposing of personal property wherever located, or New York real property, made inside or outside New York by a domiciliary or a non-domiciliary, "is formally valid and admissible to probate in this state, if it is in writing and signed by the testator, and otherwise executed and attested in accordance with the local law of: (1) This state; (2) The jurisdiction in which the will was executed, at the time of execution; or (3) The jurisdiction in which the testator was domiciled, either at the time of execution or of death." Because the rule requires a will "in writing and signed by the testator," an oral will made elsewhere does not qualify under it.

Does a New York will need to be notarized? The self-proving affidavit

No notary is part of the 3-2.1 signing rule, and New York has no notarized-will alternative to attesting witnesses. Notarization comes in through the witness affidavit in SCPA 1406(1):

"In addition to other procedures prescribed for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint."

The statute then sets the effect: the witness's sworn statement "shall be accepted by the court as though it had been taken before the court, unless: (a) a party entitled to process in the proceeding raises objection thereto or (b) for any other reason the court may require that the witness or witnesses be produced and examined." A notary is one kind of officer authorized to administer oaths; the statute is not limited to notaries. This page does not reproduce an affidavit form.

Are handwritten (holographic) and oral wills valid in New York?

Under New York's own execution rules, for most people, no. Section 3-2.1(a) requires every will to be "in writing, and executed and attested" with two witnesses, so under New York law a handwritten will without the 3-2.1 formalities, and any oral will, is not valid. Section 3-2.2 makes a narrow exception for both:

"A nuncupative or holographic will is valid only if made by: (1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged. (2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict. (3) A mariner while at sea." (EPTL 3-2.2(b))

These wills expire. Under 3-2.2(c), a will made by a member of the armed forces becomes invalid "upon the expiration of one year following his discharge from the armed forces"; one made by a person serving with or accompanying an armed force becomes invalid one year after that person stops serving with or accompanying it; and a mariner's will made at sea becomes invalid "upon the expiration of three years from the time such will was made."

Separately, the foreign-execution rule in 3-5.1(c), described above, makes a will that is "in writing and signed by the testator" formally valid if it was executed and attested under the law of the place where it was signed or of the testator's domicile at signing or at death. A signed handwritten will that is valid under one of those laws can therefore be admitted under that section. An oral will cannot, because 3-5.1(c) requires a will in writing and signed.

Electronic wills and remote witnessing: enacted, effective December 12, 2027

New York does not allow electronic wills today. Section 3-2.1 requires a will in writing, signed at the end, with witnesses who attest the signature "as affixed or acknowledged in their presence," and it contains no provision for electronic signatures or for witnesses who appear by video.

That changes on December 12, 2027. Chapter 637 of the Laws of 2025, signed December 12, 2025, adds a new Part 6 to EPTL Article 3 (sections 3-6.1 through 3-6.9) on electronic wills. Chapter 89 of the Laws of 2026, signed February 13, 2026, amended it to take effect two years after it became law. The official text of each new section carries the note "Effective December 12, 2027." Until that date, none of the following is law.

Under section 3-6.6(a) as enacted, an electronic will must be:

• "a record that is readable as text at the time of signing";
• signed at the end by the testator, or by another individual in the testator's name "in the testator's physical presence and by the testator's direction";
• declared by the testator to each attesting witness "in their physical or electronic presence" to be the testator's will; and
• signed at the testator's request by at least two individuals, "each of whom is a domiciliary of a state," within a 30-day period after witnessing.

Two further rules stand out. Under 3-6.9, "Within thirty days of its execution, an electronic will with audit trail data shall be electronically filed with the New York state unified court system either by the testator or another person duly authorized by the testator," and "The failure to timely file an electronic will with the New York state unified court system shall result in the unfiled electronic will being deemed invalid." Under 3-6.8, an electronic will "may be simultaneously executed, attested, and made self-proving by acknowledgment of the testator and affidavits of the witnesses," which must conform with SCPA 1406 and "must indicate that the will was signed electronically."

Changing or revoking a New York will

Methods of revocation

Section 3-4.1(a) states that a revocation or alteration intended by the testator "may be effected in the following manner only":

• A will or any part of it may be revoked or altered by "Another will" or by "A writing of the testator clearly indicating an intention to effect such revocation or alteration, executed with the formalities prescribed by this article for the execution and attestation of a will" (3-4.1(a)(1)).
• A will may be revoked by "An act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction" performed by the testator, or by another person in the testator's presence and by the testator's direction; in that second case, the revocation "shall be proved by at least two witnesses, neither of whom shall be the person who performed the act of revocation" (3-4.1(a)(2)).

"The revocation of a will, as provided in this section, revokes all codicils thereto" (3-4.1(c)).

Reviving an earlier will

Under 3-4.6(a), if a testator makes a later will that revokes or alters an earlier one, "a revocation of the later will does not, of itself, revive the prior will or any provision thereof."

Marriage after the will

Marriage is not one of the methods listed in 3-4.1(a), which provides that, except as otherwise provided in the chapter, a revocation or alteration "may be effected in the following manner only." Section 5-1.3, which gives a later spouse the share he or she would have taken in intestacy unless a written antenuptial agreement provided for the spouse, applies only where "the testator leaves a will executed prior to September first, nineteen hundred thirty." The surviving spouse's right of election under 5-1.1-A is described below.

Divorce, annulment and separation

Section 5-1.4 reaches well beyond the will:

"Except as provided by the express terms of a governing instrument, a divorce (including a judicial separation as defined in subparagraph (f)(2)) or annulment of a marriage revokes any revocable (1) disposition or appointment of property made by a divorced individual to, or for the benefit of, the former spouse, including, but not limited to, a disposition or appointment by will, by security registration in beneficiary form (TOD), by beneficiary designation in a life insurance policy or (to the extent permitted by law) in a pension or retirement benefits plan, or by revocable trust, including a bank account in trust form" (EPTL 5-1.4(a))

Revoked provisions "are given effect as if the former spouse had predeceased the divorced individual as of the time of the revocation" (5-1.4(b)(1)), and a provision "revoked solely by this section shall be revived by the divorced individual's remarriage to the former spouse" (5-1.4(b)(2)). The same rule revokes any revocable nomination of the former spouse "to serve in any fiduciary or representative capacity, including as a personal representative, executor, trustee, conservator, guardian, agent, or attorney-in-fact" (5-1.4(a)(3)), and the divorce converts property the two held as joint tenants with right of survivorship into a tenancy in common (5-1.4(c)), in each case except as the express terms of the governing instrument provide. A judicial separation counts only if the final decree or judgment of separation "was rendered against the spouse" (5-1.4(f)(2)). The statute reaches only revocable dispositions, yields to the express terms of the governing instrument, and applies to pension and retirement plan designations only "to the extent permitted by law." For employer plans governed by ERISA, the U.S. Supreme Court held in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), that federal law pre-empts a state statute revoking a spouse's beneficiary designation on divorce as applied to those plans (see the wills and trusts hub).

Children born after the will

Section 5-3.2(a) applies when a testator has a child born after the will and dies leaving that child "unprovided for by any settlement, and neither provided for nor in any way mentioned in the will." The result depends on the testator's family when the will was signed:

• If the testator had one or more children living when the will was signed and the will made no provision for any of them, "an after-born child is not entitled to share in the testator's estate" (5-3.2(a)(1)(A)).
• If the will provided for one or more of those children, the after-born child shares in the testator's estate as 5-3.2(a)(1)(B) sets out.
• "If the testator has no child living when he executes his last will, the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate" (5-3.2(a)(2)).

The intestate shares are explained on the New York probate page.

Limits on what a New York will can do

Elective share. Under EPTL 5-1.1-A(a)(2), the elective share "is the pecuniary amount equal to the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate." The net estate includes testamentary substitutes, among them a disposition in trust or otherwise to the extent the decedent "at the date of his or her death retained either alone or in conjunction with any other person who does not have a substantial adverse interest, by the express provisions of the disposing instrument, a power to revoke such disposition" (5-1.1-A(b)(1)(F)(ii)). Property in a revocable lifetime trust therefore counts. The election "must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent's death, except as otherwise provided in subparagraph 2 of this paragraph" (5-1.1-A(d)(1)). Under 5-1.1-A(d)(2), the Surrogate's Court may extend the time before it runs out, for up to six months on any one application, and may relieve a spouse from a default in limited circumstances.

No-contest clauses. New York enforces them. Under 3-3.5(b), such a condition "is operative despite the presence or absence of probable cause for such contest," subject to the exceptions the section lists. Among them, the condition "is not breached by a contest to establish that the will is a forgery or that it was revoked by a later will, provided that such contest is based on probable cause" (3-3.5(b)(1)), and "An infant or incompetent may affirmatively oppose the probate of a will without forfeiting any benefit thereunder" (3-3.5(b)(2)). Under 3-3.5(b)(3), these steps do not forfeit a benefit under the will: objecting to the jurisdiction of the court; disclosing information about a document offered for probate or relevant to the probate proceeding; refusing or failing to join a probate petition or to sign a consent or waiver of notice; the preliminary examination under SCPA 1404 of the proponent's witnesses, the person who prepared the will, the nominated executors and the proponents (and others the court allows on special circumstances); and starting, joining or acquiescing in a proceeding to construe the will.

Gifts to relatives who die first. For instruments executed on or after September 1, 1992, a gift to the testator's issue or to a brother or sister who dies before the testator leaving issue who survive the testator "does not lapse but vests in such surviving issue, by representation," unless the will provides otherwise (3-3.3(a)(2)).

Keeping the original will safe

A New York testator can deposit a will with the Surrogate's Court during life. Under SCPA 2507, "The court of any county upon being paid the fees allowed therefor by law shall receive and deposit in the court any will of a domiciliary of the county which any person shall deliver to it for that purpose and shall give a written receipt therefor to the person depositing it."

After a death, if there is reasonable ground to believe that a person knows where a will is or about its destruction, the court may order that person to attend and be examined, and may require the will to be produced and filed. The court "may impose the reasonable attorneys fees of the petitioner in such a proceeding against a respondent when the court determines the respondent did not have good cause to withhold production of such will or codicil" (SCPA 1401).

Lifetime (living) trusts in New York

The governing law

New York's trust rules are in Article 7 of the EPTL. Under 7-1.14, "Any person, as defined in 1-2.12, may by lifetime trust dispose of real and personal property. A natural person who creates a lifetime trust shall be eighteen years of age or older."

Signing formalities: acknowledgment or two witnesses

Section 7-1.17(a) sets the formality:

"Every lifetime trust shall be in writing and shall be executed and acknowledged by the person establishing such trust and, unless such person is the sole trustee, by at least one trustee thereof, in the manner required by the laws of this state for the recording of a conveyance of real property or, in lieu thereof, executed in the presence of two witnesses who shall affix their signatures to the trust instrument." (EPTL 7-1.17(a))

A creator can therefore satisfy the section either by an acknowledgment of the kind used to record a deed or by signing in front of two witnesses who sign the trust instrument, and, unless the creator is the sole trustee, at least one trustee must also execute it.

Irrevocable unless it says otherwise

New York's default runs against revocability:

"A lifetime trust shall be irrevocable unless it expressly provides that it is revocable. In addition to the method set forth in 7-1.17, a revocable lifetime trust can be revoked or amended by an express direction in the creator's will which specifically refers to such lifetime trust or a particular provision thereof." (EPTL 7-1.16)

Amending or revoking a revocable trust

Under 7-1.17(b), "Any amendment or revocation authorized by the trust shall be in writing and executed by the person authorized to amend or revoke the trust, and except as otherwise provided in the governing instrument, shall be acknowledged or witnessed in the manner required by paragraph (a) of this section, and shall take effect as of the date of such execution." As quoted above, 7-1.16 adds a second route: an express direction in the creator's will that specifically refers to the trust or a particular provision of it.

Any trust, revocable or not, can also be changed with the consent of everyone beneficially interested. Under 7-1.9(a), upon the written consent of "all the persons beneficially interested in a trust of property," acknowledged or proved in the manner required for recording a conveyance of real property, the creator "may revoke or amend the whole or any part thereof by an instrument in writing acknowledged or proved in like manner."

Funding: a trust holds only what is transferred to it

Section 7-1.18 provides that "A lifetime trust shall be valid as to any assets therein to the extent the assets have been transferred to the trust." A recital in the trust instrument is not a transfer. Where the creator is the sole trustee, transfer means, for assets capable of registration "such as real estate, stocks, bonds, bank and brokerage accounts and the like, the recording of the deed or the completion of registration of the asset in the name of the trust or trustee, and in the case of other assets a written assignment describing the asset with particularity."

Creator as trustee and beneficiary

Under 7-1.1, a trust is not merged or invalid because the creator "is or may become the sole trustee and the sole holder of the present beneficial interest therein, provided that one or more other persons hold a beneficial interest therein," whether that interest is vested or contingent, present or future.

Creditors

Section 7-3.1(a) provides: "A disposition in trust for the use of the creator is void as against the existing or subsequent creditors of the creator." Under 7-3.1(b), trusts and other assets established as part of an individual retirement account qualified under Internal Revenue Code section 408 or 408A, or a Keogh (HR-10), retirement or other plan qualified under section 401, are not treated as a disposition in trust for the use of the creator and are conclusively presumed to be spendthrift trusts. Additions to those assets made after the date 90 days before the claim was interposed, or that are voidable transactions under article ten of the Debtor and Creditor Law, are not exempt from a money judgment (7-3.1(b)(4)).

Pour-over wills

A will can leave property to the trustee of a trust under EPTL 3-3.7(a), "regardless of whether any assets have been transferred to the trust prior to the death of the testator," but only if the trust instrument "is identified in the will and is executed by the person establishing the trust prior to or contemporaneously with the execution of the will and, unless such person is the sole trustee, by at least one trustee thereof prior to the death of the testator, in the manner required by the laws of this state for the recording of a conveyance of real property or, in lieu thereof, in the presence of two witnesses who shall affix their signatures to the trust instrument."

The gift is fragile if the trust ends first: "A revocation or termination of the trust before the death of the testator shall cause the disposition or appointment to fail, unless the testator has made an alternative disposition" (3-3.7(e)).

New York wills and trusts at a glance

Recent and future changes

• Electronic wills (enacted 2025, amended 2026, effective December 12, 2027). Chapter 637 of the Laws of 2025 (signed December 12, 2025) adds EPTL 3-6.1 through 3-6.9 on electronic wills and a carve-out in 3-2.1 for them; chapter 89 of the Laws of 2026 (signed February 13, 2026) set the effective date at two years after enactment. The official text marks the new sections "Effective December 12, 2027." The signing rules described above remain the law until then.

Making a will in practice

The site's free New York will-maker tool can help draft a basic will. Whatever produces the document, it is valid only if it is signed and attested as EPTL 3-2.1 requires, including the declaration to each witness and the 30-day window, and a lifetime trust must meet the acknowledgment-or-witness rule in 7-1.17. Complex estates, blended families, business interests or tax questions are reasons to consult a lawyer licensed in New York. The tool is not legal advice.

Members of the armed forces also have a federal option: under 10 U.S.C. 1044d, a military testamentary instrument is exempt from state formalities and has the same legal effect as a will executed under the law of the state where it is presented for probate (see the wills and trusts hub for the federal layer).

Related pages

• Wills and trusts laws by state
• New York probate
• New York small estate affidavit
• New York power of attorney laws

This article provides general legal information about New York law on wills and lifetime trusts as of 2026-10-19. It is not legal advice. For advice about a specific situation, contact a lawyer licensed in New York or the Surrogate's Court in your county.

Last updated: 2026-10-19.

Frequently Asked Questions

How many witnesses does a will need in New York?

At least two. Under EPTL 3-2.1, the testator signs in each witness's presence or acknowledges the signature to each, declares to each that the instrument is his or her will, and both witnesses attest and sign at the end within one 30-day period, at the testator's request.

Does a will have to be notarized in New York?

No. EPTL 3-2.1 requires attesting witnesses, not a notary. Under SCPA 1406, the witnesses may make an affidavit before any officer authorized to administer oaths (a notary is one), which the court accepts as testimony unless a party objects or the court requires the witnesses to appear.

Is a handwritten will valid in New York?

Only for a member of the U.S. armed forces in actual service during a war or armed conflict, a person serving with or accompanying such a force, or a mariner at sea (EPTL 3-2.2), and such a will expires one year after discharge or leaving the force, or three years after it was made at sea. Separately, a will in writing and signed by the testator is formally valid if executed under the law of the place where it was signed or of the testator's domicile at signing or at death (3-5.1(c)), so a signed handwritten will valid under one of those laws can qualify. Otherwise, a will made under New York law must be signed and attested under 3-2.1.

Are oral wills valid in New York?

Only for the same military and mariner categories under EPTL 3-2.2, and they expire on the same schedule. For everyone else, 3-2.1 requires every will to be in writing, so an oral will is not valid.

Can I make an electronic will in New York?

Not yet. The electronic-will sections added by chapter 637 of the Laws of 2025, as amended by chapter 89 of the Laws of 2026 (EPTL 3-6.1 to 3-6.9), take effect December 12, 2027. Until then a will must be a written instrument signed and attested under EPTL 3-2.1.

Does divorce revoke a will in New York?

Divorce does not revoke the whole will. Under EPTL 5-1.4, a divorce, annulment or judicial separation rendered against the spouse revokes revocable dispositions and appointments to the former spouse, in a will and in other instruments such as a revocable trust or a life insurance designation, unless the governing instrument expressly provides otherwise; the former spouse is treated as having predeceased, and remarriage to the same person revives them. For ERISA employer plans, federal law pre-empts such a rule (Egelhoff v. Egelhoff, 532 U.S. 141 (2001)).

Is a living trust revocable in New York?

Only if it says so. Under EPTL 7-1.16, a lifetime trust is irrevocable unless it expressly provides that it is revocable. A revocable lifetime trust can be amended or revoked by a signed writing acknowledged or witnessed like the trust itself, unless the trust instrument provides otherwise (7-1.17(b)), or by an express direction in the creator's will that specifically refers to the trust or a provision of it (7-1.16).

Does a living trust need to be notarized in New York?

It must be either acknowledged in the manner required for recording a deed or signed in the presence of two witnesses who sign the trust instrument (EPTL 7-1.17(a)). Unless the creator is the sole trustee, at least one trustee must also sign it with the same formality.

Can a spouse be left out of a will in New York?

A surviving spouse may elect the greater of $50,000 (or the whole net estate if it is smaller) or one third of the net estate, and the net estate includes property in a trust the decedent could revoke (EPTL 5-1.1-A). The election must be made within six months after letters issue and no later than two years after death, although the Surrogate's Court may extend the time before it runs out, by up to six months per application, and may relieve a spouse from a default in limited circumstances (5-1.1-A(d)(2)).