News & Insights


A handwritten (or holographic) will is not enforceable in all states. However, in certain circumstances, the will may still be probated in a state which does not recognize handwritten wills provided certain requirements are met. A recent New York appellate court decision addressed this issue in the Matter of Noichl.  

In states that recognize holographic wills, there is no requirement that the will be witnessed or notarized. However, the will must be written in the decedent’s own hand and signed by the decedent. Further, the decedent must have the requisite mental capacity to execute a will and cannot have been unduly influenced by any other individual in making the will.  

New York does not recognize handwritten wills (other than in the case of an active member of the U.S. armed forces during a time of conflict). However, a holographic will which was valid in the jurisdiction where the non-New York resident was domiciled can be the basis for an ancillary proceeding in New York if the decedent owned real property in the state. An ancillary probate proceeding is filed when the will has been admitted to probate in a state other than New York because the decedent was domiciled in that other state but owned real estate in New York. The purpose is to have someone appointed in New York who can sign a deed transferring the real estate to the decedent’s beneficiaries as set forth in the will. In order to file an ancillary proceeding, New York law requires that the will be admitted to probate in the state where the decedent was domiciled. Note that if there is no will but the decedent died a domiciliary of another state with property in New York, the proceeding is called an ancillary administration. The law allowing an ancillary proceeding for a handwritten will is illustrated in the Noichl case.

Noichl involved a decedent who died while residing in Germany but owned property in New York, New Jersey and Florida, among other states. At the time of his death in 2016, the decedent was married to a woman in New Jersey where he had been domiciled prior to leaving the United States in 2014. The decedent’s sister sought to probate a holographic will in New York which the decedent had written in Florida. A dispute arose with the decedent’s wife over whether the decedent was domiciled in Germany, New Jersey or New York. The decedent had made handwritten wills in Germany and Florida. 

Ultimately, the New York Surrogate’s Court determined that the decedent was domiciled in New Jersey. As a result, New York could not permit the ancillary probate of the Florida holographic will because it was not valid under New Jersey law. The decedent’s sister appealed that decision. 

The appeals court disagreed with the Surrogate’s Court and found that the record was incomplete. The Court, therefore, remanded the matter and directed that a hearing with witnesses should be held by the Surrogate to determine where the decedent was domiciled. Once the question of domicile was resolved, the Surrogate would be able to decide whether the handwritten will was valid in that jurisdiction and whether the ancillary probate proceeding could proceed in New York.  

What this decision seems to stand for is that if a decedent prepared a holographic will, it will be considered enforceable in a state which does not generally permit such wills if the will complied with the requirements of the state of the decedent’s domicile. Accordingly, although New York does not allow probate of a holographic will made in New York, it does permit an ancillary probate as long as the will was valid in the state or jurisdiction where the decedent was domiciled and was admitted to probate in that state. 

If you would like to avoid these types of issues, contact one of our estate attorneys to discuss your estate plan and help ensure that it complies with the requirements of New York State.