New York State Adopts Electronic Wills Act Starting in 2027
A few New York State laws were enacted by Governor Kathy Hochul right before December 31, 2025. One of the most notable new laws is the authorization of electronically signing Wills for New York State residents. Before deciding that this is the right approach for you, it’s important to be aware of the requirements. If you have questions about creating and signing a Will in New York, please consider scheduling a consultation with the experienced New York estate attorneys at Abelaj Law, P.C. by calling 212-328-9568.
Effect Date of New York Electronic Wills Act
The New York Electronic Wills Act was signed into law on December 12, 2025, and takes effect on June 10, 2027. Some provisions are based on existing law, such as the timing of witnesses signing the Will, and other provisions are newly created, such as required court filings.
The electronic Will must contain audit trail data, which likely means that an e-signing platform such as Adobe Sign, Docusign or a similar program must be used. The result is that the signers would not be able to insert a type-form “cursive” signature if there is not audit trail.
The witnesses must be domiciled in one of the fifty United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, any territory subject to the jurisdiction of the United States, or as part of a federally recognized Indian Tribe. In other words, the Will cannot be witnessed by an individual who is domiciled in another country.
Electronic Signing by Testator and Witnesses
Under current law, a testator may sign their Will, with or without the witnesses present, provided the testator declares to the witnesses, and the witnesses sign, the Will within 30 days after the Testator signs the Will. The Electronic Wills Act adopts this same approach to a Testator, and to the witnesses, who sign the Will in person or electronically. This is a two-pronged consideration.
First, the testator can sign the Will in person or electronically. Next, the witnesses can do the same thing, meaning they can witness the signing, or declaration of signing, either in person or electronically. In any of these combinations, provided the witnesses sign within 30 days of the testator’s signature, the Will is validly signed under the Electronic Wills Act.
Will May be Self-Proven Electronically
Under current law, Wills can be self-proven if the witnesses acknowledge in a signed writing within 30 days of signing, usually via a notarized affidavit, that they were witnesses to the Will. For most testators, this Affidavit is usually signed by the witnesses and notarized during the Will signing meeting. This important document is provided to the Surrogate’s Court when the Will is probated.
As background, if a Will does not include a self-proving affidavit, the original Will (and not a copy) must be provided to the witnesses after the decedent’s death at which time they will sign and notarize an affidavit after death providing that they were the witnesses to the Will. As you might imagine, this creates extensive cost and delay to the Estate as the witnesses must be located and the original Will must be presented to each witness, at which time the witness must arrange for a notary to notarize the affidavit.
The Electronic Wills Act anticipated this challenge and specifically provided that the Wills may be self-proven electronically as well. This will require that a notary also be present for the electronic signing of the Will.
Prompt Filing with Surrogate’s Court Required
Once the Will is fully executed by the testator and the witnesses, the law provides that the original document MUST be filed electronically with the local New York Surrogate’s Court within 30 days of execution. Failure to do this will automatically invalidate the Will. The Will may be filed by the testator or an authorized representative.
Testators have long had the ability to file their Wills prior to death. Under current law, if a testator executes a new Will after the prior one was filed, but the prior one was not removed from the Court before the testator’s death, the individuals in the prior Will who were adversely affected must receive notice and may have the right to object to the new Will. For this reason, many testators do not file their original Wills with the Court. They retain control over the final Will that is ultimately filed upon their death and probated.
The new law may result in many situations in which individuals have a right to object to a prior electronically filed Will if a new Will was executed and they were adversely affected in the new Will. In addition, both Wills would become public record at the time of death.
Revocation of Electronically Signed Will Filed in Surrogate’s Court
Removal by the testator or an authorized person of the electronically signed Will from the Surrogate’s Court will automatically revoke the Will. In addition, executing a new Will revoking the electronically signed Will or filing a new electronically signed Will with the Surrogate’s Court will revoke the Will on file.
Language required to be included in Will
An electronically signed Will MUST include the following language for it to be valid, in twelve-point font or larger, boldface and double-spaced:
CAUTION TO THE TESTATOR: YOUR WILL IS AN IMPORTANT DOCUMENT. AS TESTATOR, YOUR WILL SHOULD REFLECT YOUR FINAL WISHES. TO BE VALID, IT MUST BE SIGNED BY YOU OR ANOTHER INDIVIDUAL AUTHORIZED BY YOU AND WHO IS IN YOUR PHYSICAL PRESENCE AT THE TIME OF SIGNING. IT MUST ALSO BE SIGNED IN YOUR PHYSICAL OR ELECTRONIC PRESENCE BY AT LEAST TWO INDIVIDUALS, EACH OF WHOM IS A DOMICILIARY OF A STATE, AND EACH OF WHOM SIGNS THE WILL WITHIN A THIRTY DAY PERIOD AFTER WITNESSING YOU SIGN THE WILL OR ACKNOWLEDGE THAT YOU SIGNED IT.
WITHIN THIRTY DAYS AFTER THE ELECTRONIC WILL IS EXECUTED, IT MUST BE ELECTRONICALLY FILED WITH THE NEW YORK STATE UNIFIED COURT SYSTEM. YOU MAY REVOKE YOUR ELECTRONIC WILL AT ANY TIME. YOU MAY DO SO BY EXECUTING A SUBSEQUENT WILL OR SEPARATE WRITING CLEARLY INDICATING YOUR INTENT TO REVOKE ALL OR PART OF YOUR ELECTRONIC WILL, OR BY REQUESTING ITS REMOVAL FROM THE NEW YORK STATE UNIFIED COURT SYSTEM. ONCE YOU HAVE REMOVED YOUR ELECTRONIC WILL FROM THE NEW YORK STATE UNIFIED COURT SYSTEM, IT IS REVOKED.
Before Deciding to Electronically Sign Your New York State Will
The New York State Electronic Wills Act is a great step forward in meeting the digital reality in which we currently live. This will create options for testators who might be immobile or have difficulty in attending a live signing.
However, being aware of the logistical arrangement, filing requirements, and potential for adversely affected individuals to object to a Will may impact your decision on whether this is the ideal approach for you.
Talk with an Experienced Estate Planning Attorney
If you are considering estate planning, legal guidance may be beneficial. An experienced estate planning lawyer can make sure all documents are in order and help individuals determine the signing method that would best fit their needs. Consider visiting with the estate planning lawyers at Abelaj Law, P.C. at 212-328-9568 to learn more about how to determine whether electronically signing your Will is right for you.
Deadline for Registering with FinCEN Delayed Following Preliminary Injunction
Court Decision Provides Temporary Reprieve on Filing
On December 3, 2024, the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction against enforcement of the Corporate Transparency Act (“CTA”) in Texas Top Cop Shop, Inc. vs. Garland, No. 4:24-CV-478 (E.D. Texas 12/3/24).
There has been much news about the deadline to comply with United States Financial Crimes Enforcement Network (“FinCEN”) rules by December 31, 2024.
As a recap, in accordance with the CTA, newly formed (or registered) corporate entities in the United States were required to submit a Beneficial Owner Report (“BOI”) to FinCEN if the corporate entity met the “Reporting Company” definition (and if it does not qualify for exemption). A Reporting Company includes corporations, limited liability companies, or other entities which are created by filing or registering a certificate of creation with a state department.
However, in light of the federal court order issued on December 3, 2024, Reporting Companies will not be required to file a BOI report with FinCEN and are not subject to liability if they fail to do so while the order remains in force. Submission of the BOI report for a Reporting Company is now being accepted on a voluntary basis.
Reporting is Optional Pending Further Action by Courts
FinCEN has issued an alert that reporting is optional following the Court Decision. A Reporting Company is not required to submit a BOI report with FinCEN while the preliminary injunction is in place. With the preliminary injunction in place, this means that a Reporting Company has two options:
1.) Voluntarily file a BOI Report with FinCEN; or
2.) Postpone filing a BOI report for now, pending further action by courts with jurisdiction over this matter.
The federal court order also stayed the impending January 1, 2025, compliance deadline for Reporting Companies created prior to January 1, 2024.
Considerations on Whether to Delay Filing
Compliance with FinCEN has created confusion and concern for Reporting Companies. In particular, if Trust has an interest in a Reporting Company, additional details must be analyzed to determine the appropriate reporting on the beneficial owners.
They delay may provide a reprieve to making such analysis, but not without risk. If you choose to delay reporting, a future decision which validates the CTA may leave little time for a reporting company to comply in a timely manner. This may create the risk of being subject to the $500 daily fine for failure to report.
In addition, if any changes are made to ownership between the date of the decision and the reactivation of the CTA, it’s possible that all changes in ownership may have to be reported. If you choose to delay reporting, it may be prudent to keep a detailed log of ownership changes, including dates, parties and ownership shares.
Contact Us For Assistance
Abelaj Law, PC is monitoring the ongoing litigation of the CTA. Please note that this federal court ruling most likely is not the affirmative final determination on the constitutionality of the CTA and further litigation is pending on this issue. Contact our experienced legal team today at 212-328-9568 to learn more.
Federal and New York State Corporate Transparency Act; Act Now!
The Corporate Transparency Act (“CTA”) is effective January 1, 2024. FinCEN now requires that all LLCs, corporations, limited partnerships, or other similar businesses file information about the company’s beneficial owners. Unless an exception applies (such as for non-profits or large organizations as defined in the Act), existing companies must file no later than December 31, 2024.
In addition, New York State has also passed a similar corporate transparency act, which takes effect on December 21, 2024.
Registration
The portal to register your company’s beneficial ownership information is currently live and may be accessed using this link ➡️ https://boiefiling.fincen.gov/
At this time, we are directly reaching out to companies whom we have personally represented at initial creation.
If you require assistance with filing your FinCEN report, please contact us by February 15, 2024. If we do not hear from you by this date, we will assume that you do not require our assistance to comply with the requirements.
The penalties for failure to timely file a complete report are steep, starting at $500 per day that the filing is late, plus criminal penalties.
Learn More
If you would like to learn more about the CTA, please refer to our prior newsletters below:
January 2024 Bulletin: FinCEN Access to Private Information
Corporate Transparency Act Authorizes Access to Government and Financial Institutions
The United States Department of the Treasury along with the Financial Crimes Network (FinCEN) implemented the Corporate Transparency Act in an effort to track illicit finances that funds drug trades, fraud, terrorism, and other crimes that enhance corporate transparency. The procedures for compliance and access to information are governed by three separate FinCEN rules: the Reporting Rule, the Access Rule and the future Customer Due Diligence Rule.
The purpose of the Access Rule is to protect the information submitted to FinCEN by a Reporting Company.
Reporting of Beneficial Owner Information Now Active
The “Reporting Rule” is effective January 1, 2024, and requires certain corporations, LLCs, partnerships and similar entities must report the name, address and ownership interest of their beneficial owners. The Beneficial Ownership Information (BOI) will be managed by FinCEN and access to this information will follow certain guidelines.
Who and When: Filing of Initial Beneficial Ownership Information Deadlines
The FinCEN technology portal for a Reporting Company to report BOI is currently active as of January 1, 2024. The portal will collect, process and store the BOI for use by the government and other interested parties, as described below.
Entities created prior to January 1, 2024 must file their BOI information via the FinCEN portal by January 1, 2025. Entities formed after January 1, 2024 must file their initial BOI within ninety days of formation.
Who Can Access the Portal and BOI Information?
In a news release on December 21, 2023, FinCEN discussed the “Access Rule,” which governs the protection of BOI information submitted to FinCEN. This rule outlines who has access to the BOI portal and how other individuals may obtain BOI information. The Access rule is currently set to be effective on February 20, 2024, at which time eligible institutions will be allowed access to the portal. Only authorized recipients will have access to BOI and the information may only be used for authorized purposes.
Direct Access to Beneficial Owner Information on FinCEN Portal
The following authorized domestic government agencies and financial institutions have direct access to search and view FinCEN’s BOI information using the portal:
- Federal agencies working in national security, intelligence, or law enforcement activity;
- State, local and tribal agencies;
- Foreign law enforcement agencies, judges, prosecutors and other authorities that meet other specified criteria;
- Financial institutions with customer due diligence requirements;
- Regulators supervising institutions;
- Treasury Department Officers and employees.
Foreign requesters do not have direct access to the FinCEN portal. Instead, they must make a request for information directly to FinCEN.
Type of Access Allowed Based on Category of Requester
The Corporate Transaction Act (CTA) lists requirements for each of the categories and are subject to security and confidentiality of the BOI. A summary of key requesters is included below.
Domestic Agencies: Direct Access, Reporting Company Consent Not Required
Domestic agencies requesting access to the Reporting System must establish and maintain a secure system for accessing and maintaining information received from FinCEN and must comply with specific security protections prior to obtaining access.
State, local and tribal agencies and tribunals, as well as law enforcement, will have access to BOI upon certifying that they have court authorization to receive BOI from FinCEN, without providing supporting documentation.
Financial Institutions: Direct Access, Reporting Company Consent Required
Financial institutions may satisfy the security standard by using the same security and information handling procedures that they use to comply with existing regulations (i.e., the Gramm-Leach Bliley Act or they must develop and implement administrative, technical, and physical safeguards reasonably designed to protect the information and provide written consent from the Reporting Company that the Financial Institution may conduct the search.
Financial institutions are authorized to use the information obtained for purposes beyond CTA. This includes compliance with Anti-Money Laundering, Office of Foreign Assets Control or other know-your-client (KYC) processes.
If a foreign government contacts a domestic financial institution requesting BOI information, the domestic financial institution must notify FinCEN within three days of receiving the request.
Foreign Requesters: No Direct Access
Foreign entities will not have direct access to the portal. They must request the information directly through FinCEN. If an international treaty, agreement or convention applies to the foreign entity, it must comply with all applicable rules.
Foreign requesters of BOI that are not governed by a treaty or convention must establish standards and procedures to protect the security and confidentiality of BOI, maintain the BOI in a secure system, and restrict access to the information, among other requirements.
Authorization to Redisclose BOI Information and Illegal Sharing
Recipients of BOI information are authorized to redisclose the information received for internal purposes, such as among officers within the same agency, to parties in a civil or criminal court proceeding, or foreign authorities consistent with an international treaty or convention under which the BOI was received.
FinCEN also can authorize the disclosure of BOI to an authorized recipient under a circumstance where there is an authorized purpose for the redisclosure.
Significant Penalties for Illegally Disclosing BOI
Violations of these rules and knowing disclosure of BOI and knowingly used in an unauthorized manner has both civil and criminal penalties attached to it. Civil penalties are in the amount of $500.00 daily if the violation continues. Criminal penalties are a fine in the amount of $250,000.00 and imprisonment for up to five years.
Institutions that violate this can be suspended or disbarred from the BOI IT system.
Compliance and Next Steps
These rules might continue to evolve as the CTA rolls out in the coming year. FinCEN will publish forms on its website for comments. Later this year, FinCEN will provide guidance on the Customer Due Diligence Rules governing ongoing compliance reporting
changes to beneficial owners.
Contact Us for Assistance
If you have any questions on the CTA or how it may apply to your small business, please contact our office at 212-328-9568 or via email at assistant@abelajlaw.com.
If we do not hear from you by February 15, 2024, we will assume that you do need our assistance with the CTA.
December 2023 Bulletin: New Law
Corporate Transparency Act Creates Trap for Unwary
Starting January 1, 2024, small corporations, LLCs, and similar entities are required to report beneficial ownership information to the Treasury’s Financial Crime Enforcement Network (FinCEN). The penalty for failure to file is up to two years in prison and $10,000. The deciding factor appears to be if the entity was created by filing a document with the secretary of state or similar office. If so and no exception applies, the FinCEN filing is mandatory.
Exceptions and Trusts
The current exceptions are not-for-profit organizations and trusts which were not created by filing a document with the secretary of state. However, if your trust owns an interest in an LLC, corporation, family limited partnership or other reportable entity, then the entity must reflect the beneficial owner as the trust.
Beneficial Ownership
Determining who is a beneficial owner can be difficult. A beneficial owner is any individual who directly or indirectly exercises substantial control over the company or who owns or controls 25 percent or more of the company. Substantial control is broadly defined to include senior officers, those who have the ability to appoint or remove senior officers or a majority of the board of directors, those who have substantial influence over important decisions, and (the catch-all) those who have any other form of substantial control over the company.
Reporting Requirements
A reporting company must provide (1) its legal name and any trade name or DBA, (2) its address, (3) the jurisdiction in which it was formed or first registered, and (4) its Taxpayer Identification Number (TIN).
For each of the company’s beneficial owners, the company will need to provide the individual’s (1) legal name, (2) birthdate, (3) address, and (4) an identifying number from a driver’s license, passport, or other approved document for each individual, and an image of the document that the number is from. That’s right. They want a copy of your driver’s license or passport.
Filing Deadlines
Companies created or registered before January 1, 2024, must file by January 1, 2025. Companies created or registered after December 31, 2023, must file within 90 calendar days of formation. FinCEN will accept reports electronically beginning January 1, 2024. Final forms are still in the making.
Ongoing Reporting
This is not just a one-time reporting requirement. A company will have 30 days to report any changes to reported information—i.e., any changes in beneficial ownership. For updates, the 30 days start from when the relevant change occurs. For corrections, the 30 days start after becoming aware of—or having reason to know of—an inaccuracy in a prior report. There are no safe harbors for filing an incorrect report.
The government expects over 32 million initial reports to be filed at an estimated cost of about 22 billion dollars; and then 2 billion dollars in additional cost each year for updated reports. In my opinion, the government’s cost estimate is ridiculously optimistic because the rules are complex.
Contact Us for Assistance
If you would like help in determining if a filing is required and then filing the required report in 2024, please contact our office at 212-328-9568 or via email at assistant@abelajlaw.com.