Estate Planning Attorneys in New York
Estate planning in New York means deciding, in writing and in advance, who will manage your affairs if you cannot, who will receive your property when you die, and how that transfer will happen with the least cost, delay, and tax. For most New Yorkers the plan is built from a small set of documents: a will, often a revocable living trust, a statutory short form power of attorney, and a health care proxy. The right combination depends on your family, what you own, where it is located, and the size of your estate measured against New York’s estate tax exclusion.
Milvidskiy Law Group P.C. prepares estate plans for individuals and families across New York State from our office in Tarrytown, in Westchester County, and by video and phone. We help New York clients coordinate an estate plan with property and family interests in other states. When another state’s law or local work is involved, we identify the additional legal assistance needed. This page explains how estate planning works under New York law, what the core documents do, and where New York rules differ from what you may have read about other states.
Key Takeaways:
- A complete New York estate plan usually includes a will, a power of attorney, a health care proxy, and often a revocable living trust to help avoid Surrogate’s Court probate.
- New York has its own estate tax with a basic exclusion amount of $7,350,000 for 2026 and a “cliff” that can tax the entire estate once it exceeds the exclusion by more than 5 percent.
- New York has no gift tax, but taxable gifts made within three years of death are added back when the New York estate tax is calculated.
- Without a will, New York’s intestacy statute decides who inherits, and a surviving spouse with children receives only the first $50,000 plus half of the rest.
What Happens Without a Plan in New York
If you die without a will, New York’s Estates, Powers and Trusts Law decides who inherits. Under the intestacy statute as currently written, a surviving spouse with children receives the first $50,000 of the estate plus one half of the balance, and the children share the other half. A spouse with no children takes everything. Children with no surviving spouse take everything. If there are no spouse or children, the estate passes to parents, then to siblings and their descendants, and then to more distant relatives. The statute ignores stepchildren, unmarried partners, and friends, and it does not let you choose who will raise minor children.
Without a power of attorney or health care proxy, a family member who needs authority to manage your finances or make medical decisions during incapacity may have to petition the Supreme Court for a guardian under Article 81 of the Mental Hygiene Law. That proceeding is public, takes time, and is more burdensome for the family than signing the documents in advance.
The Core Documents of a New York Estate Plan
Last Will and Testament
A will names an executor, directs how probate assets pass, and, for parents of minor children, nominates a guardian. New York’s formal execution requirements are strict. Under the Estates, Powers and Trusts Law, the will must be signed at the end by the testator, the testator must declare to the witnesses that the document is his or her will, and at least two attesting witnesses must sign and add their addresses within a thirty-day period. Our team coordinates the signing and the witnesses’ self-proving affidavit to help document compliance with New York’s execution requirements. Even if you use a living trust, you still need a will, typically a “pour-over” will that directs any assets left outside the trust into it. New York law expressly permits a will to pour over into a lifetime trust that was signed before or at the same time as the will.
Revocable Living Trust
A revocable living trust holds title to your assets during life and, if properly funded, generally passes them at death without probate. You usually serve as your own trustee, keep full control, and name a successor trustee to step in on incapacity or death. New York requires a lifetime trust to be in writing and either acknowledged before a notary in the same manner as a deed or signed in the presence of two witnesses. A trust only controls assets that have actually been transferred into it, so deeds, account retitling, and beneficiary designations are as important as the trust document itself. Our Living Trusts in New York page covers when a trust makes sense and when a will alone is enough.
Statutory Short Form Power of Attorney
New York’s General Obligations Law provides a statutory short form power of attorney that banks and financial institutions in the state are accustomed to accepting. The current form must be signed before a notary and in the presence of two witnesses, and the agent signs an acknowledgment of duties. Gifting authority, authority over retirement accounts, and authority to plan for Medicaid should be addressed in the modifications section rather than assumed. See our Power of Attorney page for a fuller discussion.
Health Care Proxy and Living Will
The New York health care proxy, authorized by the Public Health Law, appoints an agent to make medical decisions when you cannot. It must be signed and dated in the presence of two adult witnesses, and the agent may not be a witness. A living will states your wishes about life-sustaining treatment and guides your agent. A HIPAA authorization lets your agent and family obtain medical information. Together these documents are designed to keep medical decisions with the people you chose rather than with a court.
New York Estate Tax: The Exclusion and the Cliff
New York is one of a minority of states that impose their own estate tax. For deaths in 2026, the New York basic exclusion amount is $7,350,000. The federal exclusion for 2026 is $15,000,000, so many New York estates owe no federal tax but still face a New York return and possible New York tax. Both figures change, and the New York figure is indexed to inflation each year.
The New York tax has an unusual feature often called the cliff. Once a taxable estate exceeds the exclusion amount, the credit that shelters the exclusion phases out quickly, and if the taxable estate exceeds 105 percent of the exclusion, the credit disappears entirely and the whole estate, not just the excess, is taxed. For 2026 that means an estate above roughly $7.72 million is taxed from the first dollar at graduated rates that reach 16 percent. Planning near the threshold, such as a charitable bequest, can make a significant difference in the tax result.
New York has no gift tax; the state gift tax was repealed for gifts made on or after January 1, 2000. Lifetime gifts remain a central New York planning tool because they reduce the taxable estate. There is a catch: taxable gifts made within three years of death are added back to the New York gross estate for deaths before January 1, 2032, unless the gift was real or tangible property located outside New York or was made while the donor was not a New York resident. Gifts should be planned early rather than at the last moment.
New York’s tax is an estate tax, paid by the estate before distribution, rather than an inheritance tax charged to the beneficiaries. The New York estate tax return and payment are due nine months after death.
Married Couples and the Right of Election
New York generally does not allow you to disinherit a spouse without his or her consent. Under the Estates, Powers and Trusts Law, a surviving spouse may elect to take the greater of $50,000 or one third of the net estate, and the calculation reaches “testamentary substitutes” such as revocable trust assets, joint accounts, and certain retirement benefits. A prenuptial or postnuptial agreement with a valid waiver is the usual way to plan around the elective share in second marriages and blended families.
New York law does not include the federal “portability” election that lets a surviving spouse use a deceased spouse’s unused exclusion. A plan that leaves everything outright to the surviving spouse can waste the first spouse’s $7,350,000 exclusion. Credit shelter trusts and New York qualified terminable interest property elections can preserve both exclusions and are worth considering for couples whose combined estate approaches the New York threshold.
Property Outside New York
Real estate in another state passes under that state’s law and normally requires a second probate proceeding there. Conversely, an out-of-state resident who owns a New York home or apartment faces ancillary probate in the New York Surrogate’s Court, and New York taxes the real and tangible property of nonresidents located here. Titling out-of-state property in a revocable trust can avoid a second probate. We help New York clients coordinate an estate plan with property and family interests in other states. When another state’s law or local work is involved, we identify the additional legal assistance needed. Our Ancillary Probate in New York page explains the process for nonresidents.
Planning for Long-Term Care
An estate plan that distributes assets at death does nothing to protect them from the cost of nursing home or home care during life. Many New York families pair a traditional estate plan with a Medicaid asset protection trust and a power of attorney drafted with Medicaid in mind. The earlier that planning starts, the more options remain. See Medicaid Planning in New York.
How We Work With New York Clients
We begin with a conversation about your family, your assets, and your concerns, not with a form. We then recommend documents and, where useful, a trust structure, and explain the New York tax and probate consequences of each choice in plain terms. Our team coordinates signing with the required witnesses and notarization, and explains the funding steps and beneficiary designations on which the plan depends. Existing plans, including documents signed in other states, are reviewed for compliance with New York law.
We serve clients throughout New York State from our Tarrytown office in Westchester County, and by video conference and phone. To discuss your estate plan with a New York estate planning attorney, please contact us to schedule a consultation.
This page is provided for general informational purposes only and does not constitute legal advice. Laws change and figures are adjusted periodically. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
Do I need a will if I live in New York and own very little?
Yes. A will names the executor and, for parents, the guardian of minor children, and it overrides New York’s intestacy statute, which would otherwise decide who inherits. If your estate consists mainly of personal property of $50,000 or less, your family may be able to use New York’s simplified voluntary administration procedure in the Surrogate’s Court, but a will still controls who receives the property.
What are the signing requirements for a will in New York?
Under New York’s Estates, Powers and Trusts Law, you must sign at the end of the will, declare to your witnesses that the document is your will, and have at least two attesting witnesses sign and add their addresses within a thirty-day period. Our team coordinates signing and has the witnesses sign a self-proving affidavit so that the will can generally be admitted to probate without calling them to testify.
How much can I leave before New York estate tax applies?
For deaths in 2026, the New York basic exclusion amount is $7,350,000. Estates below that figure generally owe no New York estate tax, although taxable gifts made within three years of death are added back in the calculation. Once a taxable estate exceeds 105 percent of the exclusion, the exclusion is lost entirely and the whole estate is taxed at graduated rates up to 16 percent. The exclusion is adjusted each year, so check the current figure with your attorney.
Does New York have a gift tax or an inheritance tax?
No. New York repealed its gift tax for gifts made on or after January 1, 2000, and it does not impose an inheritance tax on the people who receive property. New York does add back taxable gifts made within three years of death when computing the estate tax for deaths before 2032, so gifts intended to reduce the taxable estate should be made well in advance.
Can I disinherit my spouse in New York?
Not without your spouse’s written agreement. New York gives a surviving spouse the right to elect to take the greater of $50,000 or one third of the net estate, and that calculation includes testamentary substitutes such as revocable trust assets and joint accounts. Couples who want a different result sign a prenuptial or postnuptial agreement that waives the right of election.
What is the difference between a power of attorney and a health care proxy in New York?
A New York statutory short form power of attorney authorizes your agent to handle financial and legal matters. A health care proxy authorizes your agent to make medical decisions when you cannot. They are separate documents with separate signing rules: the power of attorney is notarized and witnessed by two people, and the health care proxy is signed before two adult witnesses. Many clients sign both, together with a living will and a HIPAA authorization.
What happens if I become incapacitated without these documents?
Someone in your family would need to petition the Supreme Court for the appointment of a guardian under Article 81 of the Mental Hygiene Law. The court appoints an evaluator, holds a hearing, and supervises the guardian through annual reports. The process is public and costly, and the court, not you, chooses who serves. A power of attorney and health care proxy signed in advance are designed to avoid it.
I own a home in another state. How does that affect my New York plan?
Real estate in another state normally requires a separate probate proceeding in that state after your death. Holding the property in a revocable trust can avoid the second proceeding. We help New York clients coordinate an estate plan with property and family interests in other states. When another state’s law or local work is involved, we identify the additional legal assistance needed.
Do married couples in New York need trusts to save estate tax?
Often, yes, once the combined estate approaches the New York exclusion. New York does not offer the portability of a deceased spouse’s unused exclusion that federal law provides, so leaving everything outright to the survivor can waste the first spouse’s exclusion. A credit shelter trust or a New York qualified terminable interest property election can preserve both exclusions.
How often should a New York estate plan be reviewed?
Review the plan after any major life event, such as a marriage, divorce, birth, death, move to or from New York, or significant change in assets, and in any case every few years. The New York exclusion amount changes annually, the federal exclusion has changed several times, and execution rules for powers of attorney have been revised, so older documents may no longer accomplish what you intended.
