Most estate plans fail not because the law is mysterious, but because the documents were drafted, signed, or coordinated incorrectly — and no one notices until it is too late to fix. As New York estate planning specialists, Morgan Legal Group built this FAQ to give you precise, statute-grounded answers so your plan works the first time, in any New York jurisdiction: NYC, Long Island, Westchester, the Hudson Valley, and Upstate.
For a guided walkthrough of how the pieces fit together, start with our Estate Planning Overview and our New York statewide guide. When you are ready, attorney Russel Morgan, Esq. offers a focused consultation: schedule here.
The Four Documents Every Complete NY Plan Needs
A comprehensive New York estate plan is not a single will — it is four coordinated instruments working together. Drafting one without the others is the most common (and most expensive) mistake we correct.
| Document | Governing NY Law | What It Controls |
|---|---|---|
| Last Will & Testament | EPTL §3-2.1 | Who inherits; who serves as executor; guardians for minors |
| Trust(s) | EPTL Article 7 | Probate avoidance, tax planning, asset protection, special needs |
| Durable Power of Attorney | GOL §5-1513 | Financial & legal decisions if you are incapacitated |
| Health Care Proxy | Public Health Law Article 29-C | Medical decisions if you cannot speak for yourself |
Wills & Probate
What makes a New York will valid?
Under EPTL §3-2.1, a New York will must be signed by the testator at the end of the document, in the presence of two attesting witnesses, with proper publication (the testator declaring the document to be their will). A specialist insists on these formalities precisely because the most litigated wills are the ones where a signature was misplaced or a witness requirement was skipped. See our Wills page for the full execution checklist.
What happens if I die without a will in New York?
You die “intestate,” and EPTL Article 4 dictates who inherits — not you. The statute may direct assets to relatives you never intended to benefit, and it makes no provision for friends, partners, or charities. Intestacy also forces a court-supervised process that is slower and costlier than a properly drafted plan.
Does a will avoid probate?
No. A will is the document that goes through probate. If avoiding probate is a goal — for privacy, speed, or out-of-state property — that requires a trust, not a will. This is exactly the kind of distinction we coordinate so the two documents reinforce, rather than contradict, each other.
Trusts
Should I have a revocable living trust or an irrevocable trust?
It depends on your goal, and confusing the two is a costly error:
- A revocable living trust (EPTL Article 7) avoids probate and keeps your affairs private, but offers no estate-tax savings and no asset protection — you still control the assets.
- An irrevocable trust is the tool for tax reduction, asset protection, and Medicaid planning, but you give up control. For Medicaid eligibility, be mindful of the 5-year look-back on transfers.
Our Trusts page breaks down which structure fits which objective.
Can a trust protect a disabled beneficiary’s government benefits?
Yes. A Supplemental (Special) Needs Trust under EPTL §7-1.12 lets you provide for a loved one without disqualifying them from means-tested benefits such as Medicaid and SSI. Drafting it correctly is essential — a poorly worded trust can destroy the very benefits it was meant to preserve.
Powers of Attorney & Health Care Proxy
Is my New York power of attorney durable?
Under GOL §5-1513, a New York power of attorney is durable by default, meaning it survives your incapacity. New York overhauled the form in 2021 with a new statutory short form; older or out-of-state forms are frequently rejected by banks. A specialist review ensures your POA will actually be honored when it matters. Learn more on our Power of Attorney page.
What is the difference between a power of attorney and a health care proxy?
They are separate documents for separate domains. The durable power of attorney (GOL §5-1513) covers financial and legal matters. The health care proxy (Public Health Law Article 29-C) appoints an agent for medical decisions only. You need both — neither substitutes for the other. See our Health Care Proxy page.
The 2026 New York Estate Tax
How much can I pass tax-free in New York in 2026?
For deaths on or after January 1, 2026 through December 31, 2026, the New York basic exclusion amount is $7,350,000. New York has no gift tax — but gifts made within three years of death are added back into your taxable estate.
What is the New York estate tax “cliff,” and why does it matter?
This is the trap that ambushes the unprepared. New York does not simply tax the amount over the exclusion. If your taxable estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the ENTIRE exemption, and the estate is taxed from the first dollar. Rates are progressive, from 3% to 16%.
| 2026 NY Estate Tax Figure | Amount |
|---|---|
| Basic exclusion amount | $7,350,000 |
| Cliff threshold (105%) | $7,717,500 |
| Estate tax rate range | 3% – 16% |
| NY gift tax | None (3-year add-back applies) |
An estate landing just over the cliff can owe hundreds of thousands more than one landing just under it. Specialist planning — using trusts, charitable gifts, and “cliff” bequests — is how we keep estates on the right side of that line. Our NY Estate Tax Guide explains the strategies in depth.
Why “Get It Right the First Time” Matters
Do I really need a specialist, or will a DIY form do?
Online forms cannot coordinate four interlocking documents, cannot navigate the estate-tax cliff, and cannot adapt to New York’s specific execution rules under EPTL §3-2.1. The cost of fixing a defective plan — through litigation or avoidable tax — vastly exceeds the cost of building it correctly. That is the entire premise of working with a specialist: do it once, do it right.
Ready to build a plan that holds up? Schedule a consultation with attorney Russel Morgan, Esq. of Morgan Legal Group: Book your 30-minute consultation.
This page is general information for New York residents, not legal advice. For statutory text, see the New York State Senate, the NYS Department of Taxation and Finance, and the NYS Department of Health.
Further reading from Morgan Legal Group: why estate planning is so important.