If you are just starting to think about a will, a trust, or who would handle your affairs if you could not, the legal vocabulary can feel intimidating. This page answers the questions we hear most often from New Yorkers — in everyday language, with the actual statutes behind each answer. It serves clients across the entire state: New York City, Long Island, Westchester, the Hudson Valley, and Upstate.
For a step-by-step walkthrough of how the pieces fit together, see our Estate Planning Overview. To talk through your situation directly, schedule a consultation with attorney Russel Morgan, Esq.
The Four Core Documents at a Glance
A complete New York estate plan is not one document — it is four documents that work together. Here is what each one does:
| Document | What it covers | Governing law |
|---|---|---|
| Last Will and Testament | Who inherits your property after death; who serves as executor and guardian | EPTL §3-2.1 |
| Trust(s) | Holds assets during life and after; can avoid probate or protect assets | EPTL Article 7 |
| Durable Power of Attorney | Lets someone manage your finances if you cannot | GOL §5-1513 |
| Health Care Proxy | Lets someone make your medical decisions if you cannot | Public Health Law Article 29-C |
These four documents are designed to be coordinated. A will alone, for example, does nothing while you are alive — that is what the power of attorney and health care proxy are for.
Wills and Intestacy
What makes a will legally valid in New York?
Under EPTL §3-2.1, a New York will must meet specific formalities: it must be in writing, the testator (the person making the will) must sign it at the end, there must be two attesting witnesses, and the testator must “publish” the will — meaning declare to the witnesses that the document is their will. Skipping any of these steps can invalidate the entire will. Learn more on our Wills page.
What happens if I die without a will in New York?
You are said to die “intestate,” and EPTL Article 4 decides who inherits — not you. The state’s intestacy formula distributes your assets to your closest relatives in a fixed order (spouse, children, parents, and so on). If your wishes differ from that formula — for example, you want to provide for a partner you are not married to, or skip a relative — only a valid will can accomplish that.
Does a will avoid probate?
No. A will is the document that goes through probate, the court process that proves the will and authorizes your executor to act. If avoiding probate is a goal, a revocable living trust is the usual tool. See Trusts below.
Trusts
What is the difference between a revocable and an irrevocable trust?
This is one of the most important distinctions in EPTL Article 7:
- A revocable living trust lets you keep full control and change or cancel it anytime. Its main benefit is avoiding probate — but it offers no estate-tax savings and no asset protection, because the law still treats the assets as yours.
- An irrevocable trust gives up that control in exchange for real benefits: tax reduction, asset protection, and Medicaid planning. Because Medicaid imposes a five-year look-back, irrevocable Medicaid trusts must generally be funded well before care is needed.
Can a trust protect a disabled family member’s government benefits?
Yes. A Supplemental Needs Trust (SNT) under EPTL 7-1.12 holds assets for a person with disabilities without disqualifying them from needs-based benefits like Medicaid and SSI. Funds supplement, rather than replace, what those programs provide.
Powers of Attorney and Health Care Decisions
What does a power of attorney do, and why does “durable” matter?
A power of attorney lets a person you name (your “agent”) handle your financial and legal affairs. Under GOL §5-1513, a New York power of attorney is durable by default, meaning it stays in effect even if you become incapacitated — which is precisely when you need it most. New York uses a 2021 statutory short form that most institutions recognize. Details are on our Power of Attorney page.
Is a health care proxy the same as a power of attorney?
No — and confusing the two is a common mistake. A health care proxy, governed by Public Health Law Article 29-C, appoints an agent to make your medical decisions if you cannot speak for yourself. It is entirely separate from the financial power of attorney. Most New Yorkers need both. See our Health Care Proxy page.
New York Estate Tax
Will my estate owe New York estate tax in 2026?
For deaths on or after January 1, 2026 through December 31, 2026, New York provides a basic exclusion amount of $7,350,000. Estates below that figure generally owe no New York estate tax. New York has no gift tax, but be aware of two traps explained below. Our NY Estate Tax Guide goes deeper.
What is the New York “estate tax cliff”?
This is the rule that surprises people most. 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. The rates are progressive, running from 3% to 16%. An estate just over the cliff can owe dramatically more than one just under it, which is why planning around this threshold matters so much.
New York has no gift tax — so can I just give everything away before I die?
Not so fast. While New York imposes no gift tax, any gifts made within three years of death are added back into your taxable estate. Last-minute giving to dodge the estate tax generally does not work; effective gifting strategies are planned years in advance.
Getting Started
Every family’s situation is different — the right plan for a young couple with children looks nothing like the plan for a retiree with a taxable estate. The best first step is a conversation. Review our statewide guide to see how Morgan Legal Group serves clients across New York, then book a 30-minute consultation with Russel Morgan, Esq.
This page is general information, not legal advice. For guidance on your specific circumstances, consult a New York estate planning attorney. Statutory references — EPTL on the New York State Senate site, the Public Health Law, and the General Obligations Law — and the New York estate tax are public resources you can verify.
Further reading from Morgan Legal Group: why estate planning is so important.