Estate Planning: Frequently Asked Questions

Without a will, New York's intestacy laws dictate who inherits your assets, which may not match your wishes. A surviving spouse gets the first $50,000 plus half the estate; the rest goes to children. If you have no spouse or children, assets pass to increasingly distant relatives or ultimately to the state.

Source: N.Y. EPTL § 4-1.1

You must be at least 18 years old and of sound mind. The will must be in writing, signed at the end by you (or by someone at your direction in your presence), and witnessed by at least two people who also sign. Witnesses should not be beneficiaries. Oral and handwritten (holographic) wills are not valid in New York.

Source: N.Y. EPTL § 3-2.1

A will takes effect only at death and must go through probate. A revocable living trust takes effect immediately, avoids probate, maintains privacy, and provides for incapacity management. Trusts are more expensive to set up ($2,000-$5,000+) but save time and money at death. Most people with assets over $100,000 benefit from a trust.

Probate is the Surrogate's Court process that validates a will and authorizes the executor to distribute assets. It typically takes 7-12 months and costs 2-5% of the estate in legal and court fees. All beneficiaries and heirs must be notified. Probate is public record, meaning anyone can see the will and asset details.

Source: N.Y. SCPA Art. 14

A power of attorney authorizes someone to handle financial and legal matters on your behalf if you become incapacitated. New York requires a specific statutory form. Without one, your family must petition the court for guardianship ($5,000-$10,000+ in legal fees) to manage your affairs.

Source: N.Y. Gen. Oblig. Law § 5-1501B

A health care proxy designates someone to make medical decisions for you if you cannot communicate your wishes. Every adult over 18 should have one. It takes effect only when a physician determines you cannot make decisions. Without it, family members may disagree about treatment, leading to court intervention.

Source: N.Y. Pub. Health Law § 2981

New York's estate tax exemption is approximately $6.94 million (adjusted periodically for inflation). The federal exemption is $13.61 million per individual. New York's estate tax has a cliff: if the estate exceeds 105% of the exemption, the entire estate is taxed from dollar one, not just the excess. Rates range from 3.06% to 16%.

Source: N.Y. Tax Law s 952; IRC § 2010

No. New York gives a surviving spouse an elective share of the greater of $50,000 or one-third of the net estate, regardless of what the will says. This right cannot be waived except through a valid prenuptial or postnuptial agreement. The surviving spouse can claim this share within 6 months of probate.

Source: N.Y. EPTL s 5-1.1-A

A living will documents your wishes about end-of-life medical treatment (ventilators, feeding tubes, resuscitation) if you become terminally ill and cannot communicate. While not specifically authorized by New York statute, courts generally honor them. A health care proxy with detailed instructions is more legally reliable in New York.

If married with children: spouse gets $50,000 plus half, children split the rest. If married without children: spouse gets everything. If single with children: children inherit equally. If no spouse or children: parents, then siblings, then increasingly remote relatives. If no relatives can be found, the state takes everything.

Source: N.Y. EPTL § 4-1.1

A trust you create during your lifetime that holds your assets, which you control completely as trustee. You can modify or revoke it at any time. At your death, assets transfer to beneficiaries without probate, privately and typically within weeks. It also provides seamless management if you become incapacitated.

Medicaid has a 5-year look-back period for asset transfers. An irrevocable Medicaid asset protection trust can shield assets if funded more than 5 years before you need nursing home care. Nursing home costs in New York average $12,000-$15,000+ per month. Planning early is critical; last-minute transfers trigger Medicaid penalties.

Source: 42 U.S.C. § 1396p (Medicaid transfer rules)

Choose someone trustworthy, organized, and willing to serve. The executor manages all estate affairs including filing tax returns, paying debts, and distributing assets. New York requires non-resident executors to post a bond unless the will waives it. Always name an alternate executor.

Source: N.Y. SCPA § 707

Your will should name a guardian for minor children in case both parents die. Without a designation, the court decides, which may not align with your wishes. Name both a primary and alternate guardian. The court must approve the appointment, but a will designation carries significant weight.

Source: N.Y. SCPA § 1707

New York automatically revokes bequests to a former spouse upon divorce, but relying on this is risky. Other provisions (executor designation, trust provisions, beneficiary designations on life insurance and retirement accounts) are not automatically revoked. Update your will, trusts, and all beneficiary designations immediately after divorce.

Source: N.Y. EPTL § 5-1.4

Set by statute: 5% of the first $100,000, 4% of the next $200,000, 3% of the next $700,000, 2.5% of the next $4,000,000, and 2% of amounts over $5,000,000. Multiple executors share the statutory fee with modified percentages. Executors can waive fees, which is common for family members.

Source: N.Y. SCPA § 2307