New York Estate Planning: Wills, Trusts, and Probate Basics

This reference explains how the main pieces of a New York estate plan fit together: the documents a plan is built from, the rules that make a will valid, what happens to property when there is no will, how estates move through Surrogate’s Court, and how the state taxes larger estates. It covers the framework and the vocabulary. The linked articles at the end handle each procedure step by step.

What estate planning covers in New York

Estate planning addresses two separate moments. The first is what happens to your property when you die. The second is who acts for you if you become unable to manage your own affairs while you are still alive. A will and any trusts handle the first question; a power of attorney and a health care proxy handle the second. New York treats each of these as its own document with its own signing rules, so a complete plan is usually a small set of documents rather than one.

Property passes at death in one of three ways. Assets titled in your name alone and not otherwise directed pass under your will through the court process called probate. Assets with a named beneficiary, retirement accounts, life insurance, payable-on-death bank accounts, pass directly to that person outside the will. Assets you hold jointly with right of survivorship pass to the surviving owner automatically. When there is no valid will, property that would have passed under one instead passes under New York’s intestacy statute. A plan works by deciding, in advance, which of these channels each asset uses.

Core documents and who they name

A New York estate plan is assembled from a handful of documents, each naming the people who will act or inherit:

• Will. Names an executor to gather assets, pay debts, and distribute what remains; names the beneficiaries who receive property; and, for a parent of young children, can nominate a guardian. Any person eighteen years of age or older and of sound mind may make one under EPTL 3-1.1.
• Revocable living trust. Holds assets you transfer into it during life and distributes them at death without probate. It does not reduce estate tax on its own and does not replace a will, which is still needed to catch anything left outside the trust.
• Durable power of attorney. Names an agent to handle financial and property matters if you cannot, under the statutory short form governed by New York’s General Obligations Law.
• Health care proxy. Names a health care agent to make medical decisions once you lose the capacity to make them yourself, under the Public Health Law.
• Beneficiary designations. The forms attached to retirement accounts, life insurance, and similar assets. They override the will for those assets, which is why an outdated designation is a common way a plan goes wrong.

Naming the same reliable person as executor, agent, and health care agent is common but not required; the roles are independent and can go to different people.

What makes a New York will valid

A will that does not meet the execution rules is not enforceable, no matter how clearly it states the maker’s wishes. The core requirements are set by EPTL 3-2.1. The will must be in writing and signed at the end by the person making it (the testator), or signed in the testator’s name by another person at the testator’s direction and in the testator’s presence. The testator must sign or acknowledge that signature in front of each of at least two attesting witnesses, and must declare to them that the document is a will. The two witnesses must sign their names and addresses within a single thirty-day period.

New York recognizes handwritten (holographic) and oral (nuncupative) wills only in narrow circumstances, chiefly members of the armed forces during armed conflict and mariners at sea, under EPTL 3-2.2, and even those expire after set periods. For everyone else, the witnessed writing is the only reliable route. A separate law authorizing electronic wills takes effect December 12, 2027, which will add a digital execution option alongside the traditional one.

What happens without a will

When a New York resident dies without a valid will, the estate is “intestate,” and EPTL 4-1.1 fixes who inherits. If the decedent leaves a spouse and children, the spouse takes the first $50,000 plus one-half of the remainder, and the children divide the rest by representation. A spouse with no children inherits the entire estate; children with no spouse inherit everything. If there is neither spouse nor children, the estate passes to surviving parents, then to siblings and their descendants, and outward to more distant relatives.

Intestacy also matters because it sets a floor a spouse cannot be written out of. Even with a will, EPTL 5-1.1-A gives a surviving spouse a right of election to claim the greater of $50,000 or one-third of the net estate, measured against the will and certain lifetime transfers treated as substitutes. The election must be made within six months of the issuance of letters and no later than two years after the death. A plan that leaves a spouse less than the elective share invites that spouse to override the will.

Probate and estate administration in Surrogate’s Court

New York estates are handled by the Surrogate’s Court in the county where the decedent lived. When there is a will, the named executor files a petition to “probate” it, to prove it is valid, and, once the court agrees, receives letters testamentary authorizing them to act. When there is no will, an eligible relative petitions for letters of administration and serves as administrator, distributing the estate under the intestacy rules. Both routes run through the Surrogate’s Court, which supervises the executor or administrator until the estate is settled.

Smaller estates can skip the full process. Under SCPA 1301, an estate is a “small estate” eligible for voluntary administration when the decedent left personal property with a gross value of $50,000 or less. This shortcut covers personal property only; it does not reach real estate the decedent owned, which follows the ordinary process. Probate reaches only assets that would have passed under the will, jointly held property and assets with named beneficiaries move to their new owners without court involvement, which is why many well-planned estates spend little time in Surrogate’s Court.

Planning for incapacity: power of attorney and health care proxy

The living half of a plan governs who acts for you if illness or injury leaves you unable to act for yourself. Two documents carry most of that weight.

A durable power of attorney appoints an agent to manage money and property. To be valid, the statutory short form must be signed and dated by the principal, acknowledged before a notary, and witnessed by two people who are not named as agents, under General Obligations Law 5-1501-B. The two-witness requirement was added by the 2021 overhaul of the form. A power of attorney can take effect immediately or only upon a stated future event, and it ends at the principal’s death, where the will and executor take over.

A health care proxy appoints a health care agent to make medical decisions. Under Public Health Law 2981, any competent adult may sign a proxy in front of two adult witnesses who also sign; the person named as agent cannot serve as a witness. The agent’s authority commences only when a physician determines the principal has lost the capacity to make health care decisions. A proxy is often paired with written instructions about care so the agent knows the principal’s wishes, particularly about artificial nutrition and hydration, which an agent cannot decide about in New York unless the principal’s wishes are known.

New York estate tax and the estate tax cliff

Most estates owe no New York estate tax, because the tax applies only above a high threshold. The New York State Department of Taxation and Finance sets the basic exclusion amount at $7,350,000 for deaths on or after January 1, 2026, up from $7,160,000 for deaths in 2025. A resident’s estate must file a New York estate tax return when the federal gross estate plus includible gifts exceeds that amount.

New York’s exclusion works differently from the federal one. Above the threshold the state exclusion phases out, and an estate large enough relative to the exclusion loses the benefit entirely and is taxed on its whole value rather than only the amount over the line. That feature, often called the estate tax “cliff,” is why estates near the threshold receive close attention. The federal estate tax is a separate system with a much higher exemption and its own return, described by the Internal Revenue Service; an estate can owe New York tax while owing no federal tax at all.

Specific procedures and topics