Most people don’t come to an estate-planning attorney with a tidy list of documents in mind. They come with questions — and worries. What happens to my home if something happens to me? Who makes decisions if I can’t? Will the State take a cut? Do I really need a trust, or is a will enough?
This page answers those questions directly. Morgan Legal Group, led by attorney Russel Morgan, Esq., builds estate plans for families across New York State — from the five boroughs of New York City to Long Island, Westchester, the Hudson Valley, and Upstate. The law below applies statewide, and so does our advice: a plan built on guesswork is no plan at all.
Schedule a consultation with Russel Morgan, Esq.
“What does a complete estate plan in New York actually include?”
This is the question we hear first, and the answer surprises people: a will alone is not a complete plan. A coordinated New York estate plan rests on four documents working together.
| Document | NY Authority | What it does | What happens without it |
|---|---|---|---|
| Last Will & Testament | EPTL §3-2.1 | Directs who inherits your property; names a guardian for minor children | Intestacy under EPTL Article 4 — the State’s formula decides your heirs |
| Trust | EPTL Article 7 | A revocable living trust avoids probate; an irrevocable trust protects assets & plans for Medicaid | Assets pass through court probate; no protection or tax planning |
| Durable Power of Attorney | GOL §5-1513 | Lets a trusted agent handle your finances if you’re incapacitated | Family may need a costly court guardianship proceeding |
| Health Care Proxy | Public Health Law Article 29-C | Names an agent to make your medical decisions | No clear voice for your care when you can’t speak for yourself |
Each piece covers a gap the others can’t. Learn how they fit together on our estate planning overview.
“Isn’t a will enough?”
A will is essential — but it has limits. To be valid in New York, EPTL §3-2.1 requires that you sign at the end of the document, in the presence of (or acknowledged to) two attesting witnesses, with publication — meaning you declare to the witnesses that the document is your will. Get the formalities wrong and the will can fail.
But here is the part most people don’t realize: a will does not avoid probate. A will is the instruction sheet for probate — the court process that proves your will and authorizes your executor. If you want your family to skip that process entirely, you need a trust.
“Do I need a trust — and which kind?”
It depends on your goal. Under EPTL Article 7, New York recognizes two broad categories, and they do very different jobs.
- Revocable living trust. You keep full control during your life and can change it anytime. Its job is to avoid probate and keep your affairs private. Important caveat: a revocable trust offers no estate-tax savings and no asset protection, because the law still treats the assets as yours.
- Irrevocable trust. You give up some control in exchange for real protection. This is the tool for tax reduction, asset protection, and Medicaid planning — but New York’s Medicaid program imposes a 5-year look-back on transfers, so timing matters enormously.
- Supplemental Needs Trust (SNT). Authorized by EPTL 7-1.12, an SNT lets a loved one with a disability inherit without losing means-tested government benefits.
Explore the options on our trusts page. The right structure is rarely obvious — it turns on your assets, your family, and your timeline.
“Who handles things if I’m alive but can’t act for myself?”
This is the gap a will can never fill, because a will only speaks after death. Two documents speak while you’re living:
- The Durable Power of Attorney (GOL §5-1513) appoints an agent for your financial and legal affairs. New York’s 2021 statutory short form is durable by default — it stays in effect even after you become incapacitated, which is precisely the point. Details on our power of attorney page.
- The Health Care Proxy (Public Health Law Article 29-C) appoints an agent for your medical decisions. It is entirely separate from the financial POA — different agent allowed, different authority. See our health care proxy page.
Skip these, and your family may be forced into a guardianship proceeding to do what a simple signature could have authorized.
“Will New York tax my estate?”
This is where careful planning pays for itself. For deaths in 2026, New York’s basic exclusion amount is $7,350,000 (for deaths on or after 1/1/2026 through 12/31/2026). Estates below that owe no New York estate tax.
The danger is New York’s notorious “cliff.” Once your estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the exemption entirely. The estate is taxed from the very first dollar, at progressive rates of 3% to 16%. A modest amount over the cliff can trigger a tax larger than the overage itself.
Two more facts every New Yorker should know:
- New York has no gift tax — you can give during your lifetime without a separate gift tax.
- But gifts made within 3 years of death are added back into the taxable estate, so deathbed giving doesn’t escape the calculation.
Our NY estate tax guide walks through cliff planning in detail. If your estate is anywhere near these numbers, this is not a do-it-yourself project.
“Does this apply if I don’t live in Manhattan?”
Yes. These are New York State laws — they govern wills, trusts, POAs, and the estate tax for residents in every county. Whether you’re in Brooklyn, Buffalo, White Plains, or the North Fork, the same statutes apply. See our statewide guide for how we serve clients across New York.
Frequently Asked Questions
Q: How many witnesses does a New York will need?
A: Two. Under EPTL §3-2.1, you must sign at the end of the will in the presence of (or acknowledge your signature to) two attesting witnesses, with publication.
Q: Will a revocable living trust save me estate tax?
A: No. A revocable trust avoids probate and keeps matters private, but it provides no estate-tax savings — the assets are still treated as yours. Tax reduction calls for an irrevocable trust.
Q: What is the New York estate tax “cliff” in 2026?
A: If your estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the entire $7,350,000 exemption and are taxed on the whole estate from dollar one, at rates of 3% to 16%.
Q: Is a power of attorney the same as a health care proxy?
A: No. The durable POA (GOL §5-1513) covers financial and legal decisions; the health care proxy (Public Health Law Article 29-C) covers medical decisions. They are separate documents and can name different agents.
Q: What happens if I die without a will in New York?
A: Your estate passes by intestacy under EPTL Article 4 — a fixed statutory formula decides who inherits, regardless of your wishes. A valid will puts you in control.
Ready to get your questions answered?
Every family’s situation is different, and the stakes — your home, your savings, your loved ones’ security — are too high for templates. Sit down with attorney Russel Morgan, Esq., and build a plan that actually fits your life.
Book your 30-minute consultation
Authoritative sources: New York State Senate (consolidated laws) · New York State Department of Taxation and Finance · New York State Department of Health
Further reading from Morgan Legal Group: how trusts fit an estate plan.