If you are reading this, you have probably already decided that “someday” has arrived. Good. The hardest part of estate planning is starting. This FAQ is built differently from most: instead of dense legal lectures, each answer ends with the next concrete step you can take. Use it as a working checklist.
Morgan Legal Group serves clients across all of New York State — New York City, Long Island, Westchester, the Hudson Valley, and Upstate. Attorney Russel Morgan, Esq. and our team coordinate every document below so they work as one plan, not four loose pieces.
Quick reference: the four documents every NY plan needs
| Document | NY authority | What it does | Why you need it |
|---|---|---|---|
| Last Will & Testament | EPTL §3-2.1 | Directs who inherits; names guardians/executor | Without it, intestacy (EPTL Article 4) decides for you |
| Revocable or Irrevocable Trust | EPTL Article 7 | Avoids probate; tax & Medicaid planning | Privacy, speed, asset protection |
| Durable Power of Attorney | GOL §5-1513 | Lets an agent handle finances | Avoids a court guardianship if you’re incapacitated |
| Health Care Proxy | Public Health Law Art. 29-C | Names an agent for medical decisions | Someone you trust speaks for you, not a stranger |
A complete plan is all four — coordinated together. See our estate planning overview for how the pieces connect.
Getting started
What is the very first step in setting up a New York estate plan?
Take an honest inventory. Before any document is drafted, list (1) your assets and roughly what they are worth, (2) how each is titled — solely, jointly, or with a beneficiary designation — and (3) the people you trust to act for you. Beneficiary designations on retirement accounts and life insurance pass outside your will, so they matter as much as the will itself.
Next step: Write down your assets and your three key people — executor, financial agent, and health care agent — then book a consultation to turn that list into a plan.
Do I really need a will if I don’t have much?
Yes. If you die without a will (intestate), New York’s EPTL Article 4 decides who inherits, in fixed shares — and that order may not match your wishes, especially in blended families or unmarried partnerships. A will also names the executor and, critically, a guardian for minor children. No amount of money replaces those choices.
Next step: If you have minor children or specific bequests in mind, treat a will as non-negotiable and draft it first.
What makes a New York will valid?
Under EPTL §3-2.1, your will must be in writing, signed by you (the testator) at the end of the document, and witnessed by two attesting witnesses. You must also “publish” the will — declare to the witnesses that the document is your will. Skipping any of these steps can void the entire will.
Next step: Never sign a will alone at the kitchen table. Have it executed under attorney supervision so the §3-2.1 formalities are met exactly.
Trusts, probate, and protection
Will a trust help me avoid probate — and will it save estate tax?
A revocable living trust (EPTL Article 7) lets assets pass to your beneficiaries without probate, keeping the transfer private and faster. Be clear about one thing: a revocable trust does not save estate tax — the assets remain yours for tax purposes. Tax savings, asset protection, and Medicaid planning come from an irrevocable trust.
Next step: If avoiding probate delays is your goal, ask about a revocable trust. If tax or long-term-care protection is the goal, ask about an irrevocable one.
What about Medicaid and protecting assets from nursing-home costs?
An irrevocable trust can shelter assets, but New York applies a 5-year look-back for institutional Medicaid — transfers into the trust must generally be made five years before you need that care. The earlier you plan, the more you protect. For a disabled beneficiary, a Supplemental Needs Trust (EPTL §7-1.12) holds assets without disqualifying them from needs-based government benefits.
Next step: If long-term care is on the horizon, start the irrevocable trust conversation now — the clock is the whole point.
Why do I need a Power of Attorney and a Health Care Proxy if I already have a will?
A will only operates after death. These two documents protect you while you are alive but unable to act. The Durable Power of Attorney (GOL §5-1513, using New York’s 2021 statutory short form) lets your agent manage finances; it is durable by default, meaning it survives your incapacity. The Health Care Proxy (Public Health Law Article 29-C) appoints a separate agent for medical decisions. They are distinct roles — financial and medical — and you should name them deliberately.
Next step: Sign a current Power of Attorney and Health Care Proxy as part of your plan, not as an afterthought.
New York estate tax in 2026
How much can I pass tax-free in New York in 2026?
For deaths on or after January 1, 2026 through 12/31/2026, the New York basic exclusion amount is $7,350,000. Estates below that owe no New York estate tax. New York rates are progressive, roughly 3% to 16%.
Next step: Estimate your taxable estate (don’t forget life insurance you own). If you’re near the threshold, schedule a tax-focused review.
What is the New York “estate tax cliff,” and why is it dangerous?
This is New York’s most punishing rule. The exclusion phases out completely once your estate exceeds 105% of the exclusion — $7,717,500 in 2026. Go over the cliff and you lose the entire exemption: your estate is taxed from the first dollar, not just the amount above the threshold. The difference can be hundreds of thousands of dollars.
Next step: If your estate is anywhere near $7.35M–$7.72M, plan around the cliff — charitable gifts and trust structures can pull you back under it.
Does New York tax gifts I make before I die?
New York has no gift tax — but there is a catch. Any gifts you make within 3 years of death are added back to your taxable estate. So deathbed gifting to dodge the cliff generally does not work; lifetime gifting must be planned well in advance.
Next step: If gifting is part of your strategy, start early and document it — the 3-year add-back makes timing critical.
How do I make sure all of this actually works together?
The single biggest mistake we see is documents that contradict each other — a will that leaves assets to a trust that was never funded, or a beneficiary form that overrides the whole plan. Coordination is the job.
Next step: Review our statewide guide for how plans differ across New York, then book a 30-minute consultation with attorney Russel Morgan, Esq. to put every piece in place.
This page is general information, not legal advice. New York estate law and tax thresholds change; confirm current figures with tax.ny.gov and statute text at nysenate.gov before acting.
Further reading from Morgan Legal Group: why estate planning is so important.