Most estate planning questions don’t start with “what is a trust?” They start with a problem: What happens if I get sick? Who controls my money? Will my estate get stuck in court — or hit with a tax I never saw coming? This FAQ is built around that reality. Each answer names a common New York problem and then gives you the practical fix, grounded in current statute.
Morgan Legal Group serves clients across all of New York — New York City, Long Island, Westchester, the Hudson Valley, and Upstate. The answers below apply statewide. When you’re ready for a plan tailored to your family, schedule a consultation with attorney Russel Morgan, Esq.
The Foundation
What documents do I actually need for a complete New York estate plan?
The problem: People sign one document — usually a will — and assume they’re protected. They aren’t.
The solution: A comprehensive New York plan coordinates four documents so they work together:
| Document | What it solves | NY authority |
|---|---|---|
| Will | Directs who inherits; names guardians for minors | EPTL §3-2.1 |
| Trust(s) | Avoids probate; protects assets; plans for tax/Medicaid | EPTL Article 7 |
| Durable Power of Attorney | Lets an agent manage finances if you’re incapacitated | GOL §5-1513 |
| Health Care Proxy | Lets an agent make medical decisions for you | NY Public Health Law Article 29-C |
A will alone does nothing while you’re alive and incapacitated, and it sends your estate through probate. The fix is the full, coordinated set. See our estate planning overview.
What happens if I die in New York without a will?
The problem: No will means you didn’t decide — the State did.
The solution: New York’s intestacy rules under EPTL Article 4 divide your estate by a fixed formula (spouse and children first), regardless of your wishes, relationships, or who needs the money most. Unmarried partners and stepchildren typically receive nothing. The fix is a properly executed will under EPTL §3-2.1 so your intentions — not a default statute — control.
Wills & Probate
Why is everyone so worried about “avoiding probate”?
The problem: Probate is the court process that validates a will and transfers assets. It can be slow, public, and contested.
The solution: A revocable living trust under EPTL Article 7. Assets you transfer into the trust pass to your beneficiaries outside of probate — privately and without waiting on a court. Important caveat: a revocable trust avoids probate but provides no estate-tax savings by itself. Learn how trusts fit your plan.
What makes a New York will valid?
The problem: A homemade or out-of-state will can fail on technicalities, leaving you effectively intestate.
The solution: Follow EPTL §3-2.1 precisely. A New York will requires:
- Two attesting witnesses
- The testator signs at the END of the document
- Publication — the testator declares to the witnesses that the document is their will
Miss any of these and the will may be denied. Working with counsel on your will removes that risk.
Trusts, Tax & Asset Protection
Revocable vs. irrevocable trust — which one solves my problem?
The problem: Choosing the wrong trust either fails to protect assets or locks them up unnecessarily.
The solution: Match the trust to the goal:
- Revocable living trust — flexible, you keep control, avoids probate. Best for streamlined administration and privacy. No tax savings.
- Irrevocable trust — used for estate-tax reduction, asset protection, and Medicaid planning. Because Medicaid imposes a 5-year look-back, transfers into an irrevocable trust should be made well in advance of needing long-term care.
- Supplemental Needs Trust (SNT) under EPTL 7-1.12 — preserves a disabled beneficiary’s eligibility for government benefits while still providing for them.
Our trusts page walks through each option.
How does the 2026 New York estate tax — and the “cliff” — affect me?
The problem: New York’s estate tax has a trap that the federal system doesn’t: the cliff. Go slightly over the line and you don’t just lose a slice of the exemption — you lose all of it.
The solution: Know the 2026 numbers and plan around them.
| 2026 NY Estate Tax | Figure |
|---|---|
| Basic exclusion amount (deaths 1/1/2026–12/31/2026) | $7,350,000 |
| The cliff (105% of the exclusion) | $7,717,500 |
| Tax rate (progressive) | 3% – 16% |
| NY gift tax | None |
Here’s the trap: an estate over the cliff of $7,717,500 loses the entire exemption and is taxed from the first dollar. An estate at $7,300,000 may owe nothing; an estate at $7,800,000 can owe a substantial tax on the whole amount. The fix is proactive planning — credit-shelter trusts, charitable gifts, or irrevocable trusts — to keep the taxable estate below the cliff.
One more catch: while New York has no gift tax, gifts made within 3 years of death are added back to the taxable estate. Deathbed gifting doesn’t escape the cliff. See our NY estate tax guide.
Incapacity Planning
If I become incapacitated, who handles my money — and my medical care?
The problem: Without the right documents, your family may need a court guardianship just to pay your bills or speak to your doctors. That’s expensive, slow, and avoidable.
The solution: Two separate documents that handle two separate jobs:
- Durable Power of Attorney under GOL §5-1513 — your agent manages finances (banking, bills, real estate). It’s durable by default, meaning it stays effective if you lose capacity. New York’s 2021 statutory short form is the modern, accepted version. See power of attorney.
- Health Care Proxy under NY Public Health Law Article 29-C — your agent makes medical decisions when you can’t. This is distinct from the financial POA; one cannot do the other’s job. See health care proxy.
Sign both, and you’ve replaced a courtroom guardianship with two pieces of paper you control.
Does a power of attorney let my agent make medical decisions?
The problem: Families assume one “POA” covers everything. It doesn’t.
The solution: Keep them separate and current. The financial POA (GOL §5-1513) covers money only; medical authority comes solely from the Health Care Proxy (PHL Article 29-C). A complete incapacity plan uses both, naming agents you trust and successor agents in case your first choice is unavailable.
Getting Started
I live outside NYC — does Morgan Legal Group serve my area?
The problem: Many firms quietly focus on one county or one Surrogate’s Court.
The solution: New York estate law is statewide. The statutes above — EPTL, GOL §5-1513, PHL Article 29-C, and the 2026 estate tax — apply whether you’re in Manhattan, Nassau or Suffolk on Long Island, Westchester, the Hudson Valley, or Upstate. Morgan Legal Group builds plans for clients across all of New York. See our statewide guide, then book a 30-minute consultation.
This page is general information about New York law for 2026, not legal advice. For guidance on your situation, consult attorney Russel Morgan, Esq.
Authoritative sources: NY Senate (statutes) · NY Dept. of Taxation & Finance · NY Dept. of Health
Further reading from Morgan Legal Group: why estate planning is so important.