Most people put off estate planning not because they don’t care, but because they don’t know where to start — or they assume the rules are too complicated to understand. They are not. Below, Morgan Legal Group and attorney Russel Morgan, Esq. answer the questions we hear most often from clients across New York State — from Manhattan and Brooklyn to Long Island, Westchester, the Hudson Valley, and Upstate.
This page is written in plain language, with the actual New York statutes cited so you can verify everything yourself. When you’re ready for advice tailored to your family, schedule a consultation.
Quick-Reference: The Four Core NY Documents
| Document | What it does | Governing NY law |
|---|---|---|
| Last Will & Testament | Directs who inherits; names an executor & guardians | EPTL §3-2.1 |
| Revocable / Irrevocable Trust | Avoids probate; protects assets; Medicaid & tax planning | EPTL Article 7 |
| Durable Power of Attorney | Lets an agent manage your finances if you can’t | GOL §5-1513 |
| Health Care Proxy | Lets an agent make your medical decisions | Public Health Law Article 29-C |
A complete plan uses all four, coordinated together. Learn how they fit on our estate planning overview.
1. Do I really need a will if I don’t have much?
Yes. If you die without a will in New York (called dying “intestate”), state law — EPTL Article 4 — decides who inherits, regardless of what you would have wanted. A spouse and children, parents, or more distant relatives inherit in a fixed statutory order, and you lose the ability to name a guardian for minor children or choose your own executor. A will (see /wills/) is the only way to put you in control of those decisions.
2. What makes a New York will legally valid?
Under EPTL §3-2.1, a valid NY will must be:
- In writing and signed by you (the testator) at the END of the document;
- Signed in the presence of two attesting witnesses; and
- Accompanied by publication — you must declare to the witnesses that the document is your will.
Small mistakes — signing in the wrong place, too few witnesses, no publication — can invalidate the entire document. This is why DIY forms so often fail in Surrogate’s Court.
3. What is probate, and how do I avoid it?
Probate is the court process that proves your will is valid and authorizes your executor to distribute assets. It can be slow and public. The most common way to avoid it is a revocable living trust under EPTL Article 7: assets you transfer into the trust during your life pass to your beneficiaries outside of probate.
One important caveat: a revocable trust avoids probate, but it provides no estate-tax savings on its own. For that you need different tools. Explore both on our trusts page.
4. What’s the difference between a revocable and an irrevocable trust?
| Revocable Living Trust | Irrevocable Trust | |
|---|---|---|
| Can you change it? | Yes, anytime | No (with narrow exceptions) |
| Avoids probate? | Yes | Yes |
| Estate-tax reduction? | No | Yes |
| Asset protection? | No | Yes |
| Medicaid planning? | No | Yes (subject to look-back) |
An irrevocable trust is the workhorse for tax reduction, asset protection, and Medicaid eligibility — but Medicaid planning is subject to a 5-year look-back period, so timing matters. A Supplemental Needs Trust under EPTL 7-1.12 lets a person with disabilities inherit without losing government benefits.
5. Why do I need a power of attorney if I already have a will?
Because a will only takes effect after death. A durable power of attorney under GOL §5-1513 works while you are alive — it lets a trusted agent pay bills, manage accounts, and handle real estate if illness or injury leaves you unable to act. New York adopted a 2021 statutory short form that, when properly executed, is durable by default (it survives your incapacity). Without one, your family may have to seek a court-appointed guardian. See /power-of-attorney/.
6. Isn’t a health care proxy the same thing?
No — and confusing the two is a common and costly mistake. A health care proxy, governed by Public Health Law Article 29-C, appoints an agent to make your medical decisions if you cannot speak for yourself. The financial POA covers money; the proxy covers medicine. You need both. Details on our health care proxy page.
7. Will my estate owe New York estate tax in 2026?
Possibly — New York has its own estate tax separate from the federal one. For deaths on or after January 1, 2026 through December 31, 2026, the basic exclusion amount is $7,350,000. If your taxable estate is at or below that figure, no NY estate tax is due.
8. What is the New York “estate tax cliff”?
This is the trap that catches unprepared estates. New York’s exemption phases out completely once your estate exceeds 105% of the exclusion — for 2026, that cliff is $7,717,500. Go even one dollar over the cliff and you lose the entire exemption: the estate is taxed from the first dollar, not just on the excess. Rates are progressive, from 3% to 16%.
| 2026 NY Estate Tax | Amount |
|---|---|
| Basic exclusion | $7,350,000 |
| Cliff (105%) | $7,717,500 |
| Tax rate range | 3% – 16% |
| Effect of exceeding cliff | Entire exemption lost |
Planning before you approach the cliff — often with gifting and irrevocable trusts — can save your family enormous sums. See our NY estate tax guide.
9. Does New York have a gift tax? Can I just give everything away?
New York has no gift tax — a meaningful planning advantage. However, there’s a catch: any gift made within 3 years of death is “added back” to your taxable estate. So last-minute deathbed gifting won’t dodge the estate tax. Strategic, well-timed gifting (more than three years out) is a legitimate and powerful tool when coordinated with the cliff rules above.
10. Do you serve my part of New York?
Yes. Morgan Legal Group serves clients statewide — New York City’s five boroughs, Long Island (Nassau & Suffolk), Westchester, the Hudson Valley, and Upstate New York. Estate planning law is set by New York State statutes, so the same EPTL, GOL, and Public Health Law rules apply wherever you live. See our statewide guide.
Still Have Questions?
These answers are general information, not legal advice for your specific situation. The right plan depends on your family, your assets, and your goals — and a single overlooked detail (a missing witness, an untimely gift, an estate just over the cliff) can be costly.
Attorney Russel Morgan, Esq. and the team at Morgan Legal Group build coordinated, statute-compliant estate plans for New Yorkers across the state.
Schedule your consultation today →
Authoritative external resources: the New York State Senate (statutes), the New York State Department of Taxation and Finance, and the New York State Department of Health.
Further reading from Morgan Legal Group: why estate planning is so important.