Estate Law · New York

New York estate planning rules

State-specific rules that affect how your estate is distributed, how probate works, and what planning steps matter most for New York residents.

New York divides descendants' shares by the modern per capita methodNew York uses per capita at each generation, not per stirpes, to divide descendants' shares of an intestate estate. The two methods produce different outcomes.
New York intestacy gives your spouse $50,000 plus half of the residueIn New York, a surviving spouse takes the first $50,000 plus half the residue of an intestate estate when descendants survive. A will overrides this formula.
New York protects children born after you write your willNew York gives after-born children of a testator an inheritance share unless the will provides for them or expressly excludes after-born children.
New York recognizes handwritten wills only for military members and marinersNY recognizes holographic and nuncupative wills only for armed-forces members during war or armed conflict and mariners at sea. These expire after service.
New York witnesses must sign your will within a 30-day windowNew York requires a will to be signed by the testator at the end and attested by two witnesses, who must each sign within a 30-day window of each other.
New York requires a written or physical act to revoke your willNew York will revocation requires a later will, a written revocation executed with will formalities, or a physical act of destruction with revocation intent.
New York voluntary administration handles personal property estates up to $50,000NY voluntary administration is available for small estates with personal property up to $50,000. Simpler than full probate; real property excluded.
New York executor commissions follow a statutory percentage scheduleNY's statutory schedule for executor commissions ranges from 5% on the first $100,000 to 2% on amounts over $5 million. More formal than reasonable-fee states.
New York probate runs through the Surrogate's Court in each countyNew York runs probate through Surrogate's Courts in each county. The petition, notice, and probate process is governed by the Surrogate's Court Procedure Act.
New York's 2021-reformed Statutory Short Form Power of Attorney is broadly requiredNY's 2021-reformed Statutory Short Form POA is the standard for financial POAs. Reforms simplified execution and added third-party acceptance penalties.
New York's Health Care Proxy is the only document for designating a medical decision-makerNY Health Care Proxy designates an agent for medical decisions during incapacity. Separate from the financial POA. Witnessed by two adults; no notary required.
New York recognizes living wills through case law, not a comprehensive statuteNY recognizes living wills via case law (Westchester/Eichner), not a comprehensive statute. Clear and convincing evidence required for end-of-life decisions.
New York's right of election gives a surviving spouse the greater of $50,000 or one-thirdNY surviving spouses can elect against the will under EPTL § 5-1.1-A, taking the greater of $50,000 or one-third of the net estate. Strict deadlines apply.
New York surviving spouses receive certain exempt property regardless of the willNY gives surviving spouses and minor children exempt property — vehicles, household items, cash up to $25,000 — outside the will and elective share.
New York limits the enforceability of in terrorem (no-contest) clausesNY limits enforceability of in terrorem clauses. Beneficiaries can challenge wills based on probable cause without forfeiting their gifts in many cases.
New York adds back gifts made within 3 years of death to the estate tax baseNew York estate tax adds back gifts made within 3 years of death — unique among states. Last-minute gifting cannot avoid the New York estate tax cliff.
New York's estate tax has a 'cliff effect' that taxes the full estate above the thresholdNY estate tax has a $7.16M threshold (2026, indexed) with a cliff effect — estates 5%+ above threshold lose the entire exclusion, taxing from dollar one.
New York treats GRATs favorably for state estate tax purposesNY follows federal GRAT rules. The technique transfers appreciation to children with minimal gift tax — valuable given NY's state estate tax exposure.

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This information is educational, not legal advice. For complex situations, consult a licensed New York attorney.