Estate Planning FAQ
A Will is a legally binding document where the testator, or Will maker, selects fiduciaries to carry out the Will terms, selects beneficiaries who may partake in receiving assets that pass through the Will and directs how estate expenses should be handled. A Will is only operative upon death but since New York follows the solemn probate regime, this means that any Will submitted to probate must satisfy strict formalities of Will execution and the Will maker must have testamentary capacity for it to be reviewed by the Surrogate.
An original Will must be presented to the Surrogate's Court in most cases and if duplicate originals were signed then both originals must be submitted. If the original Will cannot be found, then the Court presumes that the Will maker revoked it. However, if the Will original was left with its drafting attorney, then the Surrogate is more likely to admit a copy. For best practices, we provide clients with electronic copies of their signed documents and, upon request, conformed copies. Keep the original somewhere fireproof and findable — a document box at home is usually enough — and make sure your Executor knows it exists and where it is. New York's Surrogate's Courts will also accept an original Will for safekeeping during your lifetime for a small fee, which is the best answer where there is nobody you would rather trust with it. A safe deposit box in your sole name is the one option to think twice about: after a death the box may need a court order to open, which is precisely the wrong outcome at precisely the wrong moment.
Under New York law, you may not disinherit your spouse. If you are married and fail to provide for your spouse in your Will, then absent a prenuptial agreement or extraordinary circumstances, your spouse has a right of election to collect the greater of $50,000 or one-third of your estate if you have a Will. If you do not have a Will, then based upon your remaining biological or formally adopted family members, your surviving spouse will be entitled to a minimum of $50,000 plus one half of the rest of your estate, excluding exempt property like household items and the family car.
There is no legal obligation to include your children in your estate plan in New York. However, New York law attempts to treat all of your children equally. Therefore, if you provided for other children in your Will and thereafter have another child, such "after-born child" may petition the Surrogate's Court for a share equal to what you have provided to your other children.
A power of attorney allows a principal, or the person giving the power, to appoint an agent to make some or all important financial decisions on the principal’s behalf while they are alive yet incapacitated and terminates upon the death of the principal. A power of attorney is an important document that in the hands of the wrong agent can be a license to steal.
A health care proxy allows a principal, or the person signing the proxy, to appoint an agent to act in the principal’s best interests regarding health care matters while they are alive yet incapacitated and terminates upon the death of the principal. The health care agent should be very familiar with the wishes of the principal and should be able to make difficult yet informed decisions regarding the health of the principal after reviewing all information available to them by physicians caring for the principal at the time.
A living will is not a Will: it is a health care directive that should be read alongside a health care proxy. A living will allows the signer to set forth their wishes regarding artificial means of life support and anatomical gifts.
Yes — legislation passed in 2025 set the federal estate and gift tax exemption at $15,000,000 per person ($30,000,000 for a married couple) for 2026, and made that amount permanent rather than scheduled to expire. For most families, this removes the urgency that drove a wave of exemption-use planning over the past several years. It does not, however, eliminate New York's own, much lower estate tax exemption — see the next question.
No. New York's estate tax exemption is $7,350,000 per person for 2026 — less than half the federal amount — and New York does not offer portability between spouses the way federal law does. An estate plan built only around the federal number can still leave a New York family exposed to significant state estate tax.
New York taxes an estate on its full value — not just the amount above the exemption — once the estate exceeds the exemption by more than 5%. In 2026, that means an estate valued above roughly $7,717,500 loses the exemption entirely and is taxed from dollar one, which can mean a six-figure tax bill on an estate only modestly above the threshold. Because so much wealth in Manhattan is tied up in real estate and co-op equity, this is a real risk even for families who don't think of themselves as ultra-wealthy — and it's a planning issue we address directly.
It depends on the size of your estate relative to the exemption. Assets held until death generally receive a “step-up” in cost basis to fair market value, which can eliminate capital gains tax entirely for your heirs — an advantage a lifetime gift doesn't carry, since the recipient of a gift keeps your original, often lower, basis. For estates comfortably under the exemption, holding appreciated assets until death is often more tax-efficient; for estates well above it, the estate-tax savings from gifting early can outweigh the lost step-up. This is a case-by-case calculation worth running with your attorney and accountant together.
A probate proceeding is a public court filing — the will, and often a list of assets and beneficiaries, becomes part of the public record once it's filed with the Surrogate's Court. Funding a revocable living trust during your lifetime keeps those assets, and the terms of their distribution, out of that public filing, which is often the primary reason a client with a public profile, or simply a preference for privacy, chooses trust-based planning over a will alone.
Your domicile — not just where you own property — generally determines which state's estate tax applies to you, and the rules for establishing domicile are fact-specific and frequently contested when significant tax dollars are at stake. If you own real property in a state other than your domicile state, that property is typically also subject to that state's own probate or ancillary probate process, in addition to your primary estate administration. A plan that anticipates more than one state early avoids a second, separate court proceeding after death.
Digital assets and cryptocurrency need to be identified and made accessible to your fiduciary in a way ordinary bank accounts don't require — without a plan for access (keys, credentials, exchange accounts), these assets can be permanently lost rather than simply delayed. Art and collectibles raise a different issue: they typically require a qualified appraisal for estate tax purposes and a distribution or sale plan, since dividing a single valuable piece among multiple heirs often isn't practical. Both categories are common enough in Manhattan estates now that they deserve their own line item in your plan, not an afterthought.
A QPRT lets you transfer your home into an irrevocable trust while retaining the right to live there for a set term of years, discounting the home's value for gift tax purposes and removing its future appreciation from your estate if you outlive the term. Demand for QPRTs did genuinely cool after the 2025 tax act made the $15,000,000 federal exemption permanent — a lot of the QPRTs done in recent years were driven by families racing the old expiration deadline, and that urgency is largely gone. For a New York-focused estate, though, the calculus is different: New York's own exemption is only $7,350,000 with no portability between spouses, so a valuable Manhattan residence can still meaningfully contribute to New York estate tax exposure even for a family comfortably under the federal number — which keeps a QPRT genuinely relevant here, not obsolete. One more technical note, the opposite of what people often assume: a QPRT actually becomes more efficient at higher interest rates, not lower ones — unlike a GRAT — so today's rate environment doesn't work against it. In New York City, a QPRT holding a cooperative apartment carries a further wrinkle: the co-op board typically must approve the transfer of shares into the trust, which needs to be addressed before, not after, the trust is signed.
Outright distributions at a fixed age are the simplest approach, and for many families, the wrong one — a trust can instead stage distributions over time, condition access on milestones, or give a trustee discretion to support education, a first home, or a business venture, while protecting the balance from creditors, a future divorce, or the beneficiary's own inexperience. Some families also use a trust's terms, or a separate letter of wishes, to communicate values and expectations alongside the money itself. This is as much a family conversation as it is a drafting exercise, and we typically start with the former.
Not necessarily in place, but you do need to be willing to build that team. Sophisticated planning depends on your attorney, accountant, and investment or insurance advisors working from the same set of facts — a plan drafted in isolation from the rest of your advisors tends to break down at implementation, not at signing. If you don't have those relationships yet, we can help identify the right people for your situation; what we can't do is execute a sophisticated plan without that coordination in place.
A standard power of attorney and healthcare proxy — covered above — are still the foundation, but they may not be enough on their own. If you hold a controlling interest in a business, sit on investment committees, or direct a foundation or donor-advised fund, your incapacity documents need to specifically address who can vote your shares, sign on behalf of an entity, or continue charitable distributions in your absence. Without that detail, a business or philanthropic commitment can stall at exactly the moment it needs continuity most.