New York Estate Planning Attorney: Wills, Trusts & Medicaid Protection

Estate planning is not only for the very wealthy. If you own a home in New York, have minor children, run a business, or simply want a say in what happens to your legacy, you need an estate plan that works under New York law — not a generic form pulled off the internet.

My name is Albert Goodwin. I have practiced estate planning, probate, and estate litigation in New York since 2008. I appear regularly in New York Surrogate's Courts — including New York County (Manhattan), Kings (Brooklyn), Queens, Bronx, Richmond (Staten Island), Nassau, and Westchester — and I draft, fund, and administer the trusts I create. Because I both build estate plans and litigate when they go wrong, I design documents around how New York courts actually read them.

Why New York Estate Planning Is Different

Most national estate planning content ignores the specific rules that govern New York estates. Those rules drive nearly every decision I make for a client:

• New York has its own estate tax with a punitive "cliff." Unlike the federal system, New York gives no portability between spouses and claws back the entire exclusion if your estate exceeds it by more than 5 percent. (More on this below.)
• The right of election (EPTL 5-1.1-A) guarantees a surviving spouse roughly one-third of the net estate, including many non-probate "testamentary substitutes." You cannot simply disinherit a spouse in New York without planning for this.
• Surrogate's Court procedure — governed by the SCPA — controls probate and administration. Knowing how a particular Surrogate's Court reviews a will, requires SCPA 1404 examinations, or demands a guardian ad litem changes how a will should be drafted and witnessed.
• New York Medicaid look-back and homestead rules have their own thresholds and timing that differ from federal Medicaid floors.

A plan that ignores these features can fail in ways the family only discovers after death, when it is too late and far more expensive to fix.

What Goes Into a Complete New York Estate Plan

A complete plan is a coordinated set of documents, each serving a specific purpose under New York law:

Last will and testament. The will distributes your probate assets, names your executor, and nominates a guardian for minor children. New York requires two witnesses and specific execution formalities under EPTL 3-2.1; a will signed improperly can be denied probate. Even in a trust-based plan, a "pour-over" will catches assets you never retitled into the trust.

Revocable living trust. For most clients who own New York real estate or have any complexity, a revocable trust is the central vehicle. You keep full control as trustee during life, and assets pass at death without Surrogate's Court probate — which in busy counties like Kings and Queens can otherwise take many months.

Durable power of attorney. New York overhauled its statutory POA form effective June 13, 2021, eliminating the separate Statutory Gifts Rider and folding gifting authority into a Modifications section. Older forms are still valid, but new ones must follow the current statute or banks will reject them. Customized gifting language is essential for any future Medicaid or tax planning.

Health care proxy. Under New York Public Health Law Article 29-C, this appoints an agent to make medical decisions if you cannot.

Living will. New York has no living will statute, but its courts (following Matter of Westchester County Medical Center [O'Connor]) require "clear and convincing" evidence of your wishes. A written living will supplies exactly that evidence for end-of-life decisions.

HIPAA authorization so your agents can access medical records.

Depending on your situation, I may add irrevocable tax or Medicaid trusts, an irrevocable life insurance trust (ILIT), a supplemental needs trust for a disabled beneficiary, or business succession documents.

New York Estate Tax: The Cliff, in Real Numbers

New York imposes its own estate tax on top of the federal estate tax. For deaths in 2024, the New York basic exclusion amount is $6.94 million (it is indexed and adjusts annually — confirm the current figure before relying on it). The federal exclusion for 2024 is far higher at $13.61 million per person, but it is scheduled to drop by roughly half at the end of 2025 unless Congress acts.

The danger in New York is the "cliff." If your taxable estate exceeds the New York exclusion by more than 5 percent — roughly $7.29 million in 2024 — you lose the entire exclusion, not just the excess. The result is that an estate slightly over the cliff can owe hundreds of thousands of dollars more in New York estate tax than an estate just under it.

Consider a simplified illustration (figures hypothetical, not an actual client): a Manhattan couple with a $7.6 million estate left everything outright to the survivor. At the second death, the entire estate sat in one taxable estate that blew past the cliff, and New York lost no chance to tax the full amount. Splitting the assets with a credit shelter trust at the first death — using both spouses' exclusions — would have kept each share under the threshold and could have eliminated the New York tax entirely. New York's lack of portability is precisely why credit shelter trusts remain essential here even though federal portability made them optional for federal purposes.

Common New York estate tax planning techniques include:

• Credit shelter (bypass) trusts to capture both spouses' New York exclusions, since New York offers no portability.
• Lifetime gifting to reduce the taxable estate — New York has no separate gift tax, though gifts made within three years of death are pulled back into the New York estate.
• Spousal Lifetime Access Trusts (SLATs) to lock in the higher federal exclusion before the scheduled 2026 reduction.
• Charitable bequests and charitable trusts to reduce the taxable estate.
• ILITs to keep life insurance proceeds out of the taxable estate while supplying liquidity to pay the tax.

I always confirm current exclusion and cliff figures with the New York Department of Taxation and Finance before finalizing a plan, because these numbers move every year.

New York Medicaid Planning

For clients worried about future nursing home or long-term care costs — routinely $15,000 or more per month in the New York City area — Medicaid planning is a core part of the plan. The most common tool is the irrevocable Medicaid Asset Protection Trust (MAPT), which holds the home and other significant assets outside countable resources after the five-year look-back for institutional (nursing home) Medicaid.

New York has historically distinguished between institutional Medicaid (with a five-year look-back) and community-based long-term care, such as home care under managed long-term care plans, which has not been subject to the same look-back. New York has enacted, but repeatedly delayed, a 30-month look-back for community-based care; the implementation date keeps shifting, so I confirm the current rules each time I plan. This is exactly the kind of moving target where generic online content is dangerous.

Other tools include life estate deeds, properly structured caregiver contracts, and crisis-stage gift-and-loan strategies. Medicaid planning works best with lead time — starting more than five years before care is needed opens the full toolbox. Crisis planning is still possible but has fewer options and worse outcomes.

For deeper detail on specific strategies, see our related guides on advanced NY estate planning techniques, the benefits of a living trust, and how to avoid probate in New York.

How I Work With Clients

No two plans are alike because no two families are alike. Here is the workflow I use:

1. Discovery meeting. We discuss your family, your assets, your goals, and your concerns — blended families, a child with special needs, a closely held business, or out-of-state property.
2. Design. I map your assets against New York estate tax exposure, the spousal right of election, probate avoidance, and Medicaid risk, then recommend a document set with a written, agreed scope and flat fee.
3. Drafting. I prepare your documents to satisfy New York execution formalities and Surrogate's Court expectations.
4. Signing ceremony. I supervise execution so witnessing and notarization are done correctly — the step where do-it-yourself plans most often fail.
5. Funding. A trust does nothing until assets are retitled into it. I help retitle real estate and accounts and coordinate beneficiary designations so the plan actually controls your assets.
6. Review. We update the plan when life changes.

Planning for Different Stages of Life

Young families. The priorities are naming a guardian for minor children, life insurance, and trusts so children do not receive assets outright at 18 under New York's UTMA rules.

Mid-career professionals. Growing wealth and businesses call for trusts for children, beginning tax planning, and succession documents.

Pre-retirement. With real estate, retirement accounts, and business interests in play, New York estate tax cliff planning, asset protection, and early Medicaid planning take center stage.

Retired clients. The focus shifts to incapacity protection, providing for a surviving spouse, and orderly transfer to children and grandchildren. Medicaid planning frequently becomes central.

Surviving spouses and late-in-life clients. Plans are updated to reflect changed circumstances and to keep documents current and well-organized for the family.

When to Update Your Plan

Review your plan after any of these events: marriage, divorce, or remarriage; birth or adoption of a child or grandchild; death of a named beneficiary, executor, or guardian; significant change in assets; major tax law change (the looming 2026 federal exclusion drop is a prime example); a serious health change; a move into or out of New York; or estrangement from someone named in the plan. A plan that fit your life ten years ago may not fit today.

Fees

Most estate planning engagements are handled on flat fees, set by complexity and agreed in writing at the outset. The fee covers the documents and the supervised signing ceremony. Trust funding, beneficiary updates, and follow-up consultations may be included or billed separately depending on the engagement — and we make that clear before you commit.

Frequently Asked Questions

Do I need a trust, or is a will enough in New York? A will alone still requires probate in Surrogate's Court, which is public and can take months. A funded revocable trust avoids probate and keeps your affairs private. Whether you need one depends on your assets, your real estate, and your privacy and tax concerns.

What is the New York estate tax exclusion right now? It was $6.94 million for 2024 and adjusts annually for inflation. Because of the 5 percent cliff, estates only modestly above the exclusion can lose the entire benefit, so I confirm the current figure before finalizing any plan.

Can I disinherit my spouse in New York? Generally no. Under EPTL 5-1.1-A, a surviving spouse can elect against the estate for roughly one-third of the net estate, including many non-probate transfers. Planning has to account for this.

How long is the Medicaid look-back in New York? Five years for nursing home (institutional) Medicaid. A separate look-back for community-based home care has been enacted but repeatedly delayed, so the rule should be verified at the time of planning.

Is the new 2021 power of attorney form mandatory? Powers of attorney signed after June 13, 2021 must follow the revised New York statutory form. Older, properly executed forms generally remain valid, but I recommend updating them so financial institutions accept them without dispute.

Speak With a New York Estate Planning Attorney

If you are ready to put a plan in place, I will go over your goals and give you a clear picture of what makes sense for you and what it will cost — in plain language, with no pressure. Learn more about Albert Goodwin, or contact us by phone at 212-233-1233 or by email at [email protected].

Planning ahead is a real gift to the people you love. It brings peace of mind for them — and for you.

This page is general information about New York estate planning law, not legal advice, and does not create an attorney-client relationship. Tax exclusion figures, Medicaid look-back rules, and statutory forms change; verify current law before acting.

What Happens Without a Plan: Probate, Administration, and Guardianship

Understanding what the Surrogate's Court process looks like helps explain why I structure plans the way I do. When a New York resident dies with a will, the named executor petitions the Surrogate's Court in the county where the decedent lived, and the court issues Letters Testamentary authorizing the executor to act. If there is no will, the intestacy rules of EPTL Article 4 control who inherits, and the court appoints an administrator who receives Letters of Administration — often not the person the decedent would have chosen.

Realistically, even an uncontested New York probate often takes roughly seven months to over a year, depending on the county's backlog, whether all distributees can be located and sign waivers, and whether a will contest arises. Contested matters can run for years. Smaller estates — personal property of $50,000 or less — may qualify for the streamlined voluntary administration procedure under SCPA Article 13, which avoids full probate entirely.

Two other consequences of not planning are worth noting:

• Guardianship. If you become incapacitated without a durable power of attorney, your family may have to petition for a court-appointed guardian under Mental Hygiene Law Article 81 — a public, expensive, and slow proceeding that a properly executed POA avoids.
• Ancillary probate. If you own real estate outside New York — for example, a Manhattan resident with a Florida condo — your family may face a second, separate probate proceeding in that state. Holding the out-of-state property in a revocable trust avoids the ancillary probate.

Common Misconceptions I Correct for Clients

A few points of accuracy come up in nearly every initial consultation:

• New York has an estate tax, not an inheritance tax. An estate tax is paid by the estate before assets are distributed. An inheritance tax — which New York does not impose — would be paid by the individual recipients.
• A revocable living trust does not save estate tax. Because you retain full control, the trust assets remain part of your taxable estate. Only certain irrevocable structures — credit shelter trusts, ILITs, and gifting trusts — actually reduce the tax.
• A revocable trust does not protect assets for Medicaid. Assets in a revocable trust are still counted as available resources. Only a properly drafted irrevocable trust removes assets from the Medicaid calculation, subject to the look-back rules.
• Annual gifting has a specific federal limit. The federal annual gift tax exclusion is $18,000 per recipient for 2024 (this figure adjusts periodically). Gifts within the annual exclusion require no gift tax return and are a simple way to reduce a taxable estate over time.
• A will's witnesses must sign within 30 days of one another. EPTL 3-2.1 imposes this timing requirement in addition to the other execution formalities — one more reason DIY wills fail probate.