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New York Estate Planning Checklist
This checklist is built around New York law: the Estates, Powers and Trusts Law (EPTL), the Surrogate’s Court Procedure Act (SCPA), the General Obligations Law for powers of attorney, and the Public Health Law for health care proxies. Unlike a generic template, it gives you the actual New York statutes, dollar thresholds and decision criteria you need before you sign anything. Use it as a working hub and follow the links to our deeper articles on each topic.
How to Use This Checklist
Work through the steps in order. Each step tells you what to decide, the controlling New York rule, and where to go deeper. New York estate planning is heavily statute-driven, and a small drafting error — an improperly witnessed will under EPTL § 3-2.1, for example — can invalidate an entire document, so none of this replaces individualized advice.
Step 1 — Identify Your Goals
Your goals determine which documents you actually need. These are the common New York goals and the tools that fit them.
| Goal | Tool and the New York rule |
|---|---|
| Protecting assets from nursing-home costs | An irrevocable Medicaid Asset Protection Trust is the foundation. New York imposes a 5-year (60-month) look-back for institutional (nursing-home) Medicaid. A 30-month look-back for community-based (home care) Medicaid was enacted in the 2020 budget legislation, but its start date has been repeatedly delayed; confirm the current effective date before relying on it. |
| Providing for a disabled loved one | A supplemental (special) needs trust under EPTL § 7-1.12 preserves Medicaid and SSI eligibility. See our guide on the benefits of a special needs trust. |
| Protecting children from a prior marriage | Plan around the elective share (Step 4). In New York a revocable trust is a testamentary substitute under EPTL § 5-1.1-A, so assets in it are still counted when a surviving spouse’s elective share is computed. |
| Avoiding probate | Beneficiary designations, joint ownership and revocable trusts can keep assets out of Surrogate’s Court. See how to avoid probate in New York. |
| Controlling when beneficiaries inherit | A testamentary or living trust can delay distribution until a beneficiary reaches a chosen age. Compare the trade-offs in our article on the advantages and disadvantages of a testamentary trust. |
Step 2 — Inventory Your Assets and How They Are Titled
In New York, how an asset is titled often matters more than what your will says. Probate assets pass under the will; non-probate assets pass by operation of law regardless of the will. For each asset, record both the value and the form of ownership.
| Asset | What to record and why |
|---|---|
| Bank and investment accounts | Note any joint tenancy with right of survivorship, transfer-on-death (TOD) or payable-on-death (POD) designation. Under New York Banking Law § 675, a joint account is presumed to pass to the survivor. |
| Real estate | Record whether you hold title as sole owner, as joint tenants with right of survivorship, as tenants by the entirety (available only to married couples in New York, and offering creditor protection), or as tenants in common, which passes through probate. |
| Retirement accounts and life insurance | These pass by beneficiary designation, not by will (Step 6). |
| Personal property, business interests and digital assets | New York adopted the Revised Uniform Fiduciary Access to Digital Assets Act (EPTL Article 13-A), which governs your fiduciary’s access to email, online accounts and cryptocurrency. |
Knowing your total gross estate also tells you whether the New York estate tax applies (Step 8) and whether your heirs might qualify for the simplified small-estate procedure under SCPA Article 13. Voluntary administration is available when personal property does not exceed $50,000, exclusive of certain exempt property and real estate.
Step 3 — Your Core New York Documents
Last Will and Testament (EPTL § 3-2.1)
A New York will must be in writing, signed by the testator (or by another at the testator’s direction) at the end, and witnessed by at least two witnesses who sign within 30 days of each other. The testator must be at least 18 and of sound mind. Choose an executor and an alternate; under SCPA § 707, a convicted felon, an incompetent person or a non-domiciliary alien (with limited exceptions) cannot serve. Name beneficiaries with precise legal descriptions, and consider whether to direct property into a testamentary trust for younger beneficiaries.
Statutory Short Form Power of Attorney (General Obligations Law § 5-1501 et seq.)
New York substantially overhauled its power of attorney form effective June 13, 2021. The principal’s signature must be acknowledged before a notary, and the document must also be signed by two witnesses, one of whom may be the notary. Gifting and other major-transaction authority is now built into the statutory form, which eliminated the separate “Statutory Gifts Rider” that prior law required, but you must still initial the relevant grants. Third parties such as banks face penalties for unreasonably refusing a properly executed statutory form. A valid power of attorney lets your agent manage your finances without a costly Article 81 guardianship if you lose capacity.
Health Care Proxy and MOLST (Public Health Law Article 29-C)
New York uses a health care proxy, which is distinct from a living will, to appoint an agent to make medical decisions. It must be signed by you and two adult witnesses, and your appointed agent cannot be a witness. New York has no living-will statute; instead, your written and oral statements of your wishes guide your agent, and end-of-life medical orders are recorded on a MOLST (Medical Orders for Life-Sustaining Treatment) form signed by a physician. We explain the differences on our page for an advance directive attorney in New York.
Step 4 — Account for the Spousal Elective Share (EPTL § 5-1.1-A)
You cannot fully disinherit a surviving spouse in New York. A surviving spouse may elect to take the greater of $50,000 or one-third of the net estate. Critically, the elective-share calculation reaches testamentary substitutes, including revocable trusts, Totten trusts, jointly held property and certain gifts made within one year of death. If protecting children from a prior relationship is a goal, plan around this rule deliberately, for example with a properly executed prenuptial or postnuptial waiver under EPTL § 5-1.1-A(e).
Step 5 — Decide Whether You Need a Trust
Trusts solve specific New York problems; they are not for everyone. With a revocable living trust you keep control, can amend or revoke it, and assets retitled into it avoid Surrogate’s Court probate while remaining in your taxable estate; read more in benefits of a living trust. An irrevocable trust is used for Medicaid planning and creditor protection: you give up control, but assets transferred more than five years before applying for institutional Medicaid are protected from the look-back. For larger estates, see advanced New York estate planning techniques.
Not every asset belongs in a trust. Retirement accounts, for example, generally should not be retitled into a revocable trust because of the adverse income-tax consequences.
Step 6 — Review and Update Beneficiary Designations
Beneficiary designations on retirement accounts, life insurance and POD/TOD accounts override your will. Review them after every major life event. Note a New York trap: under EPTL § 5-1.4, divorce automatically revokes most provisions in favor of a former spouse, including beneficiary designations on certain instruments, but it is far safer to update them affirmatively than to rely on the statute.
Step 7 — Plan for Minor Children
Under SCPA Article 17, a guardian is required for any property exceeding $10,000 passing to a minor. Name a guardian of the person, who raises the child, and address a guardian or trustee of the property in your will, so the Surrogate’s Court can appoint your chosen person when the will is admitted to probate. Without a nomination, the court holds a separate guardianship proceeding, and the result may not match your wishes.
Step 8 — Consider New York Estate and Gift Tax
New York has its own estate tax, separate from the federal tax, and the New York exemption is significantly lower than the federal exclusion. Its most dangerous feature is the “cliff”: if your taxable estate exceeds the New York exemption by more than 5%, you lose the exemption entirely and the whole estate is taxed. Because the thresholds adjust annually, confirm the current figures before relying on any number; we keep them on our page on New York estate and inheritance tax. New York currently imposes no separate state gift tax, but gifts made within three years of death may be added back to the New York taxable estate. Discuss original versus stepped-up basis treatment for trust assets as part of this analysis.
Step 9 — Organize and Store Your Documents
Keep originals secure but accessible to your fiduciaries. In New York, a safe-deposit box can complicate matters: after death, access usually requires a court order or letters from the Surrogate’s Court unless the box is jointly held. Many clients keep the signed original will with their attorney or in a fireproof home safe and give the executor and health care agent copies plus instructions on where the originals are.
New York Estate Planning FAQ
Do I need a will if I have a small estate in New York?
If your probate personal property is $50,000 or less, your heirs may use voluntary administration under SCPA Article 13, which is faster and cheaper than full probate. A will still controls who inherits and who serves, so it remains valuable even for small estates.
How much can a surviving spouse claim against my estate?
Under EPTL § 5-1.1-A, the greater of $50,000 or one-third of the net estate, and this reaches assets in revocable trusts and other testamentary substitutes.
What is New York’s Medicaid look-back period?
Five years (60 months) for nursing-home Medicaid. A separate look-back for home-care Medicaid was enacted but its implementation has been repeatedly delayed; verify the current status before planning around it.
Is a living will valid in New York?
New York has no living-will statute. Instead you use a health care proxy under Public Health Law Article 29-C plus, for medical orders, a MOLST form signed by a physician.
Does a New York power of attorney need witnesses?
Yes. Since June 2021, the statutory short form must be notarized and signed by two witnesses, and the notary may serve as one of them.
Talk to a New York Estate Planning Attorney
Estate planning under New York law involves tightly drafted statutory documents and tax rules that change yearly. We prepare plans suited to each client’s goals and make sure every document is executed to New York’s requirements. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected] to schedule a consultation. You can also verify procedures directly through the New York Surrogate’s Courts and the New York Estates, Powers and Trusts Law.
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
