Educational guide — not legal advice. New York law is set by statute and changes over time. Consult a licensed New York attorney about your situation.
Why New York is different
New York estate planning is shaped by cost. Two features stand out:
- Expensive probate. New York probate runs through Surrogate’s Court, the executor’s commission is set by statute, and attorney fees come on top. On a mid-size estate, the combined bill easily reaches the tens of thousands.
- A state estate tax with a cliff. Unlike many states, New York taxes large estates — and its “cliff” can tax the entire estate, not just the part above the exemption.
Because of this, a lot of New York planning is about keeping assets out of probate and, for the wealthy, managing the estate-tax cliff. Let’s walk through the pieces.
The core documents
1. A will
Your will names who inherits, who serves as executor, and guardians for minor children. A valid New York will must be in writing, signed at the end by you, and witnessed by two people within 30 days of each other (EPTL §3-2.1). New York does not recognize handwritten (holographic) or oral wills except in narrow cases (active military, mariners at sea). A will does not avoid probate — it directs it.
One New York-specific point: a surviving spouse has a right of election (EPTL §5-1.1-A) to claim the greater of $50,000 or one-third of the estate, so you generally cannot fully disinherit a spouse.
2. A durable power of attorney
Names someone to manage your finances if you can’t. New York overhauled its POA form in 2021, so use a current statutory short-form POA — older or out-of-state forms may be rejected by banks.
3. A health care proxy + living will
The health care proxy names someone to make medical decisions for you; the living will states your end-of-life wishes. Add a HIPAA release so your agent can access records.
4. Beneficiary designations and probate-avoidance titling
Often the cheapest, highest-value step. These pass outside probate:
- Retirement accounts and life insurance with named beneficiaries
- Payable-on-death / transfer-on-death bank and brokerage accounts
- Jointly owned property with right of survivorship (tenancy by the entirety between spouses)
- A funded revocable living trust
Note: New York has no transfer-on-death deed for real estate, so a solely owned home usually needs a trust or joint ownership to skip probate.
5. A living trust — often worth it in New York
Because New York probate is costly, a revocable living trust ($1,500–$4,000; more in NYC) is frequently worthwhile — especially for homeowners, larger estates, NYC-area residents, and anyone with property in two states. See How Much Does It Cost to Avoid Probate in New York?. Fund any trust you create — an unfunded trust avoids nothing.
New York’s probate cost: executor commissions
The statutory commission an executor may take (SCPA §2307):
| Estate value | Commission |
|---|---|
| First $100,000 | 5% |
| Next $200,000 | 4% |
| Next $700,000 | 3% |
| Next $4,000,000 | 2.5% |
| Above $5,000,000 | 2% |
Attorney fees (typically 2–4%) are charged separately, plus Surrogate’s Court filing fees of $45–$1,250 by estate value. A $500,000 estate can run $30,000+ all in. See Probate Cost in New York.
The New York estate tax cliff
New York has its own estate tax (separate from the federal one). The exemption is around $7 million (it adjusts annually). The trap is the “cliff”: if your estate exceeds the exemption by more than 5%, you lose the exemption entirely and the whole estate is taxed — not just the amount above the line. For estates near the threshold, this is worth planning around with a professional. Most New Yorkers are well under it and won’t owe state estate tax, but those close to it should get advice.
What happens if you do nothing
Without a will, New York intestacy law (EPTL §4-1.1) decides who inherits: spouse only → everything to the spouse; spouse and children → spouse gets the first $50,000 plus half, children split the rest; children only → all to the children. A house often ends up co-owned by spouse and kids. See What Happens to a House When the Owner Dies Without a Will in New York and What Happens If You Die Without a Will in New York.
A simple sequence to get started
- Inventory what you own and how each asset is titled.
- Update beneficiary designations on retirement accounts and life insurance.
- Get the core documents — will, current NY durable POA, health care proxy, living will.
- Add POD/TOD registrations; consider a trust for a solely owned home or multi-state property.
- Check the estate-tax cliff if your estate is near $7 million.
- Name guardians for minor children in your will.
- Tell your executor where everything is, and review after any big change.
The honest takeaway
New York probate is expensive — statutory executor commissions plus 2–4% attorney fees through Surrogate’s Court — and the state has its own estate-tax cliff for large estates. So in New York, keeping assets out of probate pays off: beneficiary designations and joint ownership are free, and a funded living trust is often worth its cost for homeowners and larger estates (especially since New York has no TOD deed). Get a current NY power of attorney and health care proxy too, and if your estate is near $7 million, get professional help with the cliff.
Common questions
How much does probate cost in New York?
Statutory executor commissions (5% of the first $100,000, scaling down) plus attorney fees of 2–4% and Surrogate’s Court filing fees — often $30,000+ on a $500,000 estate. See Probate Cost in New York.
Does New York have an estate tax?
Yes — its own state estate tax with an exemption around $7 million and a “cliff”: exceed it by more than 5% and the entire estate is taxed. Most New Yorkers are under the threshold.
Does New York have a transfer-on-death deed?
No. To keep a solely owned home out of probate, New Yorkers use a living trust or joint ownership with right of survivorship.
Can I disinherit my spouse in New York?
Generally no. A surviving spouse has a right of election to claim the greater of $50,000 or one-third of the estate (EPTL §5-1.1-A).
The full New York cluster
- How Much Does It Cost to Avoid Probate in New York?
- What Happens to a House When the Owner Dies Without a Will in New York
- Probate Cost in New York
- How to Avoid Probate in New York
- What Happens If You Die Without a Will in New York
Related national guides
- What Is Estate Planning (and Do You Actually Need One?)
- What Is Probate and How Does It Work?
- Estate Planning Checklist: Everything in One Place
Educational information only — not legal, tax, or financial advice. New York law is set by statute and changes; the estate-tax exemption adjusts annually. Confirm current figures and your situation with a licensed New York attorney. Sources: NY EPTL §§3-2.1, 4-1.1, 5-1.1-A; NY SCPA §2307, Article 13; NY Tax Law Article 26 (estate tax); New York Surrogate’s Court.