New York Estate Planning Lawyer
New York Estate Planning Done Right the First Time
New York has its own estate tax with a $7.35 million threshold in 2026, strict will execution requirements, and a separate healthcare proxy statute — each of which affects how your plan should be structured. Seraj Law drafts estate plans that work under New York law, not just in theory.
Step 1 of 6
Understand what's at stake
New York's Default Rules
New York is one of the few remaining states with its own separate estate tax — and its 'cliff' structure means that an estate more than 5% over the threshold is taxed on its entire value, not just the excess. Without a plan tailored to New York's specific rules, families can face unexpected tax liability, probate delay, and a distribution outcome the decedent never intended.
Estate Planning in New York State
Estate planning in New York is shaped by a body of state-specific law that differs meaningfully from the federal framework and from the rules that apply in most other states. New York’s Estates, Powers and Trusts Law (EPTL) governs how wills are executed and interpreted. New York’s Surrogate’s Court Procedure Act (SCPA) governs probate administration. New York maintains its own separate estate tax with an exemption that does not match the federal exemption and a “cliff” structure that punishes estates that stray just above the threshold. And New York’s General Obligations Law Article 5-B was substantially amended in 2021 to overhaul the Power of Attorney statute.
We prepare estate plans for families across New York State from our Albany office, with the Capital Region as our home base, and we meet clients wherever they live.
Seraj Law designs estate plans that account for this specific legal environment. Our attorneys do not apply a generic national template — we build plans around New York’s rules, the client’s specific assets and family structure, and the goals the client has for what happens after they are gone.
The New York Estate Tax: A Critical Planning Consideration
Most states have eliminated their own estate taxes; New York has kept its. For families planning in New York, the state estate tax creates a layer of exposure that a plan focused solely on the federal exemption may leave unaddressed.
New York’s Exemption and the Cliff Effect
The New York estate tax exemption for 2026 is $7.35 million per individual. Estates with a taxable value at or below this threshold owe no New York estate tax. However, New York’s exemption has a critical structural feature that distinguishes it from the federal exemption: the “cliff.”
Under New York law, an estate that exceeds 105% of the exemption amount loses the benefit of the exemption entirely. For 2026, 105% of $7,350,000 is $7,717,500. Above that line, the estate is taxed on its full value, not just the amount over the exemption. The result is a steep cliff: a taxable estate of $7.8 million is taxed on the full $7.8 million, while a taxable estate of $7.35 million owes no New York estate tax at all.
For families whose estates are in the range of $5 to $10 million — a range that includes many New York homeowners with appreciated real estate and retirement savings — estate tax planning is not an academic exercise. It is a substantive financial decision that should be addressed before death, not left to the Surrogate’s Court.
No Portability in New York
The federal estate tax allows married couples to “port” any unused exemption from the first spouse’s estate to the surviving spouse, effectively giving the couple a combined federal exemption of $30 million in 2026. New York does not permit portability. Each spouse’s New York exemption exists only at that spouse’s death — the surviving spouse cannot use the deceased spouse’s unused exemption.
For married couples whose combined estate may approach or exceed a single New York exemption, planning that uses both spouses’ exemptions (for example, through a bypass trust, also called a credit shelter trust) can shelter significantly more from New York estate tax than allowing the first spouse’s exemption to lapse.
New York Estate Tax Rates
New York’s estate tax rates range from 3.06% on the first taxable bracket to 16% on the highest bracket. These rates apply on top of any federal estate tax that may be owed. For estates that are subject to both federal and New York estate tax, the combined marginal rate on the top bracket can reach roughly 50%. Reducing the taxable estate below the applicable thresholds is the most effective planning strategy.
Step 2 of 6
Choose your documents
Planning Under New York Law
Seraj Law designs estate plans that account for New York's Estates, Powers and Trusts Law, the Surrogate's Court Procedure Act, New York's estate tax structure, and the 2021 reforms to the Power of Attorney statute. Every plan is built around the client's actual assets, family situation, and goals — not a generic template.
Core Estate Planning Documents Under New York Law
The Will
A New York will must comply with the execution requirements of EPTL § 3-2.1: signed at the end by the testator (or by another person at the testator’s direction in their presence), and subscribed by at least two witnesses who each sign within 30 days of each other. The testator must declare to each witness that the instrument is their will. No witness attestation clause is technically required, but including a proper attestation clause and, ideally, a self-proving affidavit (signed before a notary) streamlines the probate process.
Importantly, holographic wills — wills handwritten entirely by the testator without witnesses — are not valid in New York under standard circumstances. Military holographic wills have a limited exception during active service. A handwritten note expressing the decedent’s wishes has no legal effect in New York if it does not comply with the full execution requirements.
Seraj Law drafts wills that satisfy New York’s execution requirements, reflect the client’s specific distribution wishes, appoint appropriate fiduciaries, and address contingencies — what happens if a named beneficiary predeceases the testator, what happens if the named executor cannot serve, and how assets should pass if the first-choice distribution fails.
Trusts
Trusts offer advantages that wills alone cannot provide. A revocable living trust can hold title to the grantor’s assets during life and direct their distribution at death without probate — reducing delay, cost, and public disclosure of the estate. An irrevocable trust, properly designed and funded at least five years before a Medicaid application, can protect assets from Medicaid spend-down requirements.
New York’s trust law is part of the EPTL. Trusts must be properly created, funded, and administered. Seraj Law designs trust structures appropriate to the client’s goals and drafts the trust instrument, funding documents, and trustee appointment documentation.
Power of Attorney
New York’s Power of Attorney statute was substantially reformed in 2021, with new requirements taking effect June 13, 2021. All Powers of Attorney executed after that date must use the updated statutory short form or a form that complies with the updated requirements. Key changes include: a new requirement that the agent sign a “statutory major gifts rider” before making gifts of any amount; expanded third-party liability for unreasonably rejecting a valid POA; and clarified execution requirements. Seraj Law drafts POAs under the current form and explains the agent’s authority and responsibilities.
Health Care Proxy
New York’s Health Care Proxy Law (Public Health Law § 2980 et seq.) is separate from the Power of Attorney. The New York health care proxy form is available from the Department of Health and must meet specific execution requirements to be valid. A health care proxy designates an agent to make medical decisions when the principal cannot. To be effective for life-or-death medical decisions — including withdrawal of life-sustaining treatment — the proxy must include a specific statement that the agent is authorized to make decisions even under conditions involving the termination of life-sustaining treatment. Seraj Law drafts health care proxies in conjunction with the POA and Living Will (advance directive) to provide a complete incapacity planning package.
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Step 3 of 6
Know the courts and the rules
The Legal Framework: EPTL and SCPA
Estates, Powers and Trusts Law (EPTL)
The EPTL is the foundational statute for testamentary and trust planning in New York. It governs:
- The formal requirements for will execution (EPTL § 3-2.1)
- The rules for interpreting ambiguous will provisions
- New York’s intestacy rules — who inherits if there is no valid will
- The rights of a surviving spouse to elect against the will (EPTL § 5-1.1-A)
- The creation, administration, and termination of trusts
- Rules against perpetuities and the duration of trust administration
A will that does not comply with EPTL § 3-2.1’s execution requirements — signed by the testator at the end, subscribed by two witnesses who understand they are witnessing a will execution, and attested during the testator’s lifetime — is invalid under New York law, regardless of how clearly it expresses the decedent’s wishes.
Surrogate’s Court Procedure Act (SCPA)
The SCPA governs the probate administration process in New York. Probate proceedings are conducted before the Surrogate’s Court in the county where the decedent was domiciled. The process includes: filing a petition for probate with the original will, citing all necessary parties (spouse, children, and potential intestate distributees), obtaining a decree admitting the will to probate, and then administering the estate under Letters Testamentary.
The Surrogate’s Court is also the court with jurisdiction over the administration of intestate estates, accounting proceedings, and proceedings to construe disputed will provisions. Its rules and procedures differ from the Supreme Court and general civil practice; representation by attorneys familiar with Surrogate’s Court practice is essential for contested proceedings.
The Right of Election
A surviving spouse in New York cannot be entirely disinherited. EPTL § 5-1.1-A gives the surviving spouse the right to elect against the will and receive the greater of $50,000 or one-third of the net estate. The elective share applies to the net estate — after debts and estate tax — and includes certain testamentary substitutes (lifetime transfers made to third parties). Estate plans for married couples must account for the right of election both as a protection for the surviving spouse and as a constraint on planning designed to pass assets outside the marital unit.
Counties We Serve
For families in the counties around Albany, these guides cover the local Surrogate’s Court, e-filing, and deed recording:
- Saratoga County estate planning: the Surrogate’s Court in Ballston Spa, e-filing, and recording a trust deed with the County Clerk.
- Rensselaer County estate planning: the Surrogate’s Court in Troy, e-filing, and deed recording with the County Clerk.
- Schenectady County estate planning: the Surrogate’s Court on State Street, e-filing rules, and small-estate administration.
Step 4 of 6
Plan for long-term care
Medicaid Planning in New York
New York is one of the most generous states for Medicaid-funded long-term care, but eligibility requires meeting strict financial requirements. A single individual generally may not have more than $32,396 in countable assets (2026 figure, subject to annual adjustment) to qualify for Medicaid-funded nursing home care.
The five-year look-back rule means that asset transfers made within five years of a Medicaid application are scrutinized and may create a penalty period during which Medicaid will not pay for care. Assets transferred to an irrevocable Medicaid Asset Protection Trust (MAPT) more than five years before application are generally not countable — making early planning critical.
Certain assets are exempt from Medicaid’s countable asset rules: the primary residence (subject to equity limits and recovery rules), one motor vehicle, and personal effects. Medicaid planning intersects with estate planning in important ways — the strategies that reduce estate tax exposure may differ from the strategies that protect assets from Medicaid spend-down.
Seraj Law counsels clients on Medicaid eligibility planning in the context of a comprehensive estate plan, helping families understand the options and tradeoffs before a care crisis forces decisions under pressure.
Step 5 of 6
Work with Seraj Law
Working with Seraj Law on Your New York Estate Plan
The starting point for every estate planning engagement is understanding the client’s specific situation: the composition of the estate (real property, retirement accounts, business interests, life insurance, liquid assets), the family structure, existing planning documents, and the goals the client has for their legacy and for protecting their family.
We provide a clear overview of the documents appropriate to the client’s situation, explain the New York-specific considerations that affect their plan, and draft all documents with the precision that New York’s statutory requirements demand. Estate planning is not a commodity service — the documents that will govern what happens to everything you have built deserve careful, individualized attention.
The information on this page is for general informational purposes only and does not constitute legal advice. Reading this page does not create an attorney-client relationship with Seraj Law, PLLC. Please contact our office to discuss the specific facts of your situation.
Frequently Asked Questions
What is New York's estate tax threshold in 2026?
New York's estate tax exemption for 2026 is $7.35 million per individual. Unlike the federal exemption, New York's exemption does not allow portability between spouses — a surviving spouse cannot use the deceased spouse's unused exemption. An estate that exceeds 105% of the exemption amount loses the exemption entirely and is taxed on the full value, not just the amount over the threshold. This 'cliff' structure makes planning for estates near the threshold especially important.
Does New York require probate for all estates?
Not all New York estates require Surrogate's Court administration. Assets held in joint tenancy, assets with named beneficiaries (life insurance, retirement accounts, POD bank accounts), and assets held in a trust all pass outside of probate. For assets that do require probate, the Surrogate's Court in the county where the decedent resided has jurisdiction. A well-designed estate plan can minimize or eliminate probate-bound assets, reducing delay and cost for the estate.
Can I use a will to avoid New York estate tax?
A will alone does not reduce New York estate tax — it determines who receives the taxable estate, but the tax is assessed regardless. Reducing New York estate tax requires lifetime planning: irrevocable trusts that remove assets from the taxable estate, gifts within the annual exclusion ($19,000 per recipient in 2026), charitable planning, and in some cases establishing domicile outside New York. Married couples can also use bypass trusts to shelter two exemptions from the NY estate tax on the second death.
What happens if I die without a will in New York?
If you die intestate (without a valid will) in New York, your estate is distributed under EPTL § 4-1.1's intestacy rules: your surviving spouse receives $50,000 plus half of the remaining estate; your children share the other half. If there is no surviving spouse, your children take the entire estate in equal shares. Parents, siblings, and more distant relatives inherit only if there are no surviving spouse or descendants. Intestacy rules do not account for blended families, unmarried partners, or the specific wishes most people have about who receives what.
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