If you are just starting to think about protecting your home, your savings, and your family’s future, the language of estate planning can feel overwhelming. This page is meant to be a plain-English starting point. It answers the questions New Yorkers ask most often — and it is honest about what asset protection can and cannot do under New York law.
Every answer below reflects current New York statutes for 2026. When you are ready to turn these general answers into a plan built around your own family, attorney Russel Morgan, Esq. and the team at Morgan Legal Group serve clients across the entire state — from New York City and Long Island to Westchester, the Hudson Valley, and Upstate.
The Four Documents Every New York Plan Should Cover
| Document | New York Authority | What It Does |
|---|---|---|
| Last Will & Testament | EPTL §3-2.1 | Directs who inherits your property and names guardians for minor children. |
| Trust(s) | EPTL Article 7 | Holds and manages assets — for probate avoidance, tax planning, or asset protection. |
| Durable Power of Attorney | GOL §5-1513 | Lets a trusted agent manage your finances if you cannot. |
| Health Care Proxy | Public Health Law Article 29-C | Names someone to make medical decisions when you cannot speak for yourself. |
A plan missing any one of these has a gap. Learn more on our estate planning overview.
Common Questions
1. What is the difference between a will and a trust?
A will (EPTL §3-2.1) only takes effect after you die and must pass through Surrogate’s Court in a process called probate. A trust (EPTL Article 7) can take effect during your lifetime, can avoid probate, and — if it is irrevocable — can also play a role in asset protection. Most complete plans use both. See our pages on wills and trusts.
2. Can I protect my own assets from my own creditors using a trust?
This is the single most important point to understand, and where many people are misinformed. New York does NOT allow self-settled domestic asset-protection trusts (DAPTs). You cannot place your own money into a revocable or self-settled trust and shield it from your own creditors. If you keep control and benefit, the assets remain reachable. Genuine protection in New York comes from a different set of tools, described below.
3. What asset-protection tools actually work in New York?
Legitimate, court-tested options include:
- Irrevocable trusts — including the Medicaid Asset Protection Trust (MAPT), which is irrevocable and subject to a 5-year look-back for nursing-home Medicaid.
- LLCs and business entities — to separate personal assets from business liability.
- ERISA-qualified retirement accounts — which carry strong creditor protections.
- Adequate liability and life insurance.
- Statutory exemptions under CPLR Article 52, such as the homestead exemption (CPLR §5206).
Our asset protection page explains how these fit together.
4. Why does timing matter so much?
Because asset protection done at the wrong time does not work — and can backfire. Transfers made to defeat an existing or reasonably foreseeable creditor can be unwound as voidable (fraudulent) conveyances under New York’s Debtor & Creditor Law. The lesson is simple: protection must be put in place before a claim arises, never after you have been sued or know a claim is coming.
5. What is the 5-year look-back for Medicaid?
If you may someday need nursing-home (long-term) Medicaid, New York reviews transfers you made in the five years before applying. Assets moved into an irrevocable Medicaid Asset Protection Trust must generally be transferred at least five years before you apply, or they can cause a penalty period. This is why families plan early rather than waiting for a health crisis.
6. How much can I leave before New York estate tax applies in 2026?
| 2026 New York Estate Tax | Amount |
|---|---|
| Basic exclusion amount | $7,350,000 |
| “Cliff” threshold (105% of exclusion) | $7,717,500 |
| Tax rate range | Progressive 3% – 16% |
New York has a notorious estate tax “cliff.” If your taxable estate exceeds the cliff of $7,717,500, you lose the entire exemption — not just the amount over the line — and tax applies to the whole estate. New York has no gift tax, but gifts made within three years of death are added back into the estate. See our New York estate tax guide.
7. Do I need a power of attorney if I already have a will?
Yes. A will does nothing while you are alive. A durable power of attorney (GOL §5-1513) is what allows a trusted agent to pay your bills, manage accounts, and protect your finances if illness or injury leaves you unable to act. Without it, your family may need a court guardianship. Read more on our power of attorney page.
8. Is my New York home protected from creditors?
Partly. New York’s homestead exemption under CPLR §5206 shields a portion of your home’s equity from certain creditors, with the protected amount varying by county. It is a meaningful safeguard, but it is not unlimited and does not protect against every type of claim (such as a mortgage you signed). Pairing the exemption with proper insurance and entity planning gives stronger overall protection.
9. Can I just download forms online instead of hiring an attorney?
You can, but New York’s formalities are strict. A will that is not signed and witnessed exactly as EPTL §3-2.1 requires can be invalid. A poorly drafted power of attorney can be rejected by banks. And a trust that does not match New York law may fail to protect anything. The cost of fixing these mistakes — often after death, when they cannot be corrected — usually far exceeds the cost of getting it right the first time.
10. How do I get started?
Start with a conversation. A New York estate planning attorney will review your assets, your family, and your goals, then recommend which of the tools above fit your situation. There is no one-size-fits-all plan.
Talk With a New York Estate Planning Attorney
Morgan Legal Group helps individuals and families across New York State build plans that reflect both what the law allows and what your family needs. To discuss your goals with attorney Russel Morgan, Esq., schedule a 30-minute consultation.
This page provides general information about New York law for 2026 and is not legal advice. Statutes and exclusion amounts change; consult a licensed New York attorney about your specific situation. Statutory references: EPTL §3-2.1, GOL §5-1513, CPLR §5206, and tax.ny.gov.
Further reading from Morgan Legal Group: the Morgan Legal Group practice areas.