If the words “estate planning” make you think of complicated paperwork meant for the very wealthy, you are not alone — and you are not quite right. Estate planning is simply the process of writing down, in legally binding form, who handles your affairs if you cannot, and where your property goes when you are gone. Every adult in New York benefits from it. This page is written for the person who is starting from zero. No jargon, no scare tactics — just a clear map of how estate planning works in the State of New York, what the law actually allows (and does not allow), and what to do first.
Morgan Legal Group, led by attorney Russel Morgan, Esq., builds plans for clients across New York — from New York City and Long Island to Westchester, the Hudson Valley, and Upstate. Below is the overview we wish every new client could read before their first meeting.
What “estate planning” actually means
Your “estate” is everything you own: your home, bank accounts, retirement savings, a car, a business, and personal belongings. An estate plan is a set of legal documents that does two jobs:
- Direct your property when you pass away — clearly, so your family is not left guessing or fighting.
- Name people to act for you while you are alive but unable to act for yourself — for money decisions and for medical decisions.
When you do nothing, New York does the planning for you. State intestacy rules decide who inherits, a court decides who raises minor children, and decisions about your health or finances during an incapacity may require a court proceeding your family did not want. Planning is simply taking that control back.
The four documents in a complete New York plan
A genuinely complete plan in New York rests on four building blocks. Most adults need all four; a few need only some. Here is what each one does and the New York law behind it.
| Document | What it does | New York authority |
|---|---|---|
| Last Will and Testament | Names who inherits, names an executor, and names guardians for minor children. Takes effect at death. | EPTL § 3-2.1 |
| Trust(s) | Holds assets under rules you set; can avoid probate, protect assets, and control timing of inheritance. | EPTL Article 7 |
| Durable Power of Attorney | Lets a person you trust handle your finances if you become incapacitated. | GOL § 5-1513 |
| Health Care Proxy | Lets a person you trust make medical decisions when you cannot speak for yourself. | Public Health Law Article 29-C |
A will alone is a start, but it is not a complete plan. A will does nothing while you are alive, and it does not avoid the court-supervised probate process. The power of attorney and health care proxy are the documents that protect you during your lifetime — and because incapacity is far more common than sudden death, they are often the most important pieces.
Learn more on our dedicated pages: Wills, Trusts, and Powers of Attorney.
Wills versus trusts: the part new clients ask about most
A will is a public, court-supervised set of instructions. After death it goes through probate in the Surrogate’s Court, where its validity is confirmed and the executor is authorized to act. Probate works, but it takes time, becomes part of the public record, and can be contested.
A trust is a private arrangement. You move assets into the trust during your life, and a trustee manages them under your written rules. Because the trust — not you personally — owns those assets, they can pass to your beneficiaries without probate. Trusts come in two broad families:
- Revocable (living) trusts — you keep full control and can change or cancel them anytime. They are excellent for avoiding probate and managing assets during incapacity. Important: because you keep control, a revocable trust does not protect assets from your own creditors.
- Irrevocable trusts — you give up direct control in exchange for powerful benefits, including asset protection and Medicaid planning (more on this below).
Most plans use a will and a trust together, not one or the other.
Asset protection in New York: what is real, and what is a myth
This is the area where new clients hear the most misinformation, so read this section carefully.
New York does not allow you to hide your own assets from your own creditors using a trust you create for yourself. Unlike a handful of other states, New York does not authorize self-settled domestic asset-protection trusts (DAPTs). If you put your assets into a revocable trust — or any trust where you remain a beneficiary of your own gift — those assets are still reachable by your creditors. Any product or seminar promising “creditor-proof” protection of assets you still control should be treated with deep skepticism.
That does not mean asset protection is impossible in New York. It means it must be done with legitimate, legal tools:
- Irrevocable trusts, including the Medicaid Asset Protection Trust (MAPT) — an irrevocable trust subject to a five-year look-back for Medicaid eligibility.
- LLCs and business entities that separate personal assets from business liability.
- ERISA-qualified retirement accounts, which enjoy strong protection.
- Adequate liability insurance and life insurance.
- Statutory exemptions under CPLR Article 52 — most notably the homestead exemption, CPLR § 5206, which shields a portion of home equity.
Timing is everything
Here is the rule that governs all of it: asset protection must be done before a claim arises, not after. Under New York’s Debtor and Creditor Law, transfers made to defeat an existing or reasonably foreseeable creditor can be unwound by a court as voidable (fraudulent) conveyances. Moving assets after you have been sued, or when you can already see a lawsuit coming, does not protect them — it can backfire. Genuine protection is built during calm waters, years before any storm.
Read more on our Asset Protection page.
The New York estate tax in 2026
New York has its own estate tax, separate from the federal one, and it contains a feature that surprises many people: the cliff.
- The 2026 basic exclusion amount is $7,350,000. An estate under this figure generally owes no New York estate tax.
- If your taxable estate exceeds 105% of the exclusion — $7,717,500 — you fall off the “cliff.” An estate over the cliff loses the entire exemption and is taxed on the full value, not just the amount above the threshold.
- The tax is progressive, ranging from 3% to 16%.
- New York has no gift tax — but gifts made within three years of death are added back into the taxable estate.
The cliff is why planning matters even for estates that are merely near the threshold. A modest amount of careful planning can mean the difference between owing nothing and owing a large tax bill. For a deeper walk-through, see our NY Estate Tax Guide.
Where to begin: a simple first-steps checklist
- Take inventory. List what you own and roughly what it is worth, including retirement accounts and life insurance.
- Decide on your people. Who should be your executor, your trustee, your agent under power of attorney, your health care proxy, and (if you have young children) their guardian?
- Map your wishes. Who should inherit, and should anything be held in trust for timing or protection?
- Get the four core documents in place — will, trust, durable power of attorney, and health care proxy.
- Review every few years and after major life events: marriage, divorce, a new child, a move, or a large change in assets.
You do not have to figure this out alone, and you do not have to do it all at once. A short conversation is enough to identify which documents you actually need and in what order.
Frequently asked questions
Do I really need a trust, or is a will enough?
A will is enough to direct who inherits, but it does not avoid probate and does nothing while you are alive. Many New Yorkers use a will together with a trust to avoid court delays, keep matters private, and plan for incapacity. The right mix depends on your assets and goals.
Can I protect my house and savings from creditors by putting them in a trust?
Not in a trust you control or benefit from. New York does not allow self-settled asset-protection trusts. Legitimate options include irrevocable trusts, LLCs, retirement accounts, insurance, and the homestead exemption under CPLR § 5206 — but they must be set up before a claim arises.
What is the Medicaid five-year look-back?
When you apply for Medicaid long-term care, the state reviews asset transfers made in the prior five years. Transfers into a Medicaid Asset Protection Trust must generally be completed at least five years before you need care to avoid a penalty period — which is why early planning matters.
Will my estate owe New York estate tax?
Possibly. The 2026 New York exclusion is $7,350,000, but estates exceeding the cliff of $7,717,500 lose the entire exemption. Estates near these figures should plan carefully, since small differences can have large tax consequences.
How often should I update my plan?
Review your plan every few years and after any major life event — marriage, divorce, birth, death, a move, or a significant change in your finances. New York law and tax thresholds also change over time, so a periodic check keeps your plan current.
Estate planning is one of the most caring things you can do for the people you love. Whether you are starting fresh or revisiting an old will, attorney Russel Morgan, Esq. and the team at Morgan Legal Group help New Yorkers build clear, lawful, well-timed plans.
Schedule a consultation with Russel Morgan, Esq.
Further reading from Morgan Legal Group: the Morgan Legal Group practice areas.