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. The commission schedule is in SCPA §2307; no source for the combined bill on an estate of a given size is cited here.
- 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
Because New York probate is costly, a revocable living trust is the route most often used by 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 and Surrogate’s Court filing fees are charged separately; no published source for either is cited here. See Probate Cost in New York.
The New York estate tax cliff
New York has its own estate tax, separate from the federal one. N.Y. Tax Law §952(2)(B) sets the basic exclusion amount as $5,000,000 plus a cost-of-living adjustment measured against the consumer price index for calendar year 2010, so the figure moves each year and is not stated in the statute. Section 952 withholds the credit entirely from an estate whose New York taxable estate exceeds 105% of the basic exclusion amount — the “cliff”: above that point the exemption is lost 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.
- Beneficiary designations on retirement accounts and life insurance.
- 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.
- The estate-tax cliff applies where the New York taxable estate exceeds 105% of the basic exclusion amount (N.Y. Tax Law §952(2)(B)).
- Guardians for minor children, nominated in the will.
- Tell your executor where everything is, and review after any big change.
What the record shows
New York sets executor commissions by statute on a sliding scale (N.Y. SCPA §2307) and does not set attorney fees by statute; reported attorney charges through Surrogate’s Court are cited above. New York’s estate tax operates as a cliff: estates exceeding 105% of the basic exclusion amount are taxed on the entire estate rather than on the excess (N.Y. Tax Law §952). New York has no transfer-on-death deed for real property. A will requires two witnesses who sign within 30 days of each other (EPTL §3-2.1); holographic wills are recognised only for members of the armed forces and mariners (§3-2.2). Assets pass outside probate by beneficiary designation, survivorship titling, and by being retitled into a funded trust.
Common questions
How much does probate cost in New York?
Executor commissions under SCPA §2307(1): 5% of the first $100,000, 4% of the next $200,000, 3% of the next $700,000, 2.5% of the next $4,000,000 and 2% above $5,000,000. Attorney fees and Surrogate’s Court filing fees are separate and no published source for the attorney figure is cited here. See Probate Cost in New York.
Does New York have an estate tax?
Yes. N.Y. Tax Law §952(2)(B) sets the basic exclusion amount as $5,000,000 plus a cost-of-living adjustment measured against the consumer price index for calendar year 2010, so the figure moves each year and is not stated in the statute. Section 952 withholds the credit entirely from an estate whose New York taxable estate exceeds 105% of the basic exclusion amount — the “cliff”, at which point the entire New York taxable estate is taxed rather than only the excess.
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?
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? The Documents and What Each Does
- 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.