New York living trusts & estate documents

Living trust law in New York

A revocable living trust holds your home, accounts, and other property during your life, you stay in full control as trustee and can change or revoke it any time, then passes it to your beneficiaries without probate when you're gone. In New York, trusts are governed by the New York Estates, Powers and Trusts Law (EPTL), Article 7.

Avoiding probate in New York

Probate in New York is governed by the EPTL and Surrogate's Court Procedure Act (SCPA) and handled by the Surrogate's Court. Probate proceeds in Surrogate's Court in the decedent's county.

Voluntary administration, New York's small estate procedure under SCPA Article 13, is available when the decedent left personal property having a gross value of $50,000 or less, not counting the property set off to the family under EPTL 5-3.1(a) (SCPA 1301); it does not cover any interest in real property, though owning real property does not prevent its use for the personal property (SCPA 1302). Assets held in a funded living trust pass to your beneficiaries without probate, whatever the size of the estate. Many New York homeowners set one up for that reason. New York also authorizes a transfer-on-death deed (N.Y. Real Property Law § 424) to pass real estate outside probate. A living trust does the same for every asset, not just real estate.

In New York, creditors generally have 7 months from the date of issue of letters to file claims against the estate (SCPA § 1802), one reason court probate takes time that a funded trust avoids.

Estate and inheritance tax in New York

New York levies its own estate tax on top of the federal one, and at a much lower exemption: New York has a state estate tax. Tax Law § 952(c)(2)(B) sets the basic exclusion amount for deaths on or after January 1, 2019 at $5,000,000 multiplied by one plus the cost-of-living adjustment; the New York State Department of Taxation and Finance publishes the resulting figure, which is $7,350,000 for dates of death on or after January 1, 2026, through December 31, 2026. New York uses a "cliff": estates that exceed the exclusion by more than 5% lose the exclusion entirely and the whole estate becomes taxable. The separate federal estate tax reaches only estates above $15 million per person (2026, adjusted yearly), so most families never owe it.

Protecting a surviving spouse in New York

A surviving spouse in New York who is left out of the will can instead claim an elective share of the greater of $50,000 or one-third of the net estate under N.Y. EPTL § 5-1.1-A, a protection the will itself cannot override.

New York also sets aside a family exemption of household furniture, appliances, clothing and similar items not exceeding $20,000 in aggregate value, family books, pictures and software not exceeding $2,500, domestic and farm animals with their necessary food for sixty days, farm machinery, one tractor and one lawn tractor not exceeding $20,000 in aggregate value, one motor vehicle not exceeding $25,000, and money not exceeding $25,000 (reduced by any excess value of the other items) for the surviving spouse or, if there is none, the decedent's children under 21 (N.Y. EPTL § 5-3.1), items that are not assets of the estate but vest in and are set off to them.

Signing your New York documents

1. Sign the living trust. EPTL 7-1.17: lifetime trust executed and acknowledged before a notary, or signed by two witnesses. Template uses the notary acknowledgment (RPL §309-a certificate).
2. Sign the will. Two witnesses (EPTL 3-2.1 requires at least two attesting witnesses); notarized self-proving affidavit included (standalone and pour-over wills). Today every will other than a nuncupative or holographic will must be in writing and witnessed this way; EPTL 3-2.1, as amended by 2025 N.Y. Laws ch. 637 and S8887 (2026 N.Y. Laws ch. 89, signed February 13, 2026), will also recognize electronic wills authorized by Part 6 of EPTL Article 3 effective December 12, 2027, and the two-witness requirement remains.
3. Sign the power of attorney. Sign and date your Durable Power of Attorney before a Notary Public AND two adult witnesses; New York requires both. Also write your initials on the initials line in Article Three. A witness may not be anyone named in the document as an agent or as a person who may receive gifts. The Notary Public may serve as one of the two witnesses. Your agent cannot act until the agent has also signed the document before a Notary Public; the agent does not have to sign on the same day as you.
4. Sign the health care documents. Sign your Health Care Proxy and Living Will in the presence of two adult witnesses, who then sign the witness statements (each part of the form that shows witness lines is signed the same way). The eligibility rules printed on the form govern who may serve.
5. Follow your package instructions. Your package includes page-by-page signing instructions written for New York. Follow those as the authoritative guide.

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