A complete New York estate planning checklist for 2026 comes down to four coordinated documents — a will, one or more trusts, a durable power of attorney, and a health care proxy — assembled with an eye toward New York’s estate tax so your family inherits assets, not problems. The “smart” part is not simply having these documents; it is sequencing and structuring them efficiently to avoid the predictable, expensive mistakes that catch high-net-worth New Yorkers off guard. This guide walks you through each item, the controlling New York statute, and the strategic decisions that separate a plan that merely exists from a plan that actually works.
At Morgan Legal Group, led by Russel Morgan, Esq., we build plans the way a tax-aware architect builds a house: every component is engineered to fit the others. Here is the 2026 checklist we use.
The Four Pillars of a Coordinated New York Plan
A scattered collection of forms is not a plan. The power comes from coordination — naming consistent fiduciaries, titling assets to match your trusts, and making sure your tax exposure is addressed before you sign. The table below is your at-a-glance roadmap.
| Document | Controlling NY Law | What It Does | The Smart Move |
|---|---|---|---|
| Last Will & Testament | EPTL §3-2.1 | Directs who inherits; names an executor and guardians | Use it as a “pour-over” backstop to your trust, not your only plan |
| Revocable Living Trust | EPTL Article 7 | Avoids probate; private; seamless management if you’re incapacitated | Fund it — an unfunded trust does nothing |
| Irrevocable Trust | EPTL Article 7 | Tax reduction, asset protection, Medicaid eligibility | Start the 5-year Medicaid look-back clock early |
| Durable Power of Attorney | GOL §5-1513 | Lets an agent manage finances if you can’t | Use the 2021 statutory short form; add gifting authority deliberately |
| Health Care Proxy | NY Public Health Law Art. 29-C | Appoints an agent for medical decisions | Keep it separate from the financial POA |
1. Your Will — The Foundation (EPTL §3-2.1)
Under EPTL §3-2.1, a valid New York will requires the testator to sign at the end of the document, in the presence of (or acknowledged to) two attesting witnesses, with publication — meaning you declare to the witnesses that the document is your will. Skip a formality and the document can fail.
The strategic point: if you die without a will, intestacy under EPTL Article 4 decides who inherits — a rigid statutory formula that may send assets to relatives you never intended to benefit and that ignores stepchildren, partners, and charities entirely. A will is the floor of any plan. Learn more on our wills page.
2. Trusts — Probate Avoidance and Tax Strategy (EPTL Article 7)
This is where “smart” planning earns its name. New York recognizes trusts under EPTL Article 7, and the type you choose depends on your goal:
- Revocable living trust: Avoids the cost, delay, and public exposure of probate and lets a successor trustee step in instantly if you become incapacitated. Important caveat — a revocable trust provides no estate-tax savings, because you still control the assets.
- Irrevocable trust: The workhorse for tax reduction, asset protection, and Medicaid planning. Because Medicaid imposes a five-year look-back, the strategic move is to act early — the clock does not start until assets are transferred.
- Supplemental Needs Trust (EPTL 7-1.12): Preserves a disabled beneficiary’s eligibility for government benefits while still providing for their quality of life.
Choosing and funding the right trust is the single highest-leverage decision most families make. See our trusts page for the full breakdown.
3. Durable Power of Attorney (GOL §5-1513)
A power of attorney is your financial safety net. Under GOL §5-1513, a New York POA is durable by default, meaning it survives your incapacity — exactly when you need it most. New York’s 2021 statutory short form modernized the document and tightened the rules on third-party acceptance.
The strategic nuance: gifting authority is not automatic. If your plan relies on your agent making gifts (for tax or Medicaid purposes), that authority must be granted deliberately and correctly. Details are on our power of attorney page.
4. Health Care Proxy (NY Public Health Law Article 29-C)
A health care proxy, governed by NY Public Health Law Article 29-C, appoints an agent to make medical decisions for you if you cannot speak for yourself. This is a distinct document from your financial POA — one person handles your money, and your chosen agent (often the same trusted individual, but through a separate instrument) handles your care. See our healthcare proxy page.
The 2026 Tax Trap Every New Yorker Must Understand
Here is the most expensive mistake in New York estate planning — and the reason the “smart” angle matters.
For deaths on or after January 1, 2026 through December 31, 2026, New York’s basic exclusion amount is $7,350,000. Estates below that pay no New York estate tax. But New York does not phase the exemption out gently. There is a cliff at 105% of the exclusion — $7,717,500. An estate that exceeds the cliff loses the entire exemption and is taxed from the first dollar, at progressive rates of 3% to 16%.
The practical danger zone is the narrow band between $7,350,000 and $7,717,500, where a relatively small amount of “extra” estate value can trigger a six-figure tax bill on the whole estate. Smart planning — through lifetime gifting, trusts, and charitable bequests — keeps an estate safely below the cliff.
Two more facts shape the strategy:
- New York has no gift tax. Lifetime gifting is a powerful way to shrink a taxable estate.
- But gifts made within 3 years of death are added back to the taxable estate. Timing matters — early gifting is safer gifting.
For a deeper dive, read our NY estate tax guide.
Your 2026 Action Checklist
Work through these in order:
- Inventory your assets, beneficiaries, and current titling.
- Draft or update your will to meet EPTL §3-2.1 formalities.
- Decide on a trust — revocable for probate avoidance, irrevocable for tax and Medicaid protection.
- Execute a durable POA using the 2021 statutory short form, with gifting authority addressed.
- Sign a health care proxy under PHL Article 29-C.
- Run the estate-tax numbers against the $7,350,000 exclusion and the $7,717,500 cliff.
- Fund your trusts — retitle accounts and update beneficiary designations.
- Review annually and after any major life or law change.
This checklist applies across all of New York State — see our NY statewide guide for county-level considerations.
Frequently Asked Questions
Do I really need both a will and a trust in New York?
Often, yes. A revocable trust avoids probate and keeps your affairs private, while a “pour-over” will (valid under EPTL §3-2.1) acts as a backstop to capture any assets not titled in the trust. Used together, they are far stronger than either alone.
What happens if I die without a will in New York?
Your estate passes under intestacy rules in EPTL Article 4 — a fixed statutory formula that ignores your personal wishes and may exclude partners, stepchildren, and charities entirely.
Is the $7,350,000 exemption the same as the cliff?
No, and the difference is critical. The exemption is $7,350,000 for 2026 deaths. The cliff sits at 105% — $7,717,500. Cross the cliff and you lose the entire exemption; your estate is taxed from dollar one at 3% to 16%.
Can I just gift money away to lower my estate tax?
New York has no gift tax, so lifetime gifting is a legitimate tool — but gifts made within three years of death are added back to your taxable estate. Effective gifting requires advance planning, not last-minute moves.
Build Your 2026 Plan With Morgan Legal Group
A New York estate plan is only as strong as the coordination behind it. Russel Morgan, Esq., and the team at Morgan Legal Group design tax-aware, fully integrated plans that keep your estate below the cliff and your family out of probate court.
Schedule your 30-minute consultation with Russel Morgan, Esq. and turn this checklist into a finished, coordinated plan.
Further reading from Morgan Legal Group: how trusts fit an estate plan.