New York Wills vs. Trusts
New York presents unique estate planning challenges and opportunities for its residents. The Empire State imposes its own estate tax with a lower exemption threshold of $5.85 million compared to the federal level, making tax planning particularly important. With provisions for simplified probate for estates under $30,000, strict requirements for trust asset titling, and limited recognition of holographic and oral wills, New York residents need carefully crafted plans that account for these distinctive provisions. Understanding the state’s specific rules for interested witnesses, trust establishment, and asset protection is essential for creating an effective estate plan that protects your legacy.
Table of Contents
US Map For The Different Will and Trust Requirements by State
Interested in other state’s law regarding wills and trusts? Click the ABOVE state you want to be taken to.Â
New York Will Requirements
A New York Last Will and Testament should include:
- Age and Capacity: Testator must be “mentally competent” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed at the end of the document by the testator or by someone acting at the direction of the testator in the testator’s presence
- Witnesses: Must be signed by two witnesses, who must either observe the testator’s signature itself or the testator acknowledging that the signature is valid
Witness Requirements
For New York wills:
- The witnesses must sign the will within 30 days of each other
- The New York statute asks for each witness to affix his or her residential address to the document
- A missing witness address does not invalidate an otherwise compliant will
Under New York law, a person who stands to benefit under a will can act as a witness. However, any bequest to the interested witness is void. An interested witness can, though, still receive whatever intestate share he or she would have received had the testator not had a will (not to exceed the amount of the voided bequest).
Self-Proving Wills
New York does not require wills to be notarized. But if a will is accompanied by a notarized affidavit executed by the witnesses and declaring that the will is genuine and was validly executed, the will is treated as “self-proving” in probate—which means the witnesses do not need to testify before the probate court to establish the will’s authenticity (unless it is challenged).
Need help creating the right estate plan for your New York family?
Our estate planning specialists can help you navigate New York’s unique laws and create a personalized strategy.
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Amendment, Revision, and Revocation of New York Wills
Amending a New York Will
New York wills may be amended by:
- Executing a codicil (a written addendum to an existing will that satisfies all formalities required for creation of a valid will)
- Creating a new will intended to amend the prior will
Revoking a New York Will
New York wills can be revoked by:
- Executing a new will intended to revoke the prior will
- The testator’s execution of a document stating the testator’s intent to revoke the will and meeting all formalities required to create a valid will
- Physical destruction of an existing will by the testator (or by someone acting at the testator’s direction in the testator’s presence)
New York law specifically cites intentional “burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction” as satisfactory methods of revoking a will.
Effect on Codicils
If a will is revoked, all codicils associated with the revoked will are also deemed to be revoked.
Holographic and Oral Wills
Limited Recognition
New York law recognizes holographic and nuncupative (oral) wills but only in very limited circumstances. To qualify:
- A holographic will must be written entirely in the handwriting of the testator
- The provisions of an oral will must be clearly established by two or more witnesses
Importantly, neither holographic nor nuncupative wills are effective testamentary instruments in New York unless made under one of the following circumstances:
- By a member of one of the branches of the United States armed forces during a period of war or armed conflict in which U.S. servicemembers are engaged
- By a person serving with or accompanying armed forces engaged in war or armed conflict
- By a mariner while at sea
Even if otherwise valid and effective, an oral or holographic will expires one year after the testator is discharged from or ceases accompanying the armed services—or three years after the will is made by a mariner at sea.
New York Trust Requirements
Trust Creation Requirements
In New York, living trusts must be created through:
- A written document signed by the trust’s grantor
- Unless the grantor is also the sole trustee, the trust instrument must also be signed by at least one trustee
- The trust instrument must either meet the requirements of New York law for conveyance of real estate or be signed by two witnesses
Grantor Requirements
Living trusts may be created in New York by any natural person aged 18 or older. A New York trust can be created for any lawful purpose.
Trust Amendment
Any revocation or amendment to a New York living trust must be made in writing and executed by the person authorized to revoke or amend the trust. Unless the trust instrument says otherwise, the amendment or revocation instrument must satisfy the execution requirements necessary to create a trust.
Trust Asset Transfer
Any assets to be transferred into a trust must be formally titled into the name of the trust—such as by executing a real estate deed, re-titling financial accounts, or otherwise executing a written assignment specifically identifying the property. A simple recitation of trust property within the trust instrument is insufficient.
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Special Considerations
Summary Probate Proceedings
Simplified Probate
Under New York law, an estate’s executor can request a simplified, summary probate proceeding if the estate’s gross value, after deducting real estate and amounts reserved for surviving family members, is less than $30,000. If an estate qualifies for streamlined probate, the executor can pay creditors and distribute assets to beneficiaries without first going through the full, formal administration process.
New York Estate Taxes
Dual Tax System
Large estates in New York can potentially be liable for estate taxes at both the state and federal levels. The exemption amount for New York’s estate tax is $7.16 million, about half of the $13.99 million federal exemption for 2025. New York’s estate tax includes a “cliff” feature. If an estate exceeds the exclusion amount by more than 5% (approximately $7.52 million in 2025), the entire estate becomes subject to taxation, not just the excess.
Moreover, New York estate-tax exemptions are not portable between spouses, as with federal exemptions, and the state-level tax is applied to the entire estate (not just the excess above the exemption) if the total value exceeds the exemption by more than 5%.
As a result, mitigating estate taxes and maximizing exemption value (such as through A/B trusts) is a concern for a higher percentage of New York estates than for estates in most other jurisdictions.
Re-Titling of Trust Assets
Formal Asset Transfer
In New York, assets intended for transfer to a living trust must be formally and officially transferred by a written instrument or they will not be removed from the probate estate. Reference to the assets in the trust will not accomplish the transfer.
Self-Settled Trusts
Limited Asset Protection
If a grantor of a trust is also beneficiary, the trust will not provide protection against that grantor’s creditors under New York law.
Need help creating the right estate plan for your New York family?
Our estate planning specialists can help you navigate New York’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| New York Special Feature | Limited holographic and oral wills; simplified probate under $30K | Strict asset re-titling requirements; estate tax planning for NY’s $5.85M threshold |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for New York residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
New York presents unique challenges for estate planning, particularly with its state-level estate tax that has a significantly lower exemption threshold ($5.85 million) than the federal estate tax. The state’s “cliff” provision, which taxes the entire estate if it exceeds the exemption by more than 5%, makes careful tax planning essential for many New York residents.
The state’s strict requirements for trust asset titling emphasize the importance of proper trust funding. Simply mentioning assets in a trust document is insufficient—formal transfers through appropriate legal instruments are mandatory for assets to be removed from the probate estate.
While New York does provide for simplified probate for smaller estates (under $30,000), its limitations on self-settled trusts for asset protection highlight the need for sophisticated planning strategies when creditor protection is a concern.
The state’s limited recognition of holographic and oral wills—restricted primarily to military personnel and mariners—underscores New York’s emphasis on formal will execution requirements and the importance of proper estate document preparation.
When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under New York law to ensure your estate plan takes full advantage of available provisions while minimizing exposure to the state’s substantial estate taxes.
Ready to Protect Your New York Family’s Future?
Join the thousands of New York families who have secured their legacy with our personalized estate planning strategies. Our approach helps you avoid probate, protect assets, and ensure your wishes are carried out exactly as you intend.
- ✓ Avoid costly probate and family disputes
- ✓ Maintain privacy of your financial matters
- ✓ Protect assets during incapacity
- ✓ Create safeguards for children and loved ones
Explore Estate Planning Strategies
Free consultation with our estate planning specialists
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
FAQs: New York Wills and Trusts
Q: What are the requirements for a valid will in New York?
A: A New York will must be in writing, signed at the end by the testator (18+ and mentally competent) or by someone at their direction in their presence, and attested by two witnesses who sign within 30 days of each other. A notarized affidavit can make it self-proving.
Q: Does New York recognize holographic or oral wills?
A: New York recognizes holographic (handwritten) and oral (nuncupative) wills only for armed forces members during war, or mariners at sea, expiring one or three years after service ends, respectively, unless the testator dies or loses capacity.
Q: How can I avoid probate in New York?
A: Avoid probate with living trusts (properly titled), joint ownership with right of survivorship, or payable-on-death (POD) accounts for bank accounts and securities. Small estates under $30,000 can use simplified probate.
Q: What is New York’s estate tax?
A: New York imposes an estate tax on estates over $7.16 million, lower than the federal $13.99 million (2025), taxing the entire estate if it exceeds the limit by more than 5%, with no portability between spouses. New York’s estate tax includes a “cliff” feature. If an estate exceeds the exclusion amount by more than 5% (approximately $7.52 million in 2025), the entire estate becomes subject to taxation, not just the excess.
Q: Why is re-titling trust assets important in New York?
A: In New York, trust assets must be formally re-titled (e.g., via deeds or account changes) to the trust’s name, or they remain in the probate estate—listing them in the trust document alone isn’t enough.
Q: Can self-settled trusts protect assets in New York?
A: No, New York law does not protect self-settled trusts (where the grantor is a beneficiary) from creditors, limiting their use for asset protection compared to some other states.
