When writing an estate plan in New York, you should consider the size of your estate, the identity of your beneficiaries, your preferences about end-of-life care, and the impact of state and federal laws on your tax burden. In this article, we'll answer the basic questions about New York estate plans.
1. What is Estate Planning?
According to the American Bar Association, "Estate planning covers the transfer of property at death as well as a variety of other personal matters and may or may not involve tax planning."The most important document for estate planning purposes is your Last Will and Testament. A New York Will explains how you want your property disposed of at the time of your death. If you have a Will, your estate must still go through probate, but the process will be more efficient than it is when you pass away without a Will. New York estate planning includes documents such as a Living Will and Healthcare Proxy to specify your healthcare preferences and designate someone to make medical decisions on your behalf. Careful estate plans also include special provisions for minor children, such as naming a Legal Guardian for their care.
2. Are Estate Taxes a Concern in New York?
New York has a state estate tax with an exemption threshold that changes annually. In 2023, the exemption amount is $6.5 million. This means if the value of your assets is under that amount, the assets are exempt from state tax. There is also a federal estate tax that may apply to your estate. Federal estate taxes only apply to assets valued at over $12.92 million in 2023.
3. When I Die, What Happens to My Estate in New York?
There are a few basic things you need to know about New York probate law:
●The New York probate system is referred to as the Surrogate's Court. If you have a Will when you pass away, your estate will be admitted to Surrogate's Court for probate. Your executor will manage your estate, including paying creditors and distributing your assets to your beneficiaries.
● If you die without a Will, your estate will go through probate, but the court will appoint an administrator to oversee the process. The administrator is legally required to distribute your property in accordance with New York law.
● New York also has a Small Estate process. This applies when a person's assets are valued at $50,000 or less, and the person did not own any real estate.
4. What Assets Go Through Probate in New York?
The assets that go through the probate process in New York include the following:
● Real property that is held solely by the person who passed away
● Real property that is held by tenants in common, including the decedent
● Personal property, like jewelry, antiques, collectibles, and furniture
● Bank accounts, including checking and saving
● Vehicles, including automobiles and boats
● An interest in a company, LLC, or partnership if the interest is held in the decedent's name
These are the assets that you can distribute through your New York Will.
5. Does All of My Property Pass Via a Will in New York?
No, some property doesn't go through the probate process in New York. Property that typically does not pass by a Will includes:
Jointly Owned Property: If you own property jointly with someone else, such as a house or a bank account with rights of survivorship, the property typically passes directly to the surviving joint owner(s) upon your death, bypassing the probate process and your Will.
Property in a Living Trust: Assets you have placed in a Revocable Living Trust will pass according to the terms of the trust document, not your Will.
Beneficiary Designations: Certain assets, such as life insurance policies, retirement accounts (e.g., 401(k), IRAs), and payable-on-death (POD) or transfer-on-death (TOD) accounts, allow you to designate beneficiaries. When you pass away, these assets go directly to the named beneficiaries and are not governed by your Will.
6. Can I Disinherit Someone in My New York Will?
Yes, you can generally disinherit relatives who are otherwise able to inherit from you. You can disinherit your adult children, but New York law doesn't allow you to disinherit your spouse. Your spouse has a "right of election" when you pass away, meaning they can claim either $50,000 or one-third of the value of your estate.
7. When Should I Update My New York Will?
Estate planning is not a one-and-done event. Since life circumstances change, your estate plan should be updated to reflect major changes. Generally, it's good to review your estate plan every few years. If you get married or divorced, become a parent or grandparent, or acquire property, you should update your Will. You should also update the Will if you move across state lines.
8. What is a Power of Attorney Used for in New York?
A Power of Attorney, or POA, is a legal form that authorizes someone to make decisions on your behalf. The person making the POA and giving up the authority is known as the "principal." The person who is receiving the right to make decisions is known as the "agent." A POA is used when you need someone else to make decisions on your behalf. If, for instance, you have a sudden illness or injury and are unable to make decisions, you can give your agent the authority to do so on your behalf. Without a POA, your family would need to go to court to have a guardian appointed, which could take significant time.
9. What is a New York Living Will?
A Living Will is a document that contains written instructions that explain your health care wishes. A Living Will becomes effective when you are unable to make your own decisions. A physician must confirm that you have an incurable condition. Most people decide to make a Living Will at the same time they make their Last Will and Testament.
10. Can I Make a New York Will Online?
Yes, you can make a New York Will online, without the help of a lawyer, as long as you follow New York law. To make a Will legally valid in New York, follow these guidelines:
● Age and Mental Capacity: You must be over age 18 and of "sound mind and memory" to make a Will in New York. In other words, you must have the legal capacity to understand what you are doing when deciding how to distribute your property. As long as you understand the purpose of a Will and the relationship you have with the people you are giving the property to, you have sufficient legal capacity to make a New York Will.
● Two Competent Witnesses: You need two witnesses to the Will. They should be at least 18 years old and not be beneficiaries of the Will. In New York, the witnesses do not need to sign at the same time as each other.
● Testator Signature: You must sign and date the Will at the end of the document. If you include instructions or any writing below the signature, the court will ignore that part of the Will.
