A New York estate plan checklist covers identifying assets and debts, naming beneficiaries, drafting a will with two witnesses, considering a revocable living trust, executing a health care proxy, and signing a durable power of attorney. New York has specific signing and witness rules for each document under the Estates, Powers and Trusts Law.
Before you sit down to create legal documents, it helps to work through a New York-specific checklist so you do not miss an important step, from naming a health care proxy to choosing between a will and a trust. Use this guide to gather what you need and understand New York's specific execution requirements before you sign anything.
Step 1: Identify Your Assets
List everything you own: real estate, vehicles, retirement accounts, stocks and bonds, life insurance, cryptocurrency, intellectual property, and household items. Include any share you hold in a family business or other business entity. Do not forget digital property like NFTs and monetized social media accounts if you want those addressed in your estate plan.
Step 2: Identify Debts and Liabilities
Debts often outlive the person who owed them. Identify personal debts, business debts that may be paid out of personal assets, and any outstanding tax liabilities, so your executor and heirs know exactly what needs to be settled before assets are distributed.
Step 3: Name Your Beneficiaries
A beneficiary is anyone you want to inherit specific property when you die. List each beneficiary alongside the property or share you want them to receive so your intentions are unambiguous once your documents are drafted.
Step 4: Decide Between a Will, a Trust, or Both
A last will and testament gives instructions for distributing your estate after death and still goes through probate, but a valid will makes that process faster and ensures the court follows your wishes rather than the state's default intestacy rules. New York's signing requirements, found in EPTL Section 3-2.1, require the testator to sign the will and have two attesting witnesses sign within a single 30-day period, after the testator declares to each witness that the document is their will.
When drafting your will, two decisions matter most:
- Naming an executor: Your executor takes control of your assets in probate court, distributes them to beneficiaries, and settles debts and taxes. Name an alternate in case your first choice cannot serve.
- Naming a guardian for minor children: Courts typically give full custody to a surviving parent, but you should still name alternate guardians in case that is not possible.
Step 5: Consider a Revocable Living Trust
A revocable living trust can help avoid probate in New York and keeps your estate details private, since a trust generally does not become part of the public record the way a probated will does. New York's execution rules for lifetime trusts, under EPTL Section 7-1.17, require the trust to be in writing and either acknowledged in the manner required for a real property conveyance or signed in the presence of two witnesses. If you use a revocable trust, name yourself as initial trustee and designate a successor trustee to take over after your death or incapacity.
Step 6: Execute a Health Care Proxy
A health care proxy is a person you appoint to make medical decisions for you if you become unable to communicate them yourself. This does not affect your day-to-day autonomy; the proxy only gains authority if you are incapacitated. Choose someone who understands your values, and talk with them before naming them so they know what you would want. Our guide on key estate planning terms can help if any of this language is unfamiliar.
Step 7: Sign a Durable Power of Attorney
A durable power of attorney lets an agent manage your financial affairs, and unlike a health care proxy, it can take effect as soon as you sign it, not only upon incapacity. New York requires specific formalities under General Obligations Law Section 5-1501B, including a required format, an acknowledgment similar to a real property conveyance, and signatures from the agent as well as the principal. Because a financial agent gains real power over your affairs immediately, use a durable power of attorney only when it is genuinely necessary, and consider limiting its scope if you want your agent to have narrower authority. For a deeper walkthrough of this specific document, see our guide to making a power of attorney in New York.
Step 8: Store Your Documents Securely
Keep copies of every signed document and make sure your attorney, agent, executor, and spouse know where to find them. Store originals in a fireproof and waterproof location, and consider keeping a secure digital backup as well.
Common Mistakes to Avoid
- Signing a will without meeting New York's two-witness, 30-day attestation window
- Creating a revocable trust and never transferring assets into it
- Naming a health care proxy without discussing your wishes with them first
- Granting a broad durable power of attorney when a narrower, limited one would do
- Storing your only copy somewhere no one else can find it
How FastWill Handles This
FastWill's online will builder walks New York residents through each of these documents, applying the state's specific signing and witness requirements automatically. If you are still deciding whether a trust makes sense for your situation, our guide to wills and trusts in New York covers the tradeoffs in more depth.
Frequently Asked Questions
How many witnesses does a will need in New York?
New York requires two attesting witnesses who sign within the same 30-day period, under EPTL Section 3-2.1.
Do I need a lawyer to make a will in New York?
Not necessarily. Many New Yorkers use an online will builder for a straightforward estate, though complex assets or family situations often benefit from an attorney's review.
Does a revocable living trust avoid probate in New York?
Assets properly transferred into a funded revocable trust generally pass to beneficiaries without probate. Assets never transferred into the trust still go through probate.
When does a durable power of attorney take effect in New York?
It generally takes effect once properly signed and acknowledged, unless the document specifies a contingency that must occur first.
What happens if I do not name an alternate executor?
If your named executor cannot or will not serve and you named no alternate, the court will appoint someone under New York law, which may not be who you would have chosen.
