There is a particular kind of phone call that comes into a probate attorney’s office. A son or daughter calls because a parent has just died. The parent owned a house in Bayside, or Forest Hills, or Whitestone — a house that has appreciated dramatically over thirty or forty years. The parent did not have a will. There is a surviving spouse. There may be other children. There is no plan.
What follows is months in Queens County Surrogate’s Court, sometimes a year or longer, often involving family disagreements about who should administer the estate, who is entitled to what, and what happens to the house. The legal fees are real. The emotional cost is worse. And almost all of it could have been avoided with a few hours of estate planning while the parent was still alive.
If you are putting off the conversation about estate planning, here is the case for having it sooner rather than later, and what New York law actually requires.
Without a will, New York decides for you.
The technical name is “intestate succession,” and it is governed by Estates, Powers and Trusts Law Section 4-1.1. If you die without a will in New York, your assets are distributed according to a fixed statutory formula. The surviving spouse takes the first $50,000 plus half of the remaining estate. The children split the other half. If there is no spouse, the children take everything; if there are no children, the parents; if no parents, the siblings, and so on through more remote relatives.
This formula sounds reasonable until you apply it to a real Queens family. A surviving spouse may need the entire estate to keep the house and live comfortably; under intestate distribution, half of it goes to children. A blended family with children from prior marriages can produce results no one would have wanted — a stepchild who lived with the deceased for thirty years takes nothing, while a biological child the deceased had not seen in decades takes a full share. Same-sex couples who married after years of partnership can find that pre-marriage assets pass under rules designed for traditional family structures.
The formula is mechanical. It is not always fair.
The will is the foundation, not the ceiling.
A properly drafted will lets you decide who gets what, who manages the estate (the executor), who serves as guardian for minor children, and how specific bequests are handled. New York’s requirements for a valid will are spelled out in EPTL Section 3-2.1: the testator must be at least 18, of sound mind, the will must be in writing, signed at the end by the testator, witnessed by at least two witnesses who sign within thirty days of each other, and executed with certain formalities.
Holographic wills (handwritten, unwitnessed) are not valid in New York except in narrow circumstances involving members of the armed forces or mariners at sea. Wills signed without witnesses, signed in the wrong place, or executed without the formalities are routinely rejected by Surrogate’s Court. The technical requirements matter, and the cost of doing it correctly is far smaller than the cost of doing it wrong.
Why a trust often makes sense in New York.
A revocable living trust is an estate planning tool that holds your assets during your lifetime and distributes them at death without going through Surrogate’s Court. The advantages are real: probate is avoided, the distribution is private rather than public record, the process is faster, and the assets are easier to manage if you become incapacitated.
For Queens residents in particular, where home values often push estates above thresholds that complicate probate, a trust can save the estate substantial time and expense. The downside is upfront effort — the trust has to be funded, meaning that title to assets has to actually be transferred into the trust during your lifetime. A trust that is signed but never funded is just paper.
Healthcare proxies and powers of attorney are the documents you need before you die.
Estate planning is not just about what happens after death. The healthcare proxy authorizes someone to make medical decisions for you if you cannot make them yourself. A statutory short form power of attorney authorizes someone to handle your financial affairs. New York has specific statutory requirements for both — the power of attorney form in particular has to comply with General Obligations Law Section 5-1501B, and forms that are out of date or improperly executed can be rejected by banks and other institutions exactly when you need them most.
These documents are the ones that matter when someone is hospitalized, in cognitive decline, or temporarily incapacitated. Every adult in New York should have them. They are inexpensive to prepare and almost free to update.
The federal estate tax does not affect most people. The New York estate tax might.
Federal estate tax exemptions are high — in the multiple millions per individual — and most estates do not pay federal estate tax. New York’s estate tax exemption is lower, around $7 million for deaths in 2024, and it has a notable cliff: estates that exceed the exemption by more than 5 percent lose the entire exemption rather than just the excess. For Queens families with appreciated real estate, retirement accounts, and life insurance, the New York tax can be a meaningful concern even when the federal tax is not. Planning for it requires real attention, particularly for couples where coordinating exemptions across two estates can save substantial tax.
Beneficiary designations override your will.
This is the part of estate planning most people get wrong. Retirement accounts, life insurance policies, and certain bank accounts pass by beneficiary designation, regardless of what your will says. A 401(k) with an ex-spouse listed as beneficiary will pass to the ex-spouse even if your will leaves everything to your current spouse. Beneficiary designations need to be reviewed and updated whenever life changes — marriage, divorce, the birth of a child, a death in the family — and the work of doing so takes minutes.
If you have been putting off estate planning in Queens, the right time to handle it is when you do not need it yet. The cost of doing it now is small. The cost of not doing it can be enormous.