Estate Planning: Wills and Advance Directives

Why Estate Planning Matters

Estate planning is not only for the wealthy. If you own a home, have children, or want a say in who decides for you, a few well-drafted documents can spare your family uncertainty at a hard time.

Without a plan, New York law fills in the blanks, and your family may need a court's help to handle your affairs. The firm's estate planning work concentrates on the documents most families need: wills and advance directives.

• Last will and testament
• Health care proxy
• Living will

Your Last Will and Testament

A will directs who receives your property, names the executor who carries out your wishes, and can name a guardian for minor children. Anyone 18 or older and of sound mind and memory may make a will in New York (EPTL § 3-1.1).

New York is strict about signing. Under EPTL § 3-2.1, you sign at the end of the will before at least two attesting witnesses (or acknowledge your signature to each of them) and declare that the document is your will. Both witnesses must sign within one 30-day period.

Health Care Proxy and Living Will

A health care proxy names a trusted person, your health care agent, to make medical decisions if you cannot. Under Public Health Law § 2981, a competent adult signs and dates it before two adult witnesses, and the person named as agent cannot be a witness. The agent's authority begins only if it is determined that you lack capacity to make health care decisions.

A living will puts your wishes about life-sustaining treatment in writing. New York has no living will statute, but its highest court has recognized written instructions that provide clear and convincing evidence of a person's wishes.

What Happens Without a Will in New York

Without a will, New York's intestacy statute, EPTL § 4-1.1, decides who inherits, and the result may not match your wishes, especially in blended families. Unmarried partners, stepchildren, and friends are not included.

• Spouse and children: your spouse receives $50,000 plus one-half of the balance, and your children share the rest.
• Spouse, no children: your spouse receives everything.
• Children, no spouse: your children share everything, with a deceased child's share passing to that child's descendants.
• No spouse or descendants: your parents inherit; if neither survives, your brothers and sisters or their descendants, then more distant relatives.

Naming a Guardian for Minor Children

For many parents, this is the most important reason to make a will. Domestic Relations Law § 81 lets a parent name, by will, a guardian of a minor child's person and a guardian of the child's property, and they can be different people.

If the other parent survives you, that parent ordinarily continues to care for the child. A guardian named in a will generally takes over only if, when the will is admitted to probate, the other parent has died or been adjudicated incompetent. Naming a backup guardian is also wise.

Your Home and Your Estate Plan

How your home is titled matters. Property owned jointly with a right of survivorship generally passes to the surviving owner outside the will, so your deed and your will should work together.

Since July 19, 2024, Real Property Law § 424 has allowed transfer on death deeds, which name a beneficiary to receive real property at the owner's death. The deed must be signed before two witnesses and a notary and recorded with the county clerk before the owner's death, and it cannot be revoked by a will. Because Mr. Moore's practice focuses on real estate law, he can review how your property is titled as part of your plan.

Reviewing Your Plan After Life Changes

Under EPTL § 5-1.4, a divorce or annulment generally revokes provisions in favor of a former spouse, including naming that spouse as executor, guardian, or agent. Most other life events do not update your documents on their own, so review your plan after:

• Marriage or divorce
• The birth or adoption of a child or grandchild
• The death or incapacity of a named executor, guardian, or agent
• Buying or selling real estate
• A move to or from New York

How the Process Works

Drawing on more than 20 years of practice, Mr. Moore listens to your goals and explains your options in plain English.

• Consultation: discuss your family, your property, and who you trust to serve as executor, guardian and health care agent.
• Drafting: Mr. Moore prepares your will and advance directives and walks you through each document.
• Signing: you sign with the required witnesses, and a notary where needed. Will witnesses can also sign an affidavit under SCPA § 1406 that the court may accept in place of their testimony.

Frequently asked questions

This page provides general information about New York law, not legal advice for your situation. Reading it does not create an attorney-client relationship.