Frequently Asked Questions

Question 1

What is estate planning and why do I need it?

Accepted Answer

Estate planning is the process of arranging for the management and distribution of your assets during your lifetime and after your death. A comprehensive estate plan typically includes a will, one or more trusts, a durable power of attorney, a health care proxy, and a living will. Without an estate plan, New York's intestacy laws will determine who inherits your assets — which may not reflect your wishes. Estate planning also allows you to minimize estate taxes, protect assets from creditors, and provide for loved ones with special needs.

Question 2

What is the difference between a will and a trust?

Accepted Answer

A will is a legal document that directs how your assets are distributed after your death. It must go through the probate process in Surrogate's Court before assets can be transferred to your beneficiaries. A trust, by contrast, is a legal arrangement in which a trustee holds and manages assets for the benefit of one or more beneficiaries. Assets held in a trust generally pass outside of probate, which can save time and expense and keep the transfer private. Trusts can also provide ongoing management of assets for minor children, individuals with disabilities, or beneficiaries who may not be ready to manage a large inheritance.

Question 3

What is a durable power of attorney?

Accepted Answer

A durable power of attorney is a legal document in which you (the principal) authorize another person (the agent) to manage your financial and legal affairs on your behalf. The word 'durable' means that the document remains effective even if you become incapacitated. Without a durable power of attorney, your family may need to seek a court-appointed guardian to manage your affairs if you become unable to do so yourself — a process that is costly, time-consuming, and public.

Question 4

What is a health care proxy and how does it differ from a living will?

Accepted Answer

A health care proxy designates a person (your health care agent) to make medical decisions on your behalf if you are unable to do so. A living will (also called an advance directive) expresses your wishes regarding specific end-of-life medical treatments, such as the use of artificial life support. Together, these documents ensure that your medical wishes are known and that someone you trust has the legal authority to advocate for you with medical providers.

Question 5

How often should I update my estate plan?

Accepted Answer

We recommend reviewing your estate plan every three to five years, or whenever a significant life event occurs — such as marriage, divorce, the birth or adoption of a child, the death of a beneficiary or named fiduciary, a substantial change in your financial circumstances, or a move to a different state. Tax laws also change periodically, which may affect the structure of your plan.

Question 6

What is the New York estate tax exemption?

Accepted Answer

New York State imposes its own estate tax separate from the federal estate tax. The New York estate tax exemption is adjusted annually for inflation. For 2024, the New York exemption is $6.94 million. Importantly, New York has a 'cliff' — if your taxable estate exceeds 105% of the exemption amount, the entire estate (not just the excess) is subject to New York estate tax. Careful planning is essential for estates that may be near or above the exemption threshold.

Question 7

What is Medicaid planning and why is it important?

Accepted Answer

Medicaid planning involves structuring your assets and income to qualify for New York Medicaid benefits, which can cover the cost of nursing home care and other long-term care services. The cost of nursing home care in New York can exceed $150,000 per year, and without planning, a lifetime of savings can be depleted quickly. Medicaid planning allows families to preserve assets for a surviving spouse or future generations while still qualifying for government benefits to cover care costs.

Question 8

What is the Medicaid five-year look-back period?

Accepted Answer

When you apply for Medicaid to cover nursing home care in New York, the state reviews all asset transfers made within the five years prior to your application. If you transferred assets for less than fair market value during that period, Medicaid will impose a penalty period during which you will be ineligible for benefits. This is why it is critical to begin Medicaid planning well in advance of any anticipated care need — ideally five or more years before you expect to need nursing home care.

Question 9

What is a Medicaid Asset Protection Trust (MAPT)?

Accepted Answer

A Medicaid Asset Protection Trust (MAPT) is an irrevocable trust designed to remove assets from your countable estate for Medicaid eligibility purposes. Once assets are transferred to a MAPT, they are no longer considered yours for Medicaid purposes — but only after the five-year look-back period has passed. You can retain the right to receive income from the trust assets during your lifetime, and the assets will pass to your beneficiaries at your death. A MAPT must be carefully drafted to comply with Medicaid rules.

Question 10

Can I protect my home from Medicaid estate recovery?

Accepted Answer

New York's Medicaid estate recovery program allows the state to seek reimbursement from a Medicaid recipient's estate for benefits paid. However, there are several strategies to protect your home, including transferring it to a Medicaid Asset Protection Trust, transferring it to a child who has lived in and cared for you in the home for at least two years, or taking advantage of other exemptions. The right strategy depends on your specific circumstances and must be implemented with careful attention to the look-back rules.

Question 11

What is a special needs trust?

Accepted Answer

A special needs trust (SNT) is a trust designed to hold assets for the benefit of a person with a disability without disqualifying them from means-tested government benefits such as Supplemental Security Income (SSI) and Medicaid. There are two main types: a first-party SNT, funded with the beneficiary's own assets (such as a personal injury settlement), and a third-party SNT, funded by family members or others. Both types allow the beneficiary to receive supplemental support — for things like education, recreation, and personal care — without losing essential government benefits.

Question 12

What is probate and how does it work in New York?

Accepted Answer

Probate is the court-supervised process of validating a deceased person's will and overseeing the distribution of their estate. In New York, probate proceedings are conducted in the Surrogate's Court of the county where the decedent resided. The executor named in the will files a petition with the court, the will is admitted to probate, and the executor receives letters testamentary — the legal authority to act on behalf of the estate. The executor then gathers assets, pays debts and taxes, and distributes the remaining assets to the beneficiaries named in the will.

Question 13

What happens if someone dies without a will in New York?

Accepted Answer

If a person dies without a will (intestate), their estate is distributed according to New York's intestacy laws, which establish a fixed order of priority among surviving relatives. A spouse and children are typically the primary heirs. The Surrogate's Court will appoint an administrator (rather than an executor) to manage the estate. The administrator has the same duties as an executor but is bound by the intestacy statute rather than the decedent's expressed wishes. Dying without a will can result in assets passing to unintended beneficiaries and can complicate the administration process.

Question 14

How long does probate take in New York?

Accepted Answer

The duration of probate in New York varies depending on the complexity of the estate, the number of beneficiaries, whether the will is contested, and the workload of the Surrogate's Court. A straightforward, uncontested estate may be resolved in six to twelve months. More complex estates — particularly those involving estate tax returns, real property in multiple states, or contested proceedings — can take two years or more. Proper planning, including the use of trusts and beneficiary designations, can help assets pass outside of probate and avoid these delays.

Question 15

What are the duties of an executor?

Accepted Answer

An executor has significant legal and fiduciary responsibilities, including: filing the will with the Surrogate's Court and obtaining letters testamentary; notifying beneficiaries and creditors; gathering and inventorying the decedent's assets; paying valid debts, expenses, and taxes; filing the decedent's final income tax return and any required estate tax returns; managing estate assets prudently during the administration period; and distributing the remaining assets to the beneficiaries. Executors can be held personally liable for breaches of their fiduciary duties, so it is important to seek legal guidance.

Question 16

What should a buy-sell agreement include?

Accepted Answer

A buy-sell agreement is a contract among business co-owners that governs what happens to a co-owner's interest upon certain triggering events, such as death, disability, retirement, divorce, or a desire to sell. A well-drafted buy-sell agreement should address: the triggering events that activate the agreement; the purchase price or the method for determining it (such as a formula or appraisal); the identity of the buyer (the remaining owners, the business itself, or a third party); the payment terms; and the funding mechanism (often life insurance). Without a buy-sell agreement, the death or departure of a co-owner can create serious disruption and conflict.

Question 17

Is a prenuptial agreement enforceable in New York?

Accepted Answer

Yes, prenuptial agreements are enforceable in New York if they meet certain requirements. The agreement must be in writing, signed by both parties, and acknowledged before a notary public in the same manner as a deed. Courts will scrutinize prenuptial agreements for procedural fairness (was each party represented by independent counsel? was there full financial disclosure? was the agreement signed under duress?) and substantive fairness (are the terms unconscionable?). A well-drafted agreement, negotiated with adequate time before the wedding and with independent counsel for each party, is far more likely to be upheld.

Question 18

Can a prenuptial agreement address spousal support (alimony)?

Accepted Answer

Yes, a prenuptial agreement can include provisions regarding spousal support (also called maintenance or alimony) in the event of divorce. However, New York courts retain the authority to modify or set aside maintenance provisions that are unconscionable at the time of enforcement — meaning that a provision that seemed fair at the time of signing may be challenged if circumstances change dramatically. We advise clients to draft maintenance provisions carefully, with realistic projections of future circumstances, to maximize enforceability.

Question 19

What is the difference between separate property and marital property in New York?

Accepted Answer

In New York, marital property is generally all property acquired by either spouse during the marriage, regardless of whose name it is in. Separate property includes property owned before the marriage, property received as a gift or inheritance during the marriage (as long as it is kept separate), and property designated as separate in a valid prenuptial or postnuptial agreement. Upon divorce, marital property is subject to equitable distribution — meaning it is divided fairly, though not necessarily equally. Separate property is generally not subject to division. A prenuptial agreement can expand the definition of separate property and provide greater certainty about how assets will be treated in a divorce.

Estate Planning

Elder Law & Medicaid

Probate & Administration

Business & Prenuptial

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