New York State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Minimum age requirement to:

Holographic will recognized, but only for members of the Armed Forces (Estates, Powers & Trusts, Section 3-2.2)

State taxes:

Estate tax: Up to 21%, but not less than any federal credit for state death taxes (Tax, Article 26, Section 951 to 961)
State gift tax:Inheritance tax: No inheritance tax (Tax, Article 26, Section 951 to 961)
- Imposes a state gift tax(Tax, Article 26, Section 951 to 961)
- Anatomical Gift Act (Section 45-43-4300 to 45-43-4309)
Inheritance tax: No inheritance tax (Tax, Article 26, Section 951 to 961)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Estates, Powers & Trusts, Section 4-1.1)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - $50,000 and one-half (1/2) of your estate to surviving your spouse, and
  - $50,000 and the other one-half (1/2) of your estate, split equally among the surviving children or to their children according to their per stirpes share
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - $50,000 and one-half (1/2) of your estate to surviving your spouse, and
    - $50,000 and the other one-half (1/2) of your estate, split equally among the surviving children or to their children according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your spouse
    - No children, but at least one of your parents survives you:
      - All of your estate will pass to your spouse
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, your grandparents equally or to their children according to their per stirpes share

Who must be named as a beneficiary in your will:

Surviving spouse (Estates, Powers & Trusts Section 5-3.2), andChildren, born or adopted (Estates, Powers & Trusts Section 5-1.1-A)
- Surviving spouse must be given either:
  - $50,000, or
  - One-third (1/3) of your estate; see statute for details (Estates, Powers & Trusts Section 5-1.1-A)
Children, born or adopted (Estates, Powers & Trusts Section 5-1.1-A)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced spouse (Estates, Powers & Trusts, Section 5-1.4)
You get married without changing your will that does not provide for your new spouse:
- Does not revoke the will and surviving spouse has right to take elective shares of the estate under state intestate law (Estates, Powers & Trusts, Section 5-1.3)

Witnesses:

Minimum number of witnesses required: Two (Estates, Powers & Trusts, Section 3-2.1)
Are witnesses allowed to be beneficiaries?: Yes; however, any beneficiary named in the will who is also a witness, then the portion of the will to the witness beneficiary will be void, unless there are two other disinterested witnesses (Estates, Powers & Trusts, Section 3-3.2)
Requirements to be a witness, witnesses must:
- be an adult, and
- not be entitled to anything in your will

Property ownership (Real Property, Section 240b):

Common law state
Joint ownership of property is presumed to create a tenancy in common, unless there is clear language that a joint tenancy has been created
Joint ownership between spouses is presumed to be held as a tenancy by the entirety, unless there is clear language otherwise
Bank account deposits held jointly are payable to any survivor named in the bank account
Tenancy by the entirety is recognized in this state, but not for personal property

Other types of wills:

Self-proving wills recognized: Yes, recognized (SCPA, Section 1406)
Living will: Order Do Not to Resuscitate (Health Care, Article29-B, Sections 2960-2979). Requires diagnoses and medical records documenting your terminal illness (or injury), or your permanent state of unconsciousness, or minimally conscious due to brain damage and will never regain the ability to make decisions
Health Care Proxy (Chapter 45, Article 29-C, Section 2980)
Durable Power of Attorney (Sections 24A-5-1501 to 24A-5-1506)