Do you need a Will if you live in New York*

*This is the attorney’s personal blog. Nothing written herein constitutes legal advice. Access to this blog article doesn’t create attorney client relationship and should not be relied upon without consulting a competent attorney, who will be able to explain the exceptions and the nuances that would apply in each individual situation.

Simply put: without one, New York State writes it for you. A default formula decides who gets what, a judge chooses who raises your minor kids, and your family spends months up to a few years in Surrogate's Court proceedings seeking a decree from a judge on things you could have settled in a few brief meetings with your attorney.

If I have your attention, let's dive in deeper:

1. Most married New Yorkers think that their spouse will inherit everything and, in turn, will divide it among the kids at his or her death. Not true. Dying without a will automatically splits your estate between your spouse and your kids regardless of their age. New York State gives your spouse $50k plus half of your estate and your children split the other half in equal shares. If your kids are under 18, the court will direct that a guardianship account be established and supervised. The good news: the court protects the money until they're 18. The bad news: the court protects the money until they're 18 at which point it is handed to them outright, at an age when I personally would have made excellent, independent, long-horizon financial decisions:).

   
   

2. The estate tax laws are brutal and uniquely New York. New York has its own estate tax on top of the federal one. If you are well under $7.35M (as of 2026), you don't have to worry about it but please remember to check with your attorney periodically to see whether any changes are on the horizon. If you might be getting near $7.35M, please pay close attention. Below $7.35M, you will pay no estate tax. If you fall between $7.35M and $7.72M, only the difference is taxed. If you go over $7.72M, you will pay tax on the whole estate from dollar one. It's called a "cliff" for a reason. Regardless of whether your assets pass to the beneficiaries directly (through beneficiary designations or TODD), they are included into the calculation. Your house, retirement accounts, and life insurance all count. Homeowners with appreciated property get caught by the "cliff". There are a few sensible options to stay away from the "cliff". Discuss with your attorney.

   
   

3. A will is where you nominate a guardian for your minor children. Without one, Surrogate's Court decides — and if relatives disagree, it can lead to a litigation. Equally important is that someone needs to assume care of your minor children from day one without having to wait for Letters of Guardianship signed by a judge. Ask me what language I suggest including in the will.