New York Elder Law, Wills and Inheritance: Probate and Estate Rules for 2026
Short answerIt depends. New York elder law covers wills, estates and long-term care planning. A will needs an adult of 18 or older and two witnesses under EPTL § 3-2.1. Without a will, EPTL § 4-1.1 decides who inherits, and a court-supervised probate usually follows.
Last verified: October 30, 2026 against EPTL §§ 3-1.1, 3-2.1, 4-1.1, 5-1.1-A and 5-1.4, SCPA §§ 205 and 1301, and NY Tax Department and Department of Health guidance
New York elder law is not one statute. It is a set of rules on wills, inheritance, trusts, powers of attorney and paying for long-term care. This page explains the core New York wills and inheritance laws, what happens when someone dies without a will, and the planning documents older adults and families ask about most.
Key facts
- Who can make a will: anyone 18 or older who is of sound mind and memory.
- Witnesses: at least two, within one 30-day period.
- Spouse with no will and children: $50,000 plus half of the rest.
- Small estate shortcut: personal property of $50,000 or less may qualify for voluntary administration.
- 2026 estate tax threshold: $7,350,000 for deaths in 2026.
- Medicaid nursing home look-back: 60 months.
What makes a will valid in New York?
A valid will is in writing, signed by an adult of sound mind, and witnessed by at least two people. EPTL § 3-1.1 sets the minimum age at 18, and EPTL § 3-2.1 sets the signing steps.
- You sign at the end of the will, or someone signs your name in your presence and at your direction.
- You sign in front of each witness or tell each witness the signature is yours.
- You tell each witness that the document is your will.
- At least two witnesses sign, and the witnesses attest within one 30-day period.
A witness who adds a home address helps later, but leaving it off does not invalidate the will. Text added after your signature generally has no effect, apart from an attestation clause.
Looking ahead: the current text of EPTL § 3-2.1 shows that electronic wills under a new part of the same article are excluded from this section effective December 12, 2027. Until then, follow the paper steps above.
What happens if someone dies without a will in New York?
The estate passes by intestacy under EPTL § 4-1.1. Funeral costs, debts and administration expenses come out first, and the rest goes to relatives in a fixed order.
| Who survives | Who inherits |
|---|---|
| Spouse and children | Spouse gets $50,000 plus half of the rest; children share the other half |
| Spouse, no children | Spouse gets everything |
| Children, no spouse | Children share everything |
| Parents only | Parents get everything |
| Siblings (or their children) only | Siblings share everything, whole and half blood alike |
| Grandparents or their descendants | Split between the two sides of the family |
The spouse must be legally married. New York does not form common law marriages inside the state, so read our common law marriage page if that is your situation. Divorce also matters: EPTL § 5-1.4 cancels gifts and executor roles for a former spouse in a will, as if the former spouse had died first. Our divorce laws page covers the divorce side.
Can a spouse be left out of a New York will?
Only partly. Under EPTL § 5-1.1-A, a surviving spouse can claim an elective share of the greater of $50,000 or one-third of the net estate.
The spouse must elect within six months after letters are issued, and no later than two years after death, unless the court extends the time. A spouse can waive this right only in a signed and acknowledged writing. The right is not available if the person who died was not domiciled in New York, with a narrow exception.
What is probate in New York and where does it happen?
Probate is the Surrogate’s Court process that confirms a will and appoints an executor. Under SCPA § 205, the proper county is the one where the person lived at death. A Brooklyn resident’s estate, for example, belongs in Kings County.
For small estates, SCPA § 1301 allows voluntary administration when the personal property is worth $50,000 or less. Property that must be set aside for a spouse or young children under EPTL § 5-3.1 does not count toward that limit.
Does New York have an estate tax?
Yes. The New York Tax Department lists a basic exclusion amount of $7,350,000 for deaths in 2026, and $7,160,000 for deaths in 2025. The return and any tax are due nine months after death, using Form ET-706. Estates below the threshold generally do not file.
How do trusts and elder care planning work?
A lifetime trust must be in writing and signed by the person creating it. Under EPTL § 7-1.17, signatures are acknowledged like a deed, or the trust is signed before two witnesses. A trustee also signs unless the creator is the only trustee.
For long-term care, the Department of Health says the Medicaid transfer-of-assets look-back for nursing home care is 60 months. Families often ask whether an irrevocable trust changes that, and the answer depends on the trust and the dates, so talk to a New York elder law attorney before you move assets.
What documents protect you while you are alive?
A will does nothing before death. Two lifetime documents matter more for older adults.
- Power of attorney: the statutory short form under
General Obligations Law § 5-1501Bmust be signed, acknowledged and witnessed by two people, and the agent must sign it too. - Health care proxy: under
Public Health Law § 2981, a competent adult signs in front of two adult witnesses, and the person named as agent cannot be a witness.
Property issues like a house or a deed are covered in our real property law basics, and the full money and consumer section lists related pages.
Frequently asked questions
Is a handwritten will valid in New York?
A handwritten will must still meet the signing and two-witness steps in EPTL § 3-2.1. Handwriting alone does not make a will valid. Check with a New York attorney before relying on one.
Do I need a lawyer to make a will in New York?
The law does not require one. You must still meet the age, signing and witness rules. A lawyer helps with trusts, a blended family or a large estate, where a drafting error can cost the family a court fight.
How long do you have to claim an elective share?
A spouse must elect within six months after letters are issued, and no later than two years after death, under EPTL § 5-1.1-A. The court can extend the time if you ask before it runs out.
Does divorce cancel a will in New York?
Partly. EPTL § 5-1.4 cancels gifts and fiduciary roles for the former spouse and treats that person as having died first. The rest of the will stays in place unless you change it.
Is there a look-back for Medicaid in New York?
Yes. The Department of Health states a 60-month look-back for nursing home Medicaid. Transfers made in that window are reviewed when you apply.
Is there a New York estate tax?
Yes. The 2026 basic exclusion amount is $7,350,000. Estates under that threshold generally do not owe New York estate tax, but a larger estate must file within nine months.
What changed on this page
- October 30, 2026: first publication, checked against the EPTL, SCPA, General Obligations Law and Public Health Law sections named above, the NY Tax Department estate tax page and the Department of Health transfer guidance. Spotted a mistake? See our corrections page and editorial policy.
If this affects you
To open or follow an estate, contact the Surrogate’s Court in the county where the person lived. For estate tax questions, contact the NY State Department of Taxation and Finance, and for Medicaid long-term care, the NY Department of Health. A New York-licensed estate planning or elder law attorney can review your documents, and the New York State Bar Association lawyer referral service can help you find one.
