I once worked with the children of a successful Brooklyn business founder. The man had built a remarkable company from nothing, but his estate plan was an afterthought—a simple will he’d signed twenty years prior. In the intervening two decades, he had divorced and remarried. When he passed away unexpectedly, his family discovered that his old will still named his ex-wife as the sole beneficiary. What followed was not a celebration of his life, but a protracted and painful fight in Kings County Surrogate’s Court.
This family’s story is difficult, but not uncommon. Many people assume estate planning is simply drafting a document and filing it away. In my experience, that is a dangerous misconception. A durable plan is not a static document. It is a dynamic structure built on stewardship and foresight. It is about being intentional with the legacy you leave behind, not just the assets.
Your Plan or the State’s Plan
If you die without a will or trust, it does not mean a plan for your assets is absent. It means the State of New York has one for you. This is called dying “intestate,” and the rules are laid out in our Estates, Powers and Trusts Law (EPTL). The state’s plan is rigid, impersonal, and rarely aligns with a family’s actual needs.
Under EPTL § 4-1.1, the law dictates a strict hierarchy for who inherits your property. For instance, a surviving spouse receives the first $50,000 of the estate plus half of the remainder, with the children inheriting the rest. If you have no spouse or children, assets move to parents, then siblings, and so on. The statute makes no exceptions for a strained relationship with a relative, a lifelong friend you considered family, or a charitable cause you supported for years. The court’s only job is to follow the letter of the law. Creating your own plan—through a will or a trust—is the only way to replace the state’s default assumptions with your own deliberate instructions.
The Fiduciary Is Not an Honorary Role
Clients often tell me they want to name a child as their executor or trustee because they “trust them.” While trust is essential, it is not enough. A fiduciary—the person legally responsible for managing your estate or trust—has a demanding job with serious legal obligations. It is not an honor; it is a significant burden.
Your trustee has a fiduciary duty to act in the best interests of the beneficiaries. This involves marshalling assets, paying debts and taxes, making prudent investment decisions, keeping meticulous records, and communicating with beneficiaries. If they make a mistake, even an honest one, they can be held personally liable for any financial loss. Choosing a fiduciary requires a clear-eyed assessment of their financial acumen, their impartiality, and their willingness to take on a complex role. Often, a professional or corporate trustee is a more prudent choice, insulating family members from conflict and liability.
Life Changes, So Must Your Plan
An estate plan is a snapshot of your life at a particular moment. But life does not stand still. A birth, a death, a marriage, a divorce, or a significant change in your finances can render an old plan obsolete or—as with the Brooklyn founder—actively harmful.
New York law anticipates some of these changes. For example, EPTL § 5-1.4 automatically revokes any bequests to a former spouse in a will upon divorce. The law, however, does not automatically update beneficiary designations on life insurance policies, retirement accounts, or bank accounts. These pass outside of probate and are controlled by separate contracts. An outdated beneficiary designation on a 401(k) can easily override the clear instructions in a new will, leading to outcomes you never intended. A resilient plan requires periodic review—at least every three to five years, or whenever a major life event occurs.
Privacy Is an Intentional Choice
When an estate goes through probate, the will becomes a public document. Anyone can go to the Surrogate’s Court and view its contents—the nature of your assets, the identity of your beneficiaries, and the terms of their inheritance. For many families, this public exposure is undesirable.
A revocable living trust, by contrast, is a private instrument. Its administration does not involve the courts. Assets are distributed to your beneficiaries efficiently and confidentially by the trustee you selected. This privacy protects your family from public scrutiny and can reduce the potential for disputes. Choosing between a will-based plan and a trust-based plan is fundamentally a choice about how much privacy and control you wish to maintain for your family after you are gone. Stewardship.
Thinking through these issues is the real work of estate planning. The documents are merely the tools we use to execute your decisions. A prudent first step is to review the beneficiary designations on all your accounts—from life insurance to retirement funds. We can guide you through a beneficiary audit to ensure your assets are aligned with your intentions.
