A client once came to my office after her father, a successful architect, passed away. He had a will—meticulously drafted—leaving everything to his children. His family believed the will made things simple. Instead, they spent the better part of a year in Surrogate’s Court, his assets frozen, while the public process of probate unfolded. His final wishes were eventually honored, but at the cost of time, privacy, and considerable expense.
A will is essential, but in my experience, it is rarely the entire story of a well-constructed estate plan. True stewardship of a family’s legacy requires a more deliberate approach, one that anticipates challenges beyond the simple distribution of assets. It involves building a structure designed not just for death, but for life and its contingencies.
Probate, Privacy, and the Power of a Trust
The first pillar is understanding what a will does and—more importantly—what it doesn’t do. A will is fundamentally a set of instructions for the Surrogate’s Court. It has no power until a judge validates it through the probate process. This process is public record, meaning anyone can see the details of the estate, its value, and its beneficiaries. For many families, particularly those in business or with public profiles, this lack of privacy is a significant concern.
This is why we often build estate plans around a revocable living trust. Assets held in a trust are not subject to probate. They pass to your chosen beneficiaries under the management of a trustee you select, according to the rules you establish. The transfer is private and efficient. A will is also vulnerable to challenge. Under New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, for example, a surviving spouse has a legal right to claim an “elective share” of the estate, regardless of what the will says. A trust, properly structured, provides a much stronger container for your intentions.
Stewardship for Life, Not Just After Death
Many people think of estate planning as something that only matters when they are gone. This is a critical oversight. A significant part of my practice is planning for incapacity—the possibility that you might become unable to manage your own financial or medical affairs. Without a plan, your family would be forced to petition a court to have a guardian appointed. This is another public, expensive, and often emotionally draining process.
A durable power of attorney and a health care proxy are the foundational documents for managing this contingency. By appointing an agent you trust to handle your finances and a proxy to make medical decisions, you retain control. You decide who steps in, and you define the limits of their authority. This isn’t just about paperwork; it’s about ensuring a seamless transition of stewardship if you are unable to exercise it yourself. It protects your dignity and shields your family from having to make wrenching decisions in a crisis without your guidance.
The New York Estate Tax Question
The federal government has an estate tax, and so does New York. They are not the same. As of 2024, the federal estate tax exemption is over $13 million per person, a figure so high that it affects very few families. New York’s exemption, however, is significantly lower. This gap catches many people by surprise.
What’s more, the state tax operates on a “cliff.” If the value of your taxable estate exceeds the exemption amount by more than 5%, the entire estate—not just the amount over the limit—becomes subject to tax. This can result in an unexpected and substantial tax bill that diminishes the legacy you intended to leave. Prudent planning involves strategies to mitigate this tax. This can include making lifetime gifts, establishing irrevocable trusts, or utilizing marital and charitable deductions. The goal is to be deliberate about how your assets are structured to minimize tax liability and maximize what you pass to the next generation.
The Hidden Risk in Beneficiary Designations
Finally, some of the most powerful estate planning tools are not in your will or trust at all. They are the beneficiary designation forms for your life insurance policies, IRAs, 401(k)s, and other retirement accounts. These assets pass directly to the person named on the form, completely bypassing probate and the terms of your will.
I have seen this create unintended consequences time and again. A person drafts a beautiful will leaving everything to their children, but their multi-million dollar IRA still lists an ex-spouse from a decade-old divorce as the beneficiary. The law is clear: the beneficiary form controls. That IRA will go to the ex-spouse, regardless of what the will says. An estate plan is a living system. It must be reviewed every few years—and always after major life events like a marriage, divorce, or the birth of a child—to ensure all its components are aligned with your current wishes.
A complete plan accounts for every asset, aligning your will, trusts, and beneficiary designations into a single, coherent strategy. It’s the only way to be certain your legacy will be managed as you intended.
A prudent first step is not to draft a new document from scratch, but to audit the ones you already have. My firm begins with new clients by reviewing their existing wills, trusts, and beneficiary designations to identify these kinds of gaps and ensure the documents reflect their true intentions.
