In New York, the most costly estate planning mistakes include dying without a valid will, failing to update beneficiary designations after major life changes, and naming an unprepared executor. All of these can send your estate through Surrogate’s Court and into a messy, drawn-out probate process your family will have to deal with while they are grieving.
Most New Yorkers know they need an estate plan. Far fewer actually have one (or one that works anyway). The gap between having documents and having the right documents is where families pay the price, sometimes in probate delays, unnecessary taxes, or court battles that could have been avoided entirely.
At Seligson Law, our New York estate planning attorneys see these gaps regularly, and the cost of fixing them after the fact is almost always higher than getting it right the first time. These are the five mistakes we see often and what New York law says about each one.
1. Assuming Intestacy Laws Will Do the Job
If you die without a will or living trust in New York, the state does not simply pass everything to your spouse or children. New York’s intestacy laws under EPTL § 4-1.1 follow a fixed formula.
If you are married with children, your spouse receives the first $50,000 plus half the remaining estate, and your children split the other half. That means without a valid will or trust, someone you never intended to benefit may inherit ahead of someone you love.
For unmarried partners, the situation is starker: New York intestacy law provides no inheritance rights to a partner who is not legally married, regardless of how long you have been together.
2. Forgetting That Beneficiary Designations Override Your Will
This is one of the most expensive planning mistakes in New York. Retirement accounts, life insurance policies, and payable-on-death bank accounts all pass directly to whoever is named as beneficiary, regardless of what your will says.
These beneficiary designations are binding agreements with the financial institution, and New York courts consistently uphold them over anything written in a will.
Your will has no power over these assets, because they transfer outside your estate and bypass the Surrogate’s Court entirely. If your designation names an ex-spouse or a deceased parent (or simply says “estate”), that asset will likely end up in probate, putting your family in a hard position.
Ken Seligson and the team at Seligson Law help clients audit all beneficiary designations as part of a complete estate plan, not just the documents. Contact us to get started.
3. Not Updating Your Documents After Major Life Changes
The will or trust you signed ten years ago may reflect a life that looks nothing like the one you have now. If you have gone through a divorce, New York automatically revokes any gifts, beneficiary designations, and fiduciary appointments you made to your former spouse, but that protection only kicks in if the financial institution receives written notice of your divorce.
Without that notice, a bank or insurer can legally pay your former spouse and face no liability for doing so. If you have gotten married, divorced, had a child, lost a named executor, or seen a major shift in your finances, your estate plan needs a fresh look.
A document that no longer reflects your life may still be technically valid, but it can also produce results you never intended and leave your family dealing with the fallout.
4. Overlooking Your Digital Assets
When New York enacted the Fiduciary Access to Digital Assets Act, it gave executors the legal right to access a deceased person’s digital assets on the basis that their estate plan explicitly grants that authority. Without doing that, your executor may be legally blocked from accessing your email accounts, crypto, cloud storage, online banking, or the digital side of your business.
Cryptocurrency is where this gets especially serious. Without your access credentials and clear authorization in your estate plan, those assets could be gone for good. There is no customer service line to call and no court order that can recover a lost wallet.
You should have an inventory of your digital assets, including where accounts are held, how to access them, and where any hardware wallets or seed phrases are stored securely. That inventory belongs in your estate plan (and probably nowhere else for your financial safety while you’re alive).
5. Choosing the Wrong Executor or Trustee (or None)
Under SCPA § 707, New York law disqualifies certain people from serving as your executor. You cannot name someone who is:
- A minor
- Legally incompetent
- A non-U.S. citizen who lives outside of New York (a non-domiciliary alien), unless they serve alongside a co-executor who does live in New York
- Someone the court finds unfit due to substance abuse, dishonesty, improvidence, or a lack of basic understanding needed to do the job
As of 2021, a felony conviction alone is no longer an automatic disqualifier in New York. Beyond those thresholds, the choice is entirely yours, which means the burden of choosing wisely falls on you, and naming someone out of family loyalty rather than actual ability can be a disservice to them and everyone else you love.
If you do not name an executor or list no backup: The Surrogate’s Court will appoint an administrator for you under SCPA § 1001, starting with your surviving spouse, then your children, then other relatives in order of priority.
Your New York Estate Plan Only Works If You Get These Things Right
All five of these mistakes are avoidable. But they are only avoidable if you have the right plan in place before something goes wrong. Fixing them after the fact almost always costs more than doing it right the first time.
Ken Seligson works with individuals, families, and business owners across New York to build estate plans that hold up when it matters most. Call 213-293-6692 or send us a message today. The starting point is a conversation.
Frequently Asked Questions About New York’s Most Common Estate Planning Mistakes
1. Can I just let New York’s intestacy laws handle my estate instead of writing a will?
You can, but that might not be in your family’s best interest. New York’s intestacy laws follow a fixed formula that has nothing to do with your personal wishes. If you are married with children, your spouse does not automatically inherit everything from you, and unmarried partners receive nothing, regardless of how long you have been together. The state does not know your family, your relationships, or what you actually want. A will does.
2. How often should I update my New York estate plan?
Most estate planning attorneys recommend reviewing your documents every three to five years and after any major life event. Even though New York automatically cancels any gifts or appointments made to a former spouse after divorce, it does not update every element of your plan, and it only protects you if your bank, insurer, or retirement plan provider receives written notice of the divorce.
3. Can I write my own will in New York without a lawyer?
Technically, yes. New York’s execution requirements are straightforward. The harder problem is what most people don’t know to include. A self-drafted will often fails to account for how assets actually transfer at death, leaves out incapacity planning, or conflicts with beneficiary designations the person never thought to update. An attorney makes sure that all I’s are dotted and T’s crossed.
4. Does New York have an estate tax, and how does it affect my plan?
Yes. New York has its own estate tax separate from the federal one, with a current exemption threshold of around $7.35 million. If your estate exceeds that threshold by even a small amount, the entire estate gets taxed, not just the excess. Strategic planning through trusts and gifting strategies can help protect your estate from that cliff.
5. Does my New York estate plan cover assets I own in other states?
Your will generally governs personal property regardless of where it is located, but real estate is different. Property you own in another state is subject to that state’s laws and may require a separate probate proceeding. A properly funded revocable living trust can help you avoid that by holding the property in your trust, bypassing the need for multiple probate proceedings entirely.
6. What happens if my named executor becomes a felon after I appoint them?
Your executor must remain qualified throughout the entire administration of your estate. Under SCPA § 711, if your executor becomes disqualified or unfit, including through a felony conviction related to fraud or financial misconduct, any interested party, such as a beneficiary, co-fiduciary, or creditor, can petition the Surrogate’s Court to have their authority suspended or revoked. This is one of several reasons why naming a backup executor matters.
