Wills and Trusts Legal Services at Morgan Legal Group

A Last Will and Testament is governed by EPTL § 3-2.1, which prescribes the execution ceremony in unforgiving detail: signed at the end by the testator, in the presence of at least two attesting witnesses, with publication that the instrument is the testator's will, and all signatures occurring within a thirty-day window. A will that misses any element is invalid, and the Surrogate's Court will not save it through harmless-error doctrine — New York has not adopted that rule.

We draft wills that name primary and successor executors, appoint guardians for minor children under SCPA § 1701, exercise powers of appointment, address tangible personal property by separate memorandum, and fund testamentary trusts for minors or disabled beneficiaries. Every will we prepare is signed with a self-proving affidavit under SCPA § 1406 at the same ceremony, so the witnesses do not have to be located decades later when the will is admitted to probate.

Wills do not avoid probate. They direct it. Any asset titled in the decedent's name alone passes under the will and through the Surrogate's Court in the county of domicile — New York County for Manhattan, Kings for Brooklyn, Queens, Bronx, Richmond for Staten Island, plus Nassau, Suffolk, and Westchester for the suburban estates we handle most often. To bypass probate entirely, the asset must be retitled into a trust or carry a non-probate transfer mechanism.

A revocable living trust is a substitute for probate, not for a will. The grantor transfers title to assets — real estate, brokerage accounts, business interests — into the name of the trust during life. On death, the successor trustee distributes those assets under the trust instrument without ever filing a probate petition. The plan only works to the extent the trust is actually funded; a beautifully drafted trust with no assets retitled into it is a private rehearsal for probate, not an alternative to it.

For New Yorkers who own real property in multiple jurisdictions, a revocable trust is often essential. Without it, the family files an SCPA § 1402 probate in New York and ancillary probates in every other state where the decedent owned real estate. With a properly funded trust, all of that property passes outside of court oversight.

Revocable trusts do not protect assets from creditors and do not save estate or income tax during the grantor's lifetime. For tax purposes, a revocable trust is transparent — the grantor is treated as the owner under IRC §§ 671-679. The benefit is procedural: privacy, continuity, and avoidance of court delay.

When the goal is to remove assets from the taxable estate or qualify for Medicaid after the 60-month look-back imposed by Social Services Law § 366, the right instrument is an irrevocable trust. We draft Medicaid Asset Protection Trusts (MAPTs) that preserve the grantor's right to income while removing principal from the resource count, Irrevocable Life Insurance Trusts that keep policy proceeds out of the gross estate, and grantor-trust variants that shift income to lower-bracket beneficiaries while preserving estate-tax benefit.

Under EPTL § 7-1.16 — the rule that flipped New York's default after 1997 — a trust created in New York is irrevocable unless the instrument expressly reserves the right to revoke. This default makes drafting precision essential: a single missing sentence can lock or unlock the entire structure. EPTL § 7-1.9 supplies a modification and decanting mechanism that allows trustees to pour assets from one irrevocable trust into a second trust with better terms, providing flexibility the original drafter could not have anticipated.

Special Needs Trusts are governed federally by 42 USC § 1396p(d)(4)(A) and (C), which authorize first-party and pooled trusts that hold assets without disqualifying the beneficiary from Medicaid or SSI. Third-party SNTs — funded by parents or grandparents and never with the beneficiary's own money — carry no payback obligation to the state and are the cornerstone of every plan involving a child with disabilities.

A complete New York estate plan is not a will alone. It is a coordinated set of instruments: the Last Will and Testament under EPTL § 3-2.1, one or more trusts as needed, a statutory short-form Power of Attorney under GOL § 5-1501B with gifting authority for large transfers written into its Modifications section, a Healthcare Proxy under Public Health Law Article 29-C, a Living Will, and properly aligned beneficiary designations on every retirement account, life-insurance policy, and transfer-on-death brokerage account.

Beneficiary designations override the will. A 401(k) naming an ex-spouse pays the ex-spouse regardless of what the will says, because ERISA preemption and the contract itself control the disposition. We audit every client's beneficiary designations at the same time we draft the will, because a plan that ignores those forms is not a plan.

The Healthcare Proxy and Living Will operate during incapacity, not after death. We draft them to authorize the agent to consent to or withhold life-sustaining treatment, organ donation under the Anatomical Gift Act, and the disposition of remains. Without these documents, a New York family confronting a medical crisis ends up in Article 81 guardianship proceedings under the Mental Hygiene Law — a process that takes months and costs more than the documents that would have prevented it.

The most common defect in New York estate plans is not drafting failure but funding failure. Trusts that hold no assets do nothing. We provide funding letters to banks, brokerage houses, and title companies, prepare and record deeds for real estate transfers, retitle business interests, and update beneficiary designations — all at the same engagement, not as a separate later project.

Every will we draft is executed in our office under attorney supervision, with two disinterested witnesses and a notary, and accompanied by a self-proving affidavit under SCPA § 1406. We store the original in our fireproof vault at no additional charge and provide certified copies to the client and the named executor. When the time comes to probate, the executor walks into Surrogate's Court with a complete file.

Estate planning is not a one-time transaction. Life events — marriage, divorce, the birth of a child, a beneficiary's disability, a substantial change in net worth, a move out of state — require updates. We review every client's plan at no charge after any major life change, and we recommend a full review every three to five years even when nothing obvious has changed.