What is the New York Estates, Powers and Trusts Law (EPTL)?

The EPTL is New York's comprehensive trust and estate statute, codified at NY EPTL §§1-1.1 through 14-1.1. The EPTL covers will execution, intestate succession, trust creation and administration, fiduciary duties, perpetuities, and creditor rights. Trusts in New York are also subject to the Surrogate's Court Procedure Act (SCPA) for court-supervised administration.

How does New York's Surrogate's Court differ from probate court in other states?

Each New York county has a dedicated Surrogate's Court that handles wills, trusts, estates, guardianships, and adoptions. Surrogate's Courts are specialized rather than general-jurisdiction courts. The probate process is detailed and court-supervised, with required filings including the petition for probate, citation to interested parties, accounting requirements, and final decree. Probate in New York City and surrounding counties typically takes 9 to 18 months for a routine estate.

Does New York recognize Domestic Asset Protection Trusts?

No. New York is not a DAPT state. New York does not authorize self-settled spendthrift trusts to shield the grantor's own assets from the grantor's own creditors. New York EPTL §7-3.1(a) explicitly provides that a transfer to a self-settled spendthrift trust is void as against the grantor's creditors. New York residents seeking DAPT protection must establish the trust in a DAPT state and navigate the choice-of-law and conflict-of-law analysis.

Revocable vs Irrevocable Trust in New York: EPTL, NY Estate Tax Cliff, Surrogate's Court (2026)

Q: Does New York have a state estate tax?

Yes. New York imposes a state estate tax on the estates of New York residents and on New York-situs property of non-residents. The 2026 New York estate tax exemption is $7,160,000 per person (NY Tax Law §952(c)). Estates above the exemption are taxed at graduated rates from 3.06% to 16%. New York is one of only 12 states with an estate or inheritance tax.

Q: What is the New York estate tax cliff?

Under NY Tax Law §952(c), the New York estate tax exemption phases out for taxable estates between 100% and 105% of the basic exclusion amount. If the taxable estate exceeds 105% of the exemption ($7.518 million in 2026, calculated as $7.16M × 1.05), the entire estate is subject to New York estate tax with no exemption available. This 'cliff' creates a steep marginal tax rate near the exemption: an estate at 105.01% of the exemption pays NY estate tax on the entire estate value, not just the excess.

New York has a state estate tax with a 'cliff' rule and a $7.16 million exemption. The cliff creates a punishing marginal rate just above the exemption. The state's Surrogate's Court system imposes specialized probate administration. Here is the 2026 framework.

Not legal or tax advice. New York trust law interacts with NY estate tax, federal estate tax, the Surrogate's Court system, and EPTL-specific provisions. The NY estate tax cliff in particular requires careful planning. Consult a qualified New York estate planning attorney.

The New York Estate Tax Cliff: A Unique and Punishing Rule

NY Tax Law §952 imposes a state estate tax on the New York taxable estate of every NY resident decedent and on the NY-situs property of non-resident decedents. The 2026 basic exclusion amount is $7,160,000 per person (the exclusion is adjusted annually for inflation and approximated to the nearest $10,000). The tax rates are graduated from 3.06% to 16% on a sliding scale, applied to the taxable estate above the exclusion.

The cliff rule, under NY Tax Law §952(c)(2), provides that the basic exclusion is phased out for estates between 100% and 105% of the exclusion. If the taxable estate equals or exceeds 105% of the exclusion (for 2026, $7,518,000 = $7,160,000 × 1.05), the entire exclusion disappears and the New York estate tax applies to the full taxable estate from dollar one.

The cliff produces an extreme marginal tax rate near the threshold. An estate exactly at the exclusion ($7,160,000) pays $0 New York estate tax. An estate at 105% of the exclusion ($7,518,000) pays approximately $678,000 in New York estate tax (16% × roughly $7.518M, with graduated rate adjustments) on the entire $7.518M taxable estate. The additional $358,000 of estate value above the exclusion produces an additional $678,000 of NY estate tax, an effective marginal rate of approximately 189%. The cliff is sometimes called the "death trap" by New York estate planning practitioners.

Planning around the cliff is one of the principal NY-specific estate planning concerns. Common approaches include: (a) lifetime gifting to reduce the taxable estate below the cliff, (b) charitable giving via charitable lead trust or charitable remainder trust to reduce the taxable estate below the cliff, (c) credit-shelter trust planning for married couples to fully use both spouses' exemptions, and (d) careful timing of asset valuations and discounts for closely-held business interests.

The New York Estates, Powers and Trusts Law (EPTL)

The New York Estates, Powers and Trusts Law is the principal New York statutory framework for wills, trusts, intestate succession, and fiduciary administration. Key provisions for trust planning include: EPTL §7-1.1 (creation of express trusts), §§7-1.5 to 7-1.18 (trust administration), §7-1.16 (modification and termination of irrevocable trusts), §7-3.1 (validity of spendthrift trusts and limits on self-settled spendthrift trusts), and §7-2.4 (trustee powers).

New York adopted limited portions of the Uniform Trust Code, but has not enacted a comprehensive UTC framework. The EPTL is older and more idiosyncratic than the UTC, with provisions that differ from the modern Uniform Trust Code framework adopted by 35+ other states. Practitioners moving between New York and UTC states must navigate the substantive differences.

The New York Surrogate's Court System

Each New York county has a dedicated Surrogate's Court handling wills, trusts, estate administration, guardianships of incapacitated adults, adoptions, and related matters. Surrogate's Courts are specialized rather than general-jurisdiction. The procedural rules are set by the Surrogate's Court Procedure Act (SCPA) and the Uniform Rules for Surrogate's Courts.

Probate of a New York will involves: (a) petition for probate filed in the Surrogate's Court of the decedent's county of residence, (b) citation served on all distributees and interested parties, (c) any objections heard and adjudicated, (d) decree admitting the will to probate and appointing the executor, (e) inventory of the estate filed with the court, (f) interim and final accountings to the court (which can be informal accountings approved by all beneficiaries or formal court-supervised accountings), and (g) final decree releasing the executor.

Routine probate in New York City counties (especially Manhattan and Brooklyn) typically takes 9 to 18 months and costs $5,000 to $25,000 in attorney fees on a moderate estate. Complex or contested estates can take years and cost substantially more. The Surrogate's Court system provides strong creditor and beneficiary protection but at significant cost in time and money. This is a principal driver of NY revocable trust use for clients with significant assets.

Revocable Trusts in New York: Privacy and Probate Avoidance

A NY revocable trust avoids the Surrogate's Court probate process for assets held in the trust. The trustee continues administration after the grantor's death without court supervision (subject to the trust terms and any beneficiary disputes). Trust administration is private; the probate process is public record. For high-profile or wealthy clients in New York, the privacy benefit of a revocable trust is often as important as the cost savings.

A NY revocable trust during the grantor's life is a grantor trust under IRC §§671-679 and is disregarded for federal and New York income tax purposes. All trust income reports on the grantor's individual return (Form 1040 federally, NY Form IT-201 for NY residents). The trust does not file a separate fiduciary return.

At the grantor's death, the revocable trust becomes irrevocable and is a non-grantor trust going forward. The trust files NY Form IT-205 (fiduciary income tax return) annually until terminated. New York's trust income tax follows the federal trust tax brackets but adds New York's top rate of 10.9% (for 2025) on top of the federal trust top rate of 37%, plus the 3.8% net investment income tax. Trust income concentration in the top brackets makes New York trust income tax painfully high; many NY estate planning attorneys advise structuring trusts to distribute income to lower-bracket beneficiaries when possible.

Irrevocable Trusts in New York: Federal and State Estate Tax Planning

For NY residents with estates approaching the federal exemption ($15M) or the NY exemption with cliff ($7.16M / $7.518M), irrevocable trust planning is essential. Common NY-specific irrevocable trust uses include:

Credit-shelter trusts for married couples to use both spouses' NY exemptions. The federal portability election under IRC §2010(c)(5)(A) makes federal credit-shelter planning less critical for federal purposes, but NY does not recognize portability for NY estate tax purposes (NY Tax Law §952 does not authorize portability of the unused NY exclusion to the surviving spouse). NY-specific credit-shelter trusts remain necessary to fully use both spouses' NY exemptions.
SLATs (Spousal Lifetime Access Trusts) to lock in current federal exemption ($15M 2026) before any future reduction, while preserving indirect access through the spouse.
ILITs (Irrevocable Life Insurance Trusts) to remove life insurance death benefits from both federal and NY taxable estates. See our ILIT page.
GRATs (Grantor Retained Annuity Trusts) for low-§7520-rate transfer of appreciating assets. See our GRAT page.
Charitable Lead and Remainder Trusts to reduce the NY taxable estate below the cliff while making charitable gifts.

New York and Self-Settled Asset Protection

New York is not a DAPT state and is one of the most explicitly hostile US jurisdictions to self-settled asset protection trusts. NY EPTL §7-3.1(a) provides that a disposition in trust for the use of the creator (i.e., a self-settled spendthrift trust) is void as against the existing or subsequent creditors of the creator. New York courts strictly enforce this rule and have repeatedly invalidated attempts by NY residents to use out-of-state DAPT structures.

New York residents seeking DAPT protection must consider whether the out-of-state DAPT (Delaware, Nevada, South Dakota, Alaska, etc.) will be respected by New York courts. The conflict-of-law analysis is complex and fact-specific. Generally, the trust funded well in advance of any creditor claim, with a non-New York trustee, holding non-New York situs assets, and minimal New York grantor contacts, has the best chance of being respected. New York courts will look to the New York Uniform Voidable Transactions Act (NY Debtor & Creditor Law §§270-281) to set aside transfers made with intent to hinder, delay, or defraud creditors.

New York's Rule Against Perpetuities

New York retains a Rule Against Perpetuities under EPTL §9-1.1, with measuring lives plus 21 years. This is the traditional common-law rule. New York does not allow dynasty trusts of indefinite duration. Trusts in New York generally cannot extend beyond approximately 100 years (lives in being plus 21 years; for practical drafting, often capped at the lifetime of the youngest beneficiary plus 21).

For multi-generational planning, New York residents typically establish dynasty trusts in jurisdictions that have abolished the Rule Against Perpetuities (South Dakota, Delaware, Nevada, Alaska, Wyoming). See our dynasty trust page for the full framework. The choice-of-law and trust-situs analysis is more delicate for New York residents than for residents of states that have already abolished the Rule.

Practical NY Trust Planning Recommendations

For most New York residents, the appropriate planning structure depends on net worth and family situation:

Estate under $4M: revocable trust for probate avoidance and incapacity management, basic spousal credit-shelter trust if married, no federal or NY estate tax exposure.

Estate $4M to $7M: revocable trust plus careful credit-shelter planning to use both spouses' NY exemptions, monitoring asset growth toward the NY cliff.

Estate $7M to $15M: aggressive planning to stay below the NY cliff via lifetime gifting, charitable giving (CLAT or CRAT), and credit-shelter use. Federal exemption provides headroom; NY cliff is the binding constraint.

Estate above $15M: federal exemption planning becomes critical. SLATs, ILITs, GRATs, dynasty trusts in non-NY situs, and combined federal/NY planning. The cost of professional planning is justified by the tax savings.

Frequently Asked Questions

Does New York have a state estate tax?

Yes. NY imposes a state estate tax under NY Tax Law §952. The 2026 exemption is $7,160,000 per person. Rates are graduated from 3.06% to 16%. NY does not allow portability of the unused exclusion to the surviving spouse.

What is the New York estate tax cliff?

Under NY Tax Law §952(c), the basic exclusion phases out for estates between 100% and 105% of the exclusion. If the taxable estate exceeds 105% ($7.518M for 2026), the entire exclusion disappears and NY estate tax applies to the full estate from dollar one. The marginal rate near the cliff can exceed 100%.

What is the EPTL?

The New York Estates, Powers and Trusts Law, codified at NY EPTL §§1-1.1 through 14-1.1. Covers wills, trusts, intestate succession, trustee duties, and creditor rights. New York has not adopted the Uniform Trust Code; the EPTL is older and more idiosyncratic.

How does Surrogate's Court differ from probate court in other states?

Each NY county has a specialized Surrogate's Court handling wills, trusts, estates, guardianships, and adoptions. Procedural rules under the SCPA are detailed and court-supervised. NYC probate typically takes 9-18 months for routine estates; complex estates take years. The cost and delay drive most affluent NY clients to use revocable trusts.

Does New York recognize DAPTs?

No. NY EPTL §7-3.1(a) explicitly voids self-settled spendthrift trusts as against the grantor's creditors. NY residents seeking DAPT protection must use an out-of-state DAPT, and the trust must navigate NY conflict-of-law and fraudulent-transfer analysis to be respected against NY creditors.