New York sets the executor's pay by statute, and on a $1,000,000 estate one executor's full commission comes to $34,000. Two co-executors can each take the full amount. With three or more, New York allows two full commissions in total, shared among them, unless the will provides otherwise. That's on top of a $1,250 court fee and the lawyer. New York's estate tax starts above $7,350,000 for 2026 deaths, and an estate more than 5 percent over that line loses the whole exclusion. The federal estate tax doesn't start until $15,000,000. Five tools keep a family out of Surrogate's Court, and a sixth keeps a small estate out of full probate. None of them lowers the New York estate tax on its own.
General information, not legal advice. This guide explains New York law in general terms for the public. It isn't legal advice and isn't a substitute for the advice of an attorney licensed in New York. Taylored Tax is a firm of Enrolled Agents, enrolled to practice before the Internal Revenue Service. We don't practice law, draft legal documents, or recommend which legal instrument you should use. Reading this guide or booking a call doesn't make you our client.
New York's exclusion is $7,350,000 for 2026 deaths, about half the federal figure. The statute starts from $5,000,000 and raises it each year for inflation, rounded to the nearest $10,000. For 2025 deaths it was $7,160,000. The federal exclusion for 2026 deaths is $15,000,000 per person. So a New York estate between $7,350,000 and $15,000,000 can owe New York and owe the IRS nothing.
Three more New York rules raise the bill. New York has no portability, so a surviving spouse can't use the first spouse's unused New York exclusion. New York has had no gift tax since 2000, but it adds back taxable gifts made in the three years before death. And the rates apply from the first dollar once an estate goes over the cliff.
| What your family faces at death in New York | 2026 reality |
|---|---|
| New York estate tax | Yes. 3.06 to 16 percent. $7,350,000 exclusion, which disappears entirely once the taxable estate passes $7,717,500. |
| New York inheritance tax | None. |
| New York gift tax | None since 2000. Taxable gifts made in the three years before death are added back to the estate, for deaths before January 1, 2032. |
| Portability between spouses | None for New York. The federal election doesn't carry over to the New York return. |
| Federal estate tax | $15,000,000 per person in 2026, or $30,000,000 for a married couple whose first estate files a timely federal return electing portability. |
| Surrogate's Court filing fee | Set by statute on the estate's value: $45 under $10,000, rising in steps to $1,250 at $500,000 and over. |
| Executor's commission | Set by statute on a sliding scale. $34,000 on a $1,000,000 estate for one executor taking it in full. Two co-executors can each take the full amount. Three or more share two full commissions unless the will provides otherwise (SCPA 2307(5), 2313). |
| Probate attorney fees | No statutory schedule. $5,000 to $20,000 on a $1,000,000 estate (our estimate). |
| Time tied up | A creditor who presents a claim more than 7 months after the court issues letters can't charge the executor for what was paid out in good faith before the claim came in. An uncontested probate runs about 9 to 18 months (our estimate). |
The credit shrinks fast once an estate passes the line, and 5 percent over loses all of it. New York computes the tax on the whole taxable estate, then subtracts a credit equal to the tax on the exclusion. When the taxable estate is at or under $7,350,000, the credit wipes out the tax. Between $7,350,000 and $7,717,500 (105 percent of the exclusion), the credit shrinks fast. Above $7,717,500, there's no credit at all. Authority: New York Tax Law (Tax Law) 952(c)(1).
The Department of Taxation and Finance shows the shrinking credit in its own worked example for 2025 deaths. An estate of $7,354,036 was $194,036 over that year's $7,160,000 exclusion. The department's worksheet cut its credit to $208,011. Applying the rate table to that estate, New York's tax comes to $477,338. Authority: Instructions for Form ET-706 (9/25), line 3 worksheet; Tax Law 952(b).
| Taxable estate, single owner, 2026 death | New York estate tax / federal estate tax |
|---|---|
| $7,350,000 | $0 to New York. $0 federal. |
| $7,700,000 | $721,694 to New York. $0 federal. |
| $8,000,000 | $773,200 to New York. $0 federal. |
| $10,000,000 | $1,067,600 to New York. $0 federal. |
In that table, the $350,000 between $7,350,000 and $7,700,000 costs the estate $721,694 in New York estate tax. Above the cliff, the rate schedule runs from 3.06 percent on the first $500,000 to 16 percent above $10,100,000.
| New York taxable estate | Tax before the credit |
|---|---|
| $0 to $500,000 | 3.06 percent |
| $500,000 to $1,000,000 | $15,300 plus 5.0 percent of the amount over $500,000 |
| $1,000,000 to $1,500,000 | $40,300 plus 5.5 percent of the amount over $1,000,000 |
| $1,500,000 to $2,100,000 | $67,800 plus 6.5 percent of the amount over $1,500,000 |
| $2,100,000 to $2,600,000 | $106,800 plus 8.0 percent of the amount over $2,100,000 |
| $2,600,000 to $3,100,000 | $146,800 plus 8.8 percent of the amount over $2,600,000 |
| $3,100,000 to $3,600,000 | $190,800 plus 9.6 percent of the amount over $3,100,000 |
| $3,600,000 to $4,100,000 | $238,800 plus 10.4 percent of the amount over $3,600,000 |
| $4,100,000 to $5,100,000 | $290,800 plus 11.2 percent of the amount over $4,100,000 |
| $5,100,000 to $6,100,000 | $402,800 plus 12.0 percent of the amount over $5,100,000 |
| $6,100,000 to $7,100,000 | $522,800 plus 12.8 percent of the amount over $6,100,000 |
| $7,100,000 to $8,100,000 | $650,800 plus 13.6 percent of the amount over $7,100,000 |
| $8,100,000 to $9,100,000 | $786,800 plus 14.4 percent of the amount over $8,100,000 |
| $9,100,000 to $10,100,000 | $930,800 plus 15.2 percent of the amount over $9,100,000 |
| Over $10,100,000 | $1,082,800 plus 16.0 percent of the amount over $10,100,000 |
Authority: Tax Law 952(b). The credit then comes off this figure in full at or under the exclusion, in part up to 105 percent of it, and not at all above that.
New York law and account contracts give owners five ways to pass assets to family without Surrogate's Court, plus a short filing that settles a small estate without full probate. Which ones apply depends on what a person owns and how title is held.
The owner signs a trust, usually serves as trustee while alive, and moves assets into the trust's name. At death, a successor trustee distributes them on the trust's instructions, with no Surrogate's Court case. New York requires the trust to be in writing and signed by the creator, plus a trustee if the creator isn't the only one. The signatures are either acknowledged before a notary or made in front of two witnesses. Authority: Estates, Powers and Trusts Law (EPTL) 7-1.17.
An unfunded trust avoids nothing. New York says a lifetime trust is valid as to assets only "to the extent the assets have been transferred to the trust." Listing an asset in the trust document doesn't count. A house moves in by a recorded deed, and accounts move in by retitling. Authority: EPTL 7-1.18.
New York sets a default commission for an individual trustee. A trustee can take 1 percent of the principal paid out. The yearly commission is $10.50 per $1,000 on the first $400,000, $4.50 per $1,000 on the next $600,000 and $3.00 per $1,000 above that. A bank or trust company acting as trustee falls under a separate section. Authority: Surrogate's Court Procedure Act (SCPA) 2309, 2312.
Commonly used for: married couples, owners of property in more than one state, business owners and blended families. A trust also names a successor trustee ready to act if the owner can no longer manage their affairs.
New York has allowed transfer on death deeds since July 19, 2024. The owner signs a deed naming who inherits the property at death. The deed takes effect only if two witnesses sign it together, a notary acknowledges it, and it's recorded in the county clerk's office before the owner dies. While the owner is alive, nothing changes. The owner keeps full rights in the property, and the beneficiary doesn't need to be told. The deed can be revoked even if it says otherwise. Authority: Real Property Law (RPL) 424; Chapter 56 of the Laws of 2024.
A TOD deed comes with several New York rules. If a beneficiary dies first, that beneficiary's share lapses. Unless the deed says otherwise, it goes to any other beneficiaries named to share the property. If no beneficiary or named alternate survives, the deed passes nothing, and the property passes under the owner's will or by intestacy. A surviving joint owner with survivorship rights takes ahead of the deed. And if the probate estate can't cover an allowed claim or a statutory allowance to a surviving spouse or child, the estate can collect from the property. That proceeding has to start within 18 months after death. The deed passes title with no warranty. Authority: RPL 424.
Commonly used for: a single owner of a house, condo or rental, or a backstop for property that never made it into a trust.
When New York real estate is deeded to a married couple, the law treats them as tenants by the entirety unless the deed says otherwise. The survivor owns all of it at the first death, without probate. The same default applies to co-op shares deeded to spouses on or after January 1, 1996. Joint tenancy with right of survivorship works the same way at death, but only when the deed expressly creates it. Two owners named with nothing more are tenants in common, and each share goes through that owner's estate. Authority: EPTL 6-2.2.
Both forms handle the first death only. At the second death, the property passes under whatever plan the survivor has. Adding a child as a joint owner gives the child ownership today and exposes the property to the child's creditors.
Commonly used for: spouses who want both names on the deed. Many couples pair it with a trust or a TOD deed for the second death.
A 401(k), IRA, 403(b) or life insurance policy pays the person named on the form, by contract, with no probate. New York law protects that beneficiary's right from the rules that govern wills. Authority: EPTL 13-3.2. The common mistake: naming "my estate" as the beneficiary, or leaving the form blank. Both pull the asset back into probate.
In New York, a divorce generally cancels a former spouse's designation on a life insurance policy or in a revocable trust, unless the document says otherwise. Authority: EPTL 5-1.4. An old 401(k) form can still pay a former spouse, because federal law governs most employer plans, so families commonly update these forms after a divorce.
These assets skip probate and still count toward the New York estate tax. A policy on the owner's own life counts at its full death benefit if the owner holds any ownership right in it at death, such as the right to change the beneficiary. Authority: Internal Revenue Code (IRC) 2042; Tax Law 954. Terrence holds the life insurance licenses on our team and is paid when a policy is placed.
Commonly used for: New Yorkers with a retirement account or a policy. Families commonly review these forms after a marriage, divorce, birth or death.
New York's version of a payable-on-death (POD) bank account is the Totten trust: a savings, CD or deposit account held by the owner "as trustee for" a named person. The owner keeps full control while alive and can revoke it by withdrawing the money or by a signed writing filed with the bank. A will can revoke it only by naming the account specifically. If the beneficiary survives, the money passes to them without probate. Authority: EPTL 7-5.1, 7-5.2.
On a brokerage account, a transfer on death (TOD) registration does the same for stocks and bonds. The registration doesn't change ownership until death, and the transfer happens by contract with the firm, outside the will. Authority: EPTL 13-4.6, 13-4.8, 13-4.9.
Commonly used for: bank and brokerage accounts. It's a form at the institution, though a brokerage firm doesn't have to offer TOD registration.
When a person leaves personal property worth $50,000 or less, a family member can settle it through a short Surrogate's Court filing called voluntary administration, with no full probate. The $50,000 doesn't count what New York sets aside for a surviving spouse or children under 21. That set-aside includes one vehicle up to $25,000, household items up to $20,000 and up to $25,000 in money. Voluntary administration doesn't cover real estate at any value. Authority: SCPA 1301, 1302; EPTL 5-3.1.
Commonly used for: cleaning up what's left outside a plan. It isn't a plan on its own.
New York starts from the federal gross estate. That includes a revocable trust, real estate passing by TOD deed, jointly owned property, retirement accounts and life insurance the owner held. A funded trust saves the probate cost. It doesn't lower the estate tax by itself. New York then adds taxable gifts made in the three years before death, for deaths before January 1, 2032. Gifts made before April 1, 2014, while the person lived outside New York, or between January 1 and 15, 2019, aren't added back. Neither are gifts of real estate or tangible property located outside New York when the gift was made. Authority: Tax Law 954; IRC 2038, 2042.
A resident's estate files Form ET-706 when the gross estate plus those gifts is over $7,350,000, even if deductions bring the tax to zero. The return and the tax are due nine months after death. An extension on Form ET-133 generally gives up to six more months to file. Authority: New York Department of Taxation and Finance, estate tax guidance and Form ET-706 Instructions.
A surviving spouse in New York can't pick up the first spouse's unused exclusion: New York doesn't follow the federal portability rule. Without planning, a couple that leaves everything to each other uses one $7,350,000 exclusion, at the second death. A married couple's trust or wills can divide at the first death and put up to the first spouse's exclusion into a separate credit-shelter (bypass) trust. That amount, and its later growth, stays out of the survivor's estate. The split works only with assets that pass under the will or trust. A house held by the entirety, and retirement accounts and life insurance that name the spouse on a beneficiary form, pass to the survivor directly, outside the will or trust. This is standard estate-planning design rather than a New York statute, and a New York attorney drafts it. Authority: Form ET-706 Instructions (9/25), Schedule A note on portability; EPTL 6-2.2, 13-3.2.
Commonly used for: married couples whose combined estate could pass $7,350,000, counting the home, retirement accounts, business and life insurance.
An irrevocable life insurance trust (ILIT) owns the policy instead of the insured person, which keeps the death benefit out of the taxable estate. That works from day one when the ILIT buys a new policy. A policy the insured already owns counts again at its full death benefit if the insured dies within three years of moving it into the ILIT. Either way, the insured can't keep any ownership right, such as the right to change the beneficiary. Terrence holds the life insurance licenses on our team and is paid when a policy is placed. Authority: IRC 2035, 2042.
Commonly used for: people whose estate is near or above $7,350,000 with a policy in their own name.
New York has no gift tax. A taxable gift is added back to the New York estate only if it was made in the three years before death. The add-back ends for deaths on or after January 1, 2032. A gift where the giver keeps the use of the property, its income or the power to change who receives it stays in the estate however long ago it was made. Giving up that right within three years of death doesn't take it out. Authority: Tax Law 954(a)(3); TSB-M-97(8)M; IRC 2035(a), 2036(a), 2038(a).
Commonly used for: people near the cliff who can afford to give during life. Whether a gift helps depends on the numbers, and a gift is a legal transfer an attorney documents.
A nonresident with New York real estate or tangible property can owe New York estate tax. The estate files in New York if it includes that property and the whole estate, plus includible gifts, is over $7,350,000. New York computes the tax as if the person had been a resident, leaving out intangible property such as stocks and bank accounts. Authority: Tax Law 960; New York Department of Taxation and Finance estate tax guidance.
The probate side matters too. New York real estate held in a nonresident's own name can need its own New York proceeding, called ancillary probate, on top of the probate at home. A TOD deed or a funded trust keeps the New York property out of Surrogate's Court.
Assumes the $1,000,000 is cash and investments passing under the will's general terms. A house left by a specific gift in the will isn't counted toward the commission. Assumes one executor. A creditor who presents a claim more than 7 months after letters issue can't charge the executor for what was already paid out in good faith, and the court file is public.
Assumes every asset is in the trust, an individual trustee, and the trust closes within a year. The annual commission is reduced in proportion for a period under 12 months and for partial distributions, so on these assumptions $6,900 is the most it would be. Assets that pass by TOD deed or beneficiary form carry no trustee commission at all, and a trustee can take less than the statutory amount. The cost of drafting the trust and recording the deed isn't included, and a New York attorney quotes it.
The estate tax math carries the bigger numbers. Here's a married couple, both U.S. citizens, with $10,000,000. The marital deduction means nothing is owed at the first death. The survivor dies with the same $10,000,000, and no value changes in between.
Federal estate tax: $0. The first spouse's New York exclusion went unused, and New York has no portability to recover it.
On these assumptions, the split keeps an estimated $1,067,600 with the family at the second death, before the cost of drafting the wills or trust. The example assumes the first spouse owns $5,000,000 that passes under the will or trust.
Numbers are illustrative. The estate tax figures apply New York's statutory rate schedule and cliff (Tax Law 952) to 2026 deaths. They assume no prior taxable gifts, no deductions other than the marital deduction at the first death, and no change in value between deaths. The probate and trustee figures combine statutory amounts (SCPA 2307, 2309 and 2402) with our estimate of attorney fees, which vary widely. This isn't legal or tax advice.
We're Enrolled Agents. We work on the tax: what your estate would owe the IRS, which filings it triggers, and what each choice is worth in dollars. We don't draft documents and we don't practice law.
Every tool on this page is a legal instrument. Which one fits your family, how it's drafted, and how it works with the documents you've already signed are questions for a New York attorney. It helps to know what each choice is worth in tax before you sit down with that attorney.
Avoiding probate is one part of an estate plan. Five New York issues go beyond probate and need their own conversation:
| Term | What it means |
|---|---|
| Probate | The court process that moves what a person owned into the names of the people who inherit it. |
| Surrogate's Court | New York's probate court. Each county has one. |
| Executor, administrator | The person who settles an estate. An executor is named in a will. An administrator is appointed by the court when there's no will. Other states call both a personal representative. |
| Letters | The court's document giving the executor or administrator authority to act. The 7-month creditor period under New York law, after which an executor who paid out in good faith is protected from a late claim, runs from the date letters first issue. |
| Executor's commission | The executor's statutory pay, figured on a sliding scale on the money and property the executor receives and pays out. |
| Voluntary administration | New York's short procedure for a small estate of $50,000 or less in personal property. |
| Ancillary probate | A second probate in another state where the person owned real estate. |
| Revocable living trust | A trust the creator controls and can change during life. Assets titled in it skip probate. |
| Funding a trust | Moving assets into the trust's name by deed or retitling. A trust only controls what's been moved into it. |
| Successor trustee | The person who takes over a trust when the creator dies or can't manage it, and hands out the assets. |
| Credit-shelter (bypass) trust | A trust created at the first spouse's death and filled up to that spouse's exclusion, so the exclusion is used and later growth stays out of the survivor's estate. |
| Irrevocable life insurance trust (ILIT) | A trust that owns a life insurance policy. A policy the trust buys new stays out of the taxable estate. A policy moved into it counts again if the insured dies within three years of the move. |
| Transfer on death (TOD) deed | A recorded deed naming who inherits real estate at death. The owner keeps full control while alive. |
| Tenancy by the entirety | The way New York spouses own real estate together by default. The survivor owns all of it at the first death. |
| Joint tenancy, tenancy in common | Joint tenants with survivorship pass their share to the surviving owner at death. Tenants in common each pass their own share through their estate. |
| Totten trust ("in trust for" account) | A bank account held by the owner as trustee for a named person, who receives it at death without probate. New York's version of a payable-on-death (POD) account. |
| Payable on death (POD), transfer on death (TOD) | A beneficiary named directly on an account. The account passes to that person without probate. |
| Death benefit | What a life insurance policy pays when the insured person dies. |
| Gross estate | Everything a person owned or controlled at death, counted before deductions. It includes trust assets, TOD property and life insurance the person owned. |
| Taxable estate | The gross estate after deductions such as debts, expenses, gifts to a spouse and gifts to charity. New York's cliff test uses this figure. |
| Exclusion | The amount that passes with no estate tax. In New York, $7,350,000 for 2026 deaths. Federally, $15,000,000 in 2026. |
| The cliff | New York's rule that an estate more than 105 percent of the exclusion ($7,717,500 in 2026) gets no credit, so the whole estate is taxed. |
| Gift add-back | New York's rule that counts taxable gifts made in the three years before death as part of the estate, for deaths before January 1, 2032. |
| Portability | A surviving spouse's right to use whatever exclusion the first spouse didn't. Federal law allows it with a timely return. New York doesn't allow it. |
| Marital deduction | The rule that lets property pass to a surviving spouse who's a U.S. citizen with no estate tax at the first death. |
| Right of election | A surviving spouse's right to claim part of the estate even if the will or trust leaves them less. |
| Form ET-706, Form 706 | Form ET-706 is the New York estate tax return. Form 706 is the federal estate tax return. |
| Estate tax | A tax on what a person leaves, paid by the estate before anyone inherits. New York has one. |
| Inheritance tax | A tax on what a person receives, paid by the heir. New York has none. |
| EPTL, SCPA, RPL, IRC | Estates, Powers and Trusts Law, Surrogate's Court Procedure Act and Real Property Law (New York statutes), and the Internal Revenue Code (federal tax law). |
We're always glad to talk about how the federal estate tax works. For anything about how New York's estate tax applies to your estate, or about drafting or choosing legal documents, talk with a New York attorney.
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