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By Juliya L. Ismailov
This article explores the status of digitizing the process of signing a Last Will and Testament in New York, and ways to use trust planning to, among other things, avoid probate of a Will and/or plan for real estate investment in retirement. Remote Execution of a Last Will and Testament
With so many business documents that can be easily signed electronically, it sometimes catches clients by surprise that they cannot do the same with their Last Will and Testament (the "Will").
As of right now, New York does not allow electronic Wills - but it soon may. Governor Hochul has not yet signed the New York Electronic Wills Act (A.7856A/S.7416A), which passed both legislative houses in New York State in June 2025. The proposed Act would allow for electronic signature, witnessing and notarization of Wills. If enacted, the Act would go into effect 1.5 years (545 days) after enactment. Under current law, two witnesses must physically be present to witness the signature of the Will by the "testator," who is the person whose Will it is. Under the new law, the witnesses could attest the testator's signature remotely. However, the Will would need to be electronically filed with the New York State Unified Court System within 30 days of execution, which is not currently required. Revoking a filed Will could be accomplished by either removing the electronically filed Will from the system, or by executing and filing a superseding Will. While there are concerns in the legal community about safeguarding the best interests of the testator and the intended beneficiaries from fraud, electronic Will signing is inevitable given the trends in other areas of legal and business practice. The Power of a Revocable Trust
In New York, a traditional Last Will and Testament is truly a last resort. Those with motivation to organize their affairs opt for a Revocable/ Living Trust instead. Besides having the ability to sign this type of document electronically using a remote notarization platform, this trust avoids the court process of "probating" a Will, which is done by submitting a petition to the Surrogate's Court in the county in which the creator of the Will died (the "decedent"). This court process in New York, Queens and Kings Counties can take many months, if not years. During this time, the assets of the decedent's estate cannot be distributed to the beneficiaries, even if a preliminary executor is appointed to pay expenses and manage the estate assets.
The Revocable Trust (also known as a Living Trust), on the other hand, allows the person whose trust it is to fully control its assets during life, and names a successor trustee in the event of incapacity or death. If properly structured and fully funded with assets during life, there is no court intervention required upon death and the management of assets proceeds efficiently. In addition to being viewed as a Will substitute upon death, such trust serves as a substitute for a Power of Attorney in the event of incapacity as well. For these reasons, a "Revocable Trust" can be considered a "must" for New York residents. Example: Gifting Retirement Property to Child(ren)'s Revocable Trust(s) A good example of thoughtful planning with a Revocable Trust is to use it as a receptacle of lifetime gifts by parents of real estate or other assets to their adult children. This is particularly relevant for property that does not have built-in (read: taxable) gain, or appreciation in value. (If the property does have meaningful appreciation, a gift could undermine the "basis step-up" benefit of holding it in the parents' own estates until death, a topic that will also be explored more closely in a future article.) The issue of lifetime gifting of real estate arises with aging parents purchasing retirement property. While funding the purchase, the parents want to remove the property from their own estate in order to avoid all burdens associated with the gifted property (including avoiding the delays and costs associated with the probate of a Will when both parents are gone). At the same time, the parents wish to retain the right to occupy this property. Careful attention to the language in the trust document regarding the parents' retention of occupancy rights (and of the right to control sale of the property) can strike the desired and proper balance between the advantages of keeping certain rights and gifting the property during one’s lifetime. For example, a separate lifetime occupancy agreement between the Revocable Trust and the parents as tenants of the property can provide additional sureties and peace of mind.
Another popular alternative to a Revocable Trust, if appropriate, is to gift the property into an Irrevocable Trust - for increased creditor and estate tax protection for the children - a more advanced topic to be explored in a future article.
If you have questions or comments regarding this article and related trusts and estates and real estate topics, please reach out via our contact page (select the Inquiry Type in the contact form as "Trusts and Estates"). Comments are closed.
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