New York vs California Estate Planning: Key Differences

What Are the Biggest Differences Between New York and California Estate Planning?

The core differences come down to four areas: property ownership systems, probate fee structures, small estate thresholds, and will execution rules. These aren't minor technicalities. They determine how much of your estate reaches your family, how quickly, and under what conditions.

California is one of nine community property states, meaning assets acquired during marriage generally belong to both spouses equally. New York follows common law principles with equitable distribution, where each spouse owns what's in their name unless they've titled property jointly. This single distinction changes how assets pass at death, what the surviving spouse is entitled to, and how a prenup or postnup functions.

For couples who own a home in Manhattan and a rental in Los Angeles, or who are considering a cross-country move, these differences compound. A trust drafted for California may not account for New York's executor commission structure. A will that meets New York's witness requirements might miss opportunities available under California law. The solution is coordinated planning with professionals who understand both jurisdictions.

Community Property vs. Equitable Distribution: How Spouses Own Assets

California treats virtually all assets acquired during marriage as community property, owned 50/50 by both spouses, while New York treats spouses as individual owners, with equitable distribution rules applying at divorce and an elective share applying at death.

In California, community property includes wages, investment gains, and real estate purchased during the marriage, regardless of whose name is on the title. Separate property (assets owned before marriage, gifts, and inheritances received by one spouse) stays with the individual, but commingling separate and community funds can blur that line quickly. When one spouse dies, only their half of community property passes through probate or a trust. The surviving spouse already owns the other half. The California Department of Justice's estate planning overview notes that community property may pass directly to the surviving spouse at death.

New York works differently. Spouses own assets individually by default. If one spouse buys a home titled solely in their name, it's their property. At death, the surviving spouse doesn't automatically own half. Instead, New York provides an "elective share" under EPTL 5-1.1-A, which allows a surviving spouse to claim the greater of $50,000 or one-third of the deceased spouse's net estate, even if the will says otherwise. This is a floor, not a ceiling. It means a surviving spouse in New York can't be entirely disinherited.

How do prenuptial agreements fit in? In California, a prenup can reclassify community property as separate property and vice versa, giving couples control over the default 50/50 split. In New York, a prenup can waive the elective share, though courts scrutinize these waivers for fairness and full financial disclosure. For couples planning together, a well-drafted agreement creates clarity about what each partner keeps, contributes, and passes on.

Probate Cost Comparison: California vs. New York Fees

California sets probate attorney and executor fees by statute as a percentage of the estate's gross value. New York allows negotiable "reasonable" attorney fees plus statutory executor commissions, making costs less predictable but sometimes lower for large estates.

California's fee schedule is codified in Probate Code sections 10800 and 10810. Both the attorney and the executor each receive the full statutory fee, so the total doubles. For a $1 million estate, that's approximately $23,000 for the attorney and $23,000 for the executor, totaling about $46,000 before court costs. And here's the part that catches people off guard: fees are calculated on gross estate value, not net. A home appraised at $800,000 with a $600,000 mortgage counts as $800,000 for fee purposes. For a detailed breakdown of these calculations, see Neptune's guide to probate costs in both states.

New York's system is more flexible but less transparent. Attorney fees are "reasonable" under SCPA 2110, and courts look at factors like estate complexity, time spent, and the attorney's experience. In practice, fees typically run 2% to 4% of estate value. Executor commissions are set by SCPA 2307: 5% on the first $100,000, 4% on the next $200,000, 3% on the next $700,000, 2.5% on the next $4 million, and 2% on amounts above $5 million.

Note: NY attorney fees shown at 3% for illustration; actual fees are negotiable. Court filing fees and extraordinary fees are not included in either state.

A revocable living trust can help families in both states bypass probate entirely for assets held in the trust. In California, where statutory fees on a single piece of real estate can reach tens of thousands of dollars, a trust often pays for itself many times over. In New York, the benefit is similar, though the negotiable fee structure means the savings vary more by estate. Either way, setting up a trust with a qualified attorney is one of the most straightforward ways to keep assets out of probate court.

Will and Trust Execution Rules and Small Estate Thresholds

California requires two witnesses for a formal will and recognizes handwritten (holographic) wills, while New York requires two witnesses and generally does not recognize holographic wills. California's small estate threshold of $208,850 is more than four times New York's $50,000 threshold.

Will Execution Requirements

Both states require the testator (the person making the will) to be at least 18 years old. California law under Cal. Prob. Code § 6110 requires two witnesses present at the same time when the testator signs. California also accepts holographic wills, handwritten documents signed by the testator that don't need witnesses, though these carry higher risk of challenge.

New York's EPTL 3-2.1 also requires two witnesses present when the testator signs. New York does not recognize holographic wills, meaning a handwritten, unwitnessed document won't hold up in a New York probate court.

Small Estate Thresholds

California allows estates valued at $208,850 or less (for deaths on or after April 1, 2025) to use a simplified affidavit procedure, skipping formal probate entirely. New York's small estate threshold is $50,000. This gap matters enormously: a modest estate with a paid-off car, some savings, and personal property might clear California's threshold but require full probate in New York.

Trust Rules Across State Lines

Trust administration is generally governed by the law specified in the trust document or by the law of the state with the most significant relationship to the trust. If you set up a revocable trust in New York and then move to California, the trust is typically still valid, but the governing law and trustee powers may need updating. Relocating to a new state often means reviewing whether the trust situs (the jurisdiction that governs the trust) should change, and whether the trustee has the powers they need under the new state's laws. Working with an attorney in your new state ensures the trust operates as intended.

How to Plan Across States or After Relocating

A will or trust validly executed in one state is generally honored in another under the Full Faith and Credit Clause, but couples relocating between New York and California should have every estate document reviewed and often revised by in-state counsel.

The biggest practical issues tend to show up in powers of attorney and health care directives. A financial power of attorney drafted in New York may not be accepted by a California bank. Hospitals in a new state may hesitate to honor an out-of-state health care proxy. Re-executing these documents under local law, with an attorney who understands the state-specific statutory forms, eliminates that friction.

State Estate Tax Considerations

New York imposes its own estate tax with an exemption of $6.94 million (2024). Estates that exceed that threshold by more than 5% face a "cliff" where the entire estate becomes taxable, not just the amount above the exemption. California has no state estate or inheritance tax. For high-earning couples, this single difference can shift hundreds of thousands of dollars in tax exposure depending on where they establish residency. The federal estate tax exemption is $13.61 million per person for 2024, but that figure is scheduled to drop roughly in half after December 31, 2025, unless Congress acts. Coordinating with a CPA who understands both federal and state-level planning is essential.

How Neptune Helps Couples Plan Across Both States

Neptune pairs couples and families with attorneys who have 20+ years of experience, along with CFPs and CPAs, to build a coordinated plan that accounts for property laws, tax exposure, and document requirements in both New York and California. Whether you're drafting a lawyer-led online prenup before a cross-country move or updating a trust after relocating, Neptune manages the full process from start to finish. The goal is simple: clarity for both partners, built together, with professionals who know the rules in every state that matters to your family.