The key difference between a trust and a will in New York is what happens after you pass away: a will must be filed and probated in the Surrogate’s Court — a public, court-supervised process — while a trust avoids probate entirely and keeps your affairs private. A will only takes effect at death and controls assets in your individual name; a trust takes effect the moment you sign it, can manage your assets if you become incapacitated during your lifetime, and passes property to your beneficiaries without court involvement. For many New York families, the right plan uses both documents together. This guide breaks down the practical differences and gives you a clear checklist of next steps.
What a Will Does in New York
A will is a written instruction set that names who inherits your property, who serves as your executor, and (if applicable) who serves as guardian for minor children. It has no legal force while you are alive. When you die, your executor files the will with the Surrogate’s Court in the county where you lived, and the court must admit it to probate before any assets can be distributed.
Probate in New York is a matter of public record. The will, the inventory of assets, and the identities of your beneficiaries become accessible to anyone who looks. The process also takes time — often many months — and the estate may owe court fees and commissions along the way. New York’s executor and trustee commission schedules are set by statute under the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).
What a Trust Does in New York
A trust is a legal arrangement governed by EPTL Article 7 in which a grantor transfers assets to a trustee, who manages them for the benefit of named beneficiaries. Because the trust — not you personally — owns the assets, those assets pass to your beneficiaries under the trust’s terms without going through Surrogate’s Court. That means no probate, more privacy, and faster access for your loved ones.
There are several types of trusts used in New York:
- Revocable living trust — You keep full control and can amend or revoke it at any time. Its primary benefits are avoiding probate, maintaining privacy, and providing for management of your assets if you become incapacitated. Importantly, a revocable trust does not save estate tax — the assets remain part of your taxable estate.
- Irrevocable trust — Generally cannot be amended once created. It is used for estate-tax reduction, asset protection, and Medicaid planning. Transfers to an irrevocable trust are subject to the 5-year look-back for Medicaid eligibility.
- Supplemental (Special) Needs Trust (SNT) — Authorized under EPTL 7-1.12, this trust preserves means-tested benefits such as Medicaid and SSI for a disabled beneficiary while still providing supplemental support.
Learn more about each option on our Trusts Overview, Revocable Living Trust, and Irrevocable Trust pages.
Trust vs. Will: Side-by-Side
| Feature | Will | Trust |
|---|---|---|
| Takes effect | Only at death | Immediately upon signing |
| Court involvement | Probated in Surrogate’s Court | Avoids probate |
| Privacy | Public record | Private |
| Manages incapacity | No | Yes (revocable & irrevocable) |
| Can be changed | Anytime before death | Revocable: yes; Irrevocable: generally no |
| Estate-tax savings | No | Only certain irrevocable trusts |
| Names guardians for minors | Yes | No (use a will for this) |
| Governing law | EPTL & SCPA | EPTL Article 7 |
What About Estate Tax?
New York imposes its own estate tax separate from the federal tax. For 2026, the basic exclusion amount is $7,350,000. New York’s tax includes a notorious “cliff”: at 105% of the exclusion — $7,717,500 — an estate loses the ENTIRE exemption, not just the excess. Estates approaching that threshold need careful planning, often involving irrevocable trusts or charitable gifts. A revocable living trust, by itself, does not reduce this exposure because the assets remain in your taxable estate.
The Trustee’s Responsibilities
Whether your trust is revocable or irrevocable, the trustee owes serious fiduciary duties to the beneficiaries:
- Prudent-investor standard — Trustees must invest and manage trust assets prudently under EPTL Article 11-A.
- Duty of loyalty — The trustee must act in the beneficiaries’ best interests, free of conflicts.
- Duty to account — The trustee must keep records and account to the beneficiaries.
If you are stepping into this role, our Trust Administration page walks through the process in detail.
Your Practical Checklist: Next Steps
Use this checklist to decide what to do next.
- Inventory your assets. List real estate, bank and brokerage accounts, retirement plans, life insurance, and business interests, along with how each is titled.
- Estimate your taxable estate. If your total approaches or exceeds $7,350,000, flag estate-tax and cliff planning as a priority.
- Identify your goals. Avoiding probate? Privacy? Incapacity protection? Medicaid eligibility? Providing for a disabled loved one? Your goals determine which tools you need.
- Choose your documents. Most New Yorkers benefit from a will and a trust working together — the trust to avoid probate and manage assets, the will as a backstop and to name guardians for minor children.
- Pick a trust type if appropriate. Revocable for flexibility and probate avoidance; irrevocable for tax, asset protection, or Medicaid (mind the 5-year look-back); SNT for a disabled beneficiary under EPTL 7-1.12.
- Fund the trust. A trust only avoids probate for assets actually retitled into it. Unfunded trusts are a common and costly mistake.
- Name fiduciaries carefully. Choose a trustee and executor who can meet the prudent-investor and accounting duties.
- Review every few years and after major life events — marriage, divorce, births, deaths, or a significant change in assets.
For a focused comparison, see our Trust vs. Will page.
Frequently Asked Questions
Do I need both a will and a trust in New York?
Often, yes. A trust avoids probate and manages assets during incapacity, but a will is still needed to name guardians for minor children and to catch any assets not transferred into the trust.
Does a revocable living trust lower my estate tax?
No. A revocable trust keeps assets in your taxable estate, so it does not reduce New York or federal estate tax. Certain irrevocable trusts are used for tax reduction.
What is the New York estate-tax cliff?
For 2026, the basic exclusion is $7,350,000. If your estate exceeds 105% of that amount — $7,717,500 — you lose the entire exemption, not just the portion over the threshold.
Can a trust protect benefits for my disabled child?
Yes. A Supplemental (Special) Needs Trust under EPTL 7-1.12 can hold assets for a disabled beneficiary without disqualifying them from means-tested benefits like Medicaid and SSI.
Talk to a New York Estate Planning Attorney
Choosing between a trust and a will — or combining both — depends on your assets, your family, and your goals. The team at Morgan Legal Group, led by Russel Morgan, Esq., helps New York families build plans that avoid probate, protect privacy, and address estate-tax exposure across the state.
Schedule your 30-minute consultation with Russel Morgan, Esq.
Further reading from Morgan Legal Group: New York estate planning.