Almost every New Yorker who starts an estate plan hits the same fork in the road: do I need a will, a trust, or both? The honest answer is that this is not an either/or contest. It is a sequence of practical decisions about probate, privacy, taxes, and control — and most well-built New York plans use both documents together.
This page is written as a checklist rather than a lecture. Below you will find the core legal differences, a side-by-side comparison, and a concrete list of next steps you can act on. Wherever a rule comes from New York law, it is cited so you can verify it. Morgan Legal Group serves families statewide — from New York City and Long Island to Westchester, the Hudson Valley, and Upstate — and attorney Russel Morgan, Esq., uses the same step-by-step framework you will see here.
The One Difference That Drives Everything: Probate
If you remember nothing else, remember this: a will must be probated; a properly funded trust avoids probate.
A will is a set of instructions that only takes legal effect after you die and only after it is filed and validated in the Surrogate’s Court. Probate is the court-supervised process of proving the will is valid, appointing your executor, notifying heirs, and authorizing the transfer of assets. Because court filings are public records, a will is a public document — anyone can request and read it.
A trust, by contrast, is a private agreement that takes effect the moment you sign and fund it. Trusts in New York are governed by the Estates, Powers and Trusts Law (EPTL) Article 7. When you transfer assets into a trust during your lifetime, those assets are owned by the trust, not by you personally — so at death they pass to your beneficiaries without probate under the terms of the trust. No Surrogate’s Court filing, no public record of who got what, and typically a faster handoff to your family.
This single distinction — public court process versus private contract — is the foundation of nearly every other difference between the two tools.
Side-by-Side: Will vs. Trust in New York
| Feature | Last Will & Testament | Revocable Living Trust |
|---|---|---|
| Takes effect | Only at death, after court validation | Immediately upon signing and funding |
| Probate required? | Yes — Surrogate’s Court | No (for assets titled in the trust) |
| Public or private? | Public record | Private |
| Manages incapacity? | No | Yes — successor trustee can step in |
| Can be changed? | Yes, while you have capacity | Yes — grantor can amend or revoke |
| Governing law | EPTL (wills, EPTL Article 3) | EPTL Article 7 |
| Saves NY estate tax? | No | No (revocable trust assets stay in your taxable estate) |
| Names a guardian for minor kids? | Yes | No — this is done in a will |
Notice the last two rows. A revocable living trust does not save estate tax — because you keep full control and can revoke it, the assets remain part of your taxable estate. And a trust cannot name a guardian for your minor children; only a will can. That is one of several reasons most New Yorkers still need a will even when a trust is the centerpiece of their plan.
Understanding the New York Trust Menu
“Trust” is not one thing. Choosing the right one is the second decision after you decide a trust makes sense at all.
Revocable Living Trust
The most common choice. The grantor keeps complete control and can amend or revoke it at any time. Its primary benefits are three: it avoids probate, it keeps your affairs private, and it provides built-in incapacity management — if you become unable to handle your finances, your named successor trustee steps in without a court guardianship. What it does not do is reduce estate tax, because the assets are still treated as yours. Learn more on our revocable living trust page.
Irrevocable Trust
This trust generally cannot be amended or revoked once created. You give up control in exchange for powerful benefits: estate-tax reduction, asset protection, and Medicaid planning. Because Medicaid imposes a five-year look-back, an irrevocable trust used for long-term-care planning must usually be funded well before you need benefits. See our irrevocable trust page for how the trade-offs work.
Supplemental / Special Needs Trust (SNT)
If a beneficiary has a disability and relies on means-tested benefits like Medicaid or SSI, a direct inheritance can disqualify them. A Supplemental (Special) Needs Trust under EPTL 7-1.12 holds assets for that person’s benefit without counting as their resource, preserving eligibility while still improving their quality of life. Our special needs trust page explains the structure.
For a broad overview of all of these vehicles, start at our trusts overview.
What a Trustee Actually Has to Do
Choosing a trust also means choosing a trustee, and that role carries real legal duties. Under New York law a trustee is a fiduciary who must:
- Follow the prudent-investor standard when managing and investing trust assets (EPTL Article 11-A);
- Observe a duty of loyalty, acting solely in the beneficiaries’ interest, never self-dealing; and
- Account to the beneficiaries, keeping accurate records and reporting on the trust’s administration.
Trustees in New York are entitled to commissions under the fee schedules set out in the SCPA and EPTL; the exact figures depend on the size and type of trust. Administering a trust correctly is its own discipline — our trust administration page walks through the trustee’s job after the grantor dies or becomes incapacitated.
The 2026 New York Estate Tax — and the “Cliff”
Taxes are the third major decision point, and New York has a feature that traps the unprepared.
For 2026, New York’s basic exclusion amount is $7,350,000 — estates below that figure owe no New York estate tax. But New York uses a cliff: once a taxable estate exceeds 105% of the exclusion — $7,717,500 — the estate loses the entire exemption and is taxed on the whole value, not just the excess. Falling just over the cliff can cost far more than the dollars that pushed you over.
This is precisely where irrevocable trusts earn their keep. Because a revocable living trust leaves assets in your taxable estate, it offers no tax relief near the cliff. Planning to stay under the threshold — or to reduce the estate through irrevocable gifting structures — is a job for an attorney, not a template.
Your Next-Steps Checklist
Here is the practical sequence we use with New York clients. Work through it in order:
- Inventory what you own and how it’s titled. List real estate, accounts, business interests, life insurance, and retirement plans. Note which already have beneficiary designations.
- Decide who inherits and who’s in charge. Name beneficiaries, an executor (for the will), a trustee and successor trustee (for the trust), and — critically — a guardian for any minor children, which must be done in a will.
- Confirm you need probate avoidance. If privacy, speed, out-of-state property, or incapacity management matter to you, a revocable living trust likely belongs in the plan.
- Screen for tax and Medicaid exposure. If your estate approaches the $7,717,500 cliff, or if long-term care is a concern, evaluate an irrevocable trust and start the five-year clock early.
- Protect vulnerable beneficiaries. If anyone you love receives means-tested benefits, plan their share through a Supplemental Needs Trust (EPTL 7-1.12).
- Draft both documents — and then FUND the trust. An unfunded trust avoids nothing. Re-title accounts and deeds into the trust; this step is where most do-it-yourself plans fail.
- Add the supporting documents. Pair your will and trust with a durable power of attorney and a health care proxy so someone can act for you while you’re alive.
- Review every few years and after any major life change — marriage, divorce, a new child, a move, or a large change in assets.
If you’d like to work through this checklist with an attorney, schedule a consultation with Russel Morgan, Esq..
Frequently Asked Questions
Do I need both a will and a trust in New York?
Most people benefit from both. A revocable living trust handles probate avoidance, privacy, and incapacity, while a “pour-over” will catches any assets you forgot to transfer and — uniquely — names a guardian for minor children. The two documents do different jobs and work best together.
Does a revocable living trust reduce my New York estate tax?
No. Because you keep the power to amend or revoke it, the assets in a revocable trust remain part of your taxable estate. Estate-tax reduction in New York generally requires an irrevocable trust or other advanced planning, especially near the 2026 cliff at $7,717,500.
Can I avoid the Surrogate’s Court entirely with a trust?
For assets properly titled in a funded revocable trust, yes — those assets pass outside probate. But assets left out of the trust, or owned in your name alone with no beneficiary, may still require a Surrogate’s Court proceeding. Funding the trust completely is what makes the difference.
What is the five-year look-back I keep hearing about?
It’s a Medicaid rule. Transfers of assets — including into certain irrevocable trusts — made within five years of applying for long-term-care Medicaid can trigger a penalty period. This is why Medicaid-focused trusts must be set up and funded well in advance of needing care.
How does a Special Needs Trust protect benefits?
A Supplemental Needs Trust under EPTL 7-1.12 holds an inheritance for a disabled beneficiary without it counting as their personal resource. That preserves eligibility for means-tested programs like Medicaid and SSI while still allowing the trust to enhance the beneficiary’s quality of life.
This page is general information about New York estate planning, not legal advice. For guidance on your situation, consult a qualified New York attorney. To review the statutes cited here, see the New York Senate’s EPTL text or the New York State Department of Taxation and Finance.
Further reading from Morgan Legal Group: the revocable living trust explained.