For most New Yorkers, the honest answer is: you almost certainly need a will, and many people benefit from adding a trust — but a trust is rarely a substitute for a will. The two tools do different jobs. A will directs who receives your property and names a guardian for minor children, but it must pass through the court process called probate. A trust can hold your assets during your lifetime and pass them to your loved ones without probate, and certain trusts can also protect assets or qualify you for Medicaid. The right choice depends on the size of your estate, your family situation, and your goals. This guide explains, in plain English, what each document does under New York law so you can decide what fits your life.
What a Will Does in New York
A will is the foundation of nearly every estate plan. It lets you name the people who inherit your property, choose an executor to carry out your wishes, and — critically for young families — nominate a guardian for minor children.
In New York, a valid will must meet the formal requirements of EPTL §3-2.1. That statute requires that the testator (the person making the will) sign at the end of the document, that the will be signed in the presence of (or acknowledged to) two attesting witnesses, and that the testator declare to those witnesses that the document is their will — a step known as publication. If these formalities are not followed exactly, the will can be challenged or rejected.
If you die without a valid will, you are said to die “intestate.” New York’s intestacy rules in EPTL Article 4 then decide who inherits — and the result may not match what you would have wanted. For example, a spouse and children share the estate under a fixed formula, and an unmarried partner receives nothing.
A will only takes effect at death and must be submitted to the Surrogate’s Court for probate — the legal process of proving the will is valid and authorizing the executor to act. Probate is public, takes time, and involves court oversight. Avoiding or minimizing that process is one of the main reasons people consider a trust.
To go deeper, see our Wills page.
What a Trust Does in New York
A trust is a legal arrangement in which a trustee holds and manages assets for the benefit of others. New York trusts are governed primarily by EPTL Article 7. There are two broad families of trusts, and they serve very different purposes.
Revocable Living Trust
A revocable living trust is one you create during your lifetime and can change or cancel at any time. You typically serve as your own trustee while you are alive and well, and you name a successor trustee to step in if you become incapacitated or pass away. The headline benefit is that assets properly transferred into the trust avoid probate — they pass to your beneficiaries privately and without court delay.
Important: a revocable living trust offers no estate-tax savings and no creditor protection, because you keep full control of the assets. Its value is in avoiding probate, providing for incapacity, and keeping your affairs private.
Irrevocable Trust
An irrevocable trust generally cannot be changed once created, because you give up control of the assets you place in it. That loss of control is precisely what makes it powerful. Irrevocable trusts are used for estate-tax reduction, asset protection, and Medicaid planning. Because New York Medicaid imposes a five-year look-back on transfers for long-term care eligibility, families who may need nursing-home care often fund an irrevocable trust years in advance.
A special category is the Supplemental (or Special) Needs Trust under EPTL 7-1.12, which lets a person with disabilities receive an inheritance without losing means-tested government benefits.
Learn more on our Trusts page.
Will vs. Trust: A Side-by-Side Comparison
| Feature | Will | Revocable Living Trust | Irrevocable Trust |
|---|---|---|---|
| Avoids probate | No | Yes | Yes |
| Takes effect | At death | During life & at death | When funded |
| Can be changed | Yes (until death) | Yes, anytime | Generally no |
| Names guardian for minors | Yes | No | No |
| Estate-tax savings | No | No | Possibly |
| Asset / Medicaid protection | No | No | Yes (5-yr look-back) |
| Private (not public record) | No | Yes | Yes |
| Governing law | EPTL §3-2.1 | EPTL Article 7 | EPTL Article 7 |
The table makes the point clearly: a will and a trust are complements, not competitors. Even people who use a trust still need a will — often a short “pour-over will” that catches any assets not retitled into the trust and that names a guardian for children.
The Documents Every NY Plan Needs Beyond a Will or Trust
Choosing between a will and a trust is only part of the picture. A truly comprehensive New York estate plan coordinates four documents together:
- A will (and possibly a trust) to direct your property.
- A trust, where helpful, to avoid probate or protect assets.
- A durable power of attorney under GOL §5-1513. New York’s 2021 statutory short form lets a trusted agent handle your finances; it is durable by default, meaning it stays effective if you become incapacitated.
- A health care proxy under New York Public Health Law Article 29-C, which appoints an agent to make medical decisions for you. This is separate from the financial power of attorney and is just as essential.
See our Power of Attorney page for how the financial side works.
What About the New York Estate Tax?
For larger estates, taxes drive the planning. For deaths on or after January 1, 2026, New York’s basic exclusion amount is $7,350,000. New York also has a notorious “cliff.” If your taxable estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the entire exemption and the estate is taxed from the first dollar, at progressive rates of 3% to 16%.
New York has no gift tax, but gifts made within three years of death are added back to the taxable estate. Estates near or above the cliff usually require careful trust and gifting strategies, which is where an irrevocable trust earns its keep. For the full picture, read our NY Estate Tax Guide.
Frequently Asked Questions
Can a trust completely replace my will?
No. Even with a fully funded revocable trust, you should still have a will to name a guardian for minor children and to capture any assets you never transferred into the trust. Most plans pair a trust with a “pour-over” will.
Does a revocable living trust save me on estate taxes?
No. Because you keep control over a revocable trust, its assets are still part of your taxable estate. Tax savings generally require an irrevocable trust, gifting, or other strategies.
I rent and have modest savings. Do I really need a trust?
Often a well-drafted will, durable power of attorney, and health care proxy are enough. A trust becomes valuable when you want to avoid probate, plan for incapacity, protect assets, or prepare for Medicaid.
How does Medicaid affect my decision?
New York applies a five-year look-back to asset transfers for long-term care. If nursing-home care is a realistic future concern, an irrevocable trust funded well in advance can help protect your home and savings.
Talk to a New York Estate Planning Attorney
There is no one-size-fits-all answer to “will or trust?” — the right plan depends on your family, your assets, and your goals across all of New York State. The team at Morgan Legal Group, led by Russel Morgan, Esq., builds coordinated plans that fit your life, from a simple will to a full trust-based strategy. Start with our Estate Planning Overview, then book a consultation.
Schedule your 30-minute consultation with Russel Morgan, Esq. →
Further reading from Morgan Legal Group: the New York estate planning guide.