Trusts vs. Wills in New York: Which Do You Need?

One of the first questions New Yorkers ask when they begin estate planning is whether they need a will, a trust, or both. The answer depends on the size and nature of your estate, whether you own real property, your privacy concerns, your Medicaid and tax goals, and how much you want to avoid the Surrogate's Court probate process. This guide explains how wills and trusts work under New York law — including the relevant Estate Powers and Trusts Law (EPTL) and Surrogate's Court Procedure Act (SCPA) provisions — so you can decide what fits your situation.

Last updated: June 2024. Written by the Law Offices of Albert Goodwin, an estate planning, probate, and estate litigation firm serving Manhattan, Brooklyn, and Queens. Learn more about Albert Goodwin.

Quick Comparison: Wills vs. Trusts in New York

How a Will Works in New York

A will is a document that directs how your property is distributed after death and names an executor to carry out your wishes. In New York, a will has no legal effect until it is admitted to probate in the Surrogate's Court of the county where the decedent lived.

Execution formalities (EPTL 3-2.1)

New York imposes strict formalities. Under EPTL 3-2.1, a valid will must be:

• In writing and signed at the end by the testator (or by another person in the testator's presence and at the testator's direction);
• Signed or acknowledged by the testator in the presence of at least two attesting witnesses;
• Declared by the testator to the witnesses to be his or her last will and testament; and
• Witnessed by both witnesses within a 30-day period.

Most attorneys also attach a self-proving affidavit, which creates a presumption of due execution and usually eliminates the need for witnesses to testify when the will is later offered for probate. Defects in execution are a common ground for a will to be challenged.

Probate (SCPA Article 14)

After death, the named executor petitions the Surrogate's Court for Letters Testamentary. The court reviews the will's authenticity and gives notice to distributees (the people who would inherit if there were no will). For a realistic look at how long this takes, see our sample NYC probate timeline. If there is no will, the estate is settled through administration with Letters of Administration.

The spousal right of election (EPTL 5-1.1-A)

A will cannot completely disinherit a surviving spouse. Under EPTL 5-1.1-A, a surviving spouse is entitled to elect against the estate and take the greater of $50,000 or one-third of the net estate. Importantly, this right reaches certain "testamentary substitutes" — including some assets placed in revocable trusts — so trust planning alone does not automatically defeat a spouse's elective share.

How a Trust Works in New York

A trust is a legal arrangement in which a grantor (also called a settlor) transfers property to a trustee, who manages it for the benefit of beneficiaries according to the terms of the trust document. New York trusts are governed primarily by EPTL Article 7. They fall into two broad categories.

Revocable living trusts

A revocable trust can be changed or revoked during the grantor's lifetime. Its main advantage is probate avoidance — assets titled in the trust pass to beneficiaries without Surrogate's Court involvement, which adds privacy and can speed distribution. Note, however, that a revocable trust offers no Medicaid or creditor protection, because the law treats its assets as still belonging to the grantor. Learn more about the benefits of a living trust and which assets can and cannot go into a revocable trust.

Irrevocable trusts

An irrevocable trust generally cannot be modified or revoked without the consent of the beneficiaries (or court approval under EPTL 7-1.9). Because the grantor gives up control, irrevocable trusts can shelter assets for Medicaid eligibility and provide creditor protection. New York's Medicaid program imposes a five-year (60-month) look-back period for institutional (nursing home) coverage, meaning transfers into an irrevocable trust within five years of applying can trigger a penalty period. Notably, New York has not implemented a community Medicaid look-back for home-care services as of this writing, though legislation to do so has repeatedly been proposed and delayed — an area where current advice matters.

Special needs trusts

A special needs trust allows a disabled beneficiary to receive assets without losing means-tested public benefits such as Medicaid and SSI. These trusts must be drafted carefully to comply with both state and federal law.

Testamentary trusts

A testamentary trust is created inside a will and comes into existence only at death. It does not avoid probate but is useful for staggered distributions to young beneficiaries. See the advantages and disadvantages of a testamentary trust.

A Common New York Scenario

Consider a Brooklyn homeowner, widowed, with two adult children, a co-op apartment, and savings. A simple will would pass everything through probate — public, and subject to court timelines. If privacy and a faster transfer matter, a revocable living trust holding the co-op (subject to the cooperative's consent) avoids probate. If the homeowner is also worried about a future nursing-home stay, an irrevocable trust set up well before any care is needed — ideally more than five years out — can help protect the home from Medicaid recovery. Most plans combine documents: an irrevocable or revocable trust, a "pour-over" will, a durable power of attorney, and a health care proxy.

Which Do You Need?

• Choose a will if your estate is modest, you have minor children needing a guardian, or you simply want to direct distribution and don't mind probate.
• Add a revocable trust if you own real estate, want privacy, want to avoid probate, or own property in more than one state.
• Consider an irrevocable trust if long-term care/Medicaid planning, creditor protection, or estate-tax reduction are priorities — and you can plan ahead of the look-back.

For a deeper dive into staying out of Surrogate's Court, see how to avoid probate in New York and our advanced NY estate planning techniques.

What Happens When Things Go Wrong: Estate Litigation

Even well-drafted documents can lead to disputes. Common New York proceedings include:

• Will contests — challenging a will on grounds such as lack of capacity, undue influence, fraud, or improper execution.
• Discovery and turnover proceedings (SCPA 2103 and 2104) — used to recover estate property held by third parties.
• Accounting proceedings and objections — reviewing a fiduciary's handling of the estate or trust.
• Breach of trust and breach of fiduciary duty claims against trustees and executors.

Frequently Asked Questions

Does a will avoid probate in New York?

No. A will is the document that directs probate — it must be filed and admitted in Surrogate's Court before the executor can act. To avoid probate, assets typically must pass by trust, beneficiary designation, or joint ownership.

Is a trust private in New York?

Generally yes. Unlike a probated will, a trust is usually not filed with the court and is not a public record. See are trusts public record? and are trusts registered?

Can I disinherit my spouse with a trust?

Not entirely. Under EPTL 5-1.1-A, a surviving spouse's elective share reaches certain testamentary substitutes, including assets in many revocable trusts. Careful planning is required.

How far back does New York Medicaid look at transfers?

For nursing-home (institutional) Medicaid, New York applies a five-year (60-month) look-back. Transfers into an irrevocable trust during that period can create a penalty period, which is why early planning is essential.

Do I need both a will and a trust?

Often, yes. Even people who use a trust as their main planning vehicle typically execute a "pour-over" will to catch assets not transferred into the trust and to name a guardian for minor children.

Speak With a New York Wills and Trusts Attorney

Choosing between a will and a trust — and drafting them to withstand court scrutiny under New York law — is a decision best made with experienced counsel. The Law Offices of Albert Goodwin handles estate planning, probate, and estate litigation, with offices in New York City, Brooklyn, NY, and Queens, NY. Call us at 212-233-1233 or email [email protected].

This article is for general informational purposes and is not legal advice. Statutes and Medicaid rules change; consult an attorney about your specific situation.