Wills vs. Trusts in New York: A Decision Guide With Costs, Fees and Timelines

By Albert Goodwin, Esq., a New York estate planning, probate and estate litigation attorney with offices in Manhattan, Brooklyn and Queens. Last reviewed: October 2025. Statutory citations link to the official text published by the New York State Senate. Medicaid and estate tax figures come from 2025 New York State Department of Health and Department of Taxation and Finance publications and are updated when those agencies change them.

Most New Yorkers who start estate planning ask the same first question: do I need a will, a trust, or both? The honest answer is that the choice turns on numbers and on facts about your property, not on which document sounds more sophisticated. This page gives you the numbers: what each document costs to prepare in New York City, what the Surrogate's Court charges, how executor and trustee commissions compare under the SCPA, how long probate takes in Kings, Queens and New York County compared with a trust, and the 2025 Medicaid and estate tax thresholds that push some families toward an irrevocable trust. It also covers two situations that are specific to New York and rarely explained elsewhere: co-op apartments and the estate tax "cliff."

If you want detail on a single topic, this site has dedicated pages on the benefits of a living trust, how to avoid probate in New York, which assets can go into a revocable trust, testamentary trusts, whether trusts are public record and advanced New York planning techniques. This page is the comparison those pages assume you have already made.

The Short Answer

• A will alone usually fits when your probate assets are modest, your heirs are the people who would inherit anyway, nobody is likely to object, you own no property outside New York, and Medicaid planning is not a concern. The lower drafting cost outweighs the later court costs.
• A revocable trust with a pour-over will usually fits when you own a condominium, house or co-op you want to pass outside court, when you own property in a second state, when a distributee is estranged or hard to locate, or when you want a successor to manage assets if you become incapacitated. You pay more now to avoid a filing fee, commissions and months of waiting later.
• An irrevocable trust is the only option if your goal is to protect a home or savings from the cost of a nursing home or from New York estate tax. A revocable trust does nothing for either goal. Medicaid planning requires an irrevocable trust funded more than 60 months before an application.

Almost everyone needs a will even if a trust is the main vehicle. Only a will can nominate a guardian for a minor child (Domestic Relations Law § 81 and SCPA Article 17), and a pour-over will under EPTL 3-3.7 catches anything you never retitled into the trust.

What Each Document Costs to Prepare in New York City

Attorney fees for estate planning in New York City are almost always quoted as flat fees after a consultation. The ranges below reflect what we see in the New York City market in 2025. They are not a price list, and a plan with unusual assets, a business, or a disabled beneficiary can fall outside them.

Out-of-pocket costs on top of the fee are small for a will and larger for a trust that holds real property. Recording a deed to a trustee in the New York City Register's ACRIS system carries recording fees and requires a New York State TP-584 and a New York City RPT form even though a transfer to your own revocable trust for no consideration is generally exempt from both transfer taxes. Co-op boards charge their own transfer and legal review fees, which vary by building. The pages on will drafting and trust drafting describe how we scope those fees.

What Probate Costs After Death

The up-front saving of a will is partly repaid to the Surrogate's Court and to the executor after death. Three cost lines matter.

1. Surrogate's Court filing fee (SCPA 2402)

The fee to file a probate or administration petition is set by SCPA 2402 and depends on the gross value of the estate passing through the court. Assets held in a trust, joint accounts and accounts with beneficiary designations are not counted.

Certified copies of Letters cost $6 each, and most estates need several. A small estate with $50,000 or less of personal property can use voluntary administration under SCPA Article 13 for a $1 fee, but real property does not qualify, and co-op shares are personal property, so a co-op worth more than $50,000 puts an estate outside Article 13.

2. Executor commissions (SCPA 2307)

An executor is entitled to statutory commissions under SCPA 2307, computed on the property received and paid out: 5 percent on the first $100,000, 4 percent on the next $200,000, 3 percent on the next $700,000, 2.5 percent on the next $4,000,000 and 2 percent above $5,000,000. Real property that passes by specific devise and is not sold is not commissionable. If the will names two executors and the estate exceeds $300,000, each may take a full commission.

On an $800,000 probate estate the commission is $5,000 plus $8,000 plus $15,000, or $28,000. A child serving as executor often waives it, but commissions are income to the executor and inheritances are not, so the waiver is a decision, not an assumption.

3. Attorney fees and other costs

Attorney fees for an uncontested New York City probate commonly run from a few thousand dollars to the low five figures depending on the number of distributees, whether citations must be served, and whether the estate must sell real property or file an estate tax return. A bond may be required if the will does not waive it (SCPA 801 et seq.). Kinship hearings, missing heirs, and objections add cost quickly.

What a Trust Costs to Administer After Death

A revocable trust avoids the SCPA 2402 filing fee and the executor commission, but a successor trustee is also entitled to commissions under SCPA 2309: 1 percent of principal paid out, plus an annual commission of $10.50 per $1,000 on the first $400,000 of principal, $4.50 per $1,000 on the next $600,000 and $3.00 per $1,000 above $1,000,000.

Compare the $800,000 example. A trustee who distributes the whole trust within a year is entitled to about $8,000 for paying out plus roughly $6,000 in annual commission, prorated for a partial year, for a total near $14,000, against $28,000 for an executor on the same assets. The gap narrows if the trust continues for years, because annual commissions keep accruing. Family trustees frequently waive commissions as well, and attorney fees for trust administration are usually lower because no petition, citation or court accounting is required.

How Long Each Takes in New York City

Probate speed depends on the county, the court's backlog and, above all, whether every distributee signs a waiver and consent. The sample NYC probate timeline walks through a case step by step. In general terms:

• Uncontested, all waivers signed: Letters Testamentary in New York, Kings and Queens County typically issue within two to six months of filing, with Queens and Kings often at the longer end.
• Citation required: if a distributee will not sign, the court issues a citation with a return date, which adds one to three months before Letters issue.
• Kinship, missing heirs or objections: a year or more is common, and contested probate can run several years.
• Full administration: even after Letters issue, an executor who distributes before seven months have passed is personally exposed to creditor claims under SCPA 1802. Add time to sell real property, collect receipts and releases, and file any estate tax return, which is due nine months after death. Nine to eighteen months from death to final distribution is a realistic range for an uncontested New York City estate.

A successor trustee of a funded revocable trust can usually act within weeks by presenting the death certificate and the trust instrument or a certification of trust to the bank or title company. Distribution within one to four months is realistic for liquid assets. Prudent trustees still pause for known debts, because assets of a revocable trust remain reachable by the deceased grantor's creditors, and they still wait for any estate tax clearance before making final distributions. The difference is that the clock is controlled by the trustee, not by a court calendar.

A New York Checklist: Which Facts Push You Toward a Trust

Go through these one at a time. Each "yes" is a reason to look past a simple will.

• You own a co-op. Co-op shares cannot pass by deed and the estate cannot use Article 13 if they are worth more than $50,000. A transfer to a trust is possible only with board consent. See the co-op section below.
• You own a condo, house or two-family home in the five boroughs. Real property passing by will cannot be sold or refinanced until Letters issue. A trust lets the trustee sign a contract of sale immediately.
• You own property outside New York. A Florida condo or a New Jersey shore house passing under a New York will requires a second, ancillary proceeding in that state (see ancillary letters). A revocable trust that holds the deed avoids both courts.
• A beneficiary receives SSI or Medicaid. An outright inheritance of more than $2,000 ends SSI. Leave that share to a third-party supplemental needs trust under EPTL 7-1.12, either inside the will or as a stand-alone trust. See the benefits of a special needs trust.
• Your estate, counting life insurance and retirement accounts, is anywhere near $7,160,000. That is the 2025 New York basic exclusion amount, and the cliff above it can tax the entire estate. See the tax section below.
• You are married with children from a prior relationship. A will or trust can hold a surviving spouse's share in trust for life and then pass it to your children, but the spouse's elective share still applies. See the spouse section below.
• A distributee is estranged, abroad or unknown. Every distributee must be cited in probate even if the will leaves them nothing. A funded trust requires no citation and no court appearance.
• You expect a will contest. A trust is not immune from challenge, but a revocable trust funded and operated for years before death is harder to attack than a will signed once, and there is no probate proceeding in which to file objections.
• You are over 60 and want to protect the home from nursing home costs. Only an irrevocable trust funded more than five years before an application does this. See the Medicaid section below.
• You have minor children. You need a will regardless, to nominate a guardian. The children's inheritance should be held in trust until an age you choose; a testamentary trust in the will can do this if probate is otherwise acceptable.

Co-ops and Condos: The New York Wrinkle

A condominium unit is real property. You transfer it to a trust by deed, recorded in ACRIS, with the transfer tax forms discussed above. A mortgage lender cannot call the loan because of the transfer: the federal Garn-St Germain Act, 12 U.S.C. § 1701j-3(d)(8), bars enforcement of a due-on-sale clause when a borrower transfers a residence to a revocable trust and remains the beneficiary and occupant. Property tax exemptions such as STAR and the senior citizen homeowners' exemption continue when the exempt owner holds the property through a revocable trust and still lives there; the Department of Finance asks for the trust instrument or a certification.

A co-op is different. You own shares in the apartment corporation and a proprietary lease, both personal property. The corporation's consent is required to transfer them to anyone, including your own trustee. In practice:

• Board consent: many New York City boards permit transfers to a revocable trust if the grantor remains the occupant and signs an occupancy agreement and a personal guaranty of maintenance. Some boards refuse all trust transfers. Ask for the building's written trust policy before paying to draft one.
• Recognition agreement: if the apartment is financed, the lender's recognition agreement with the co-op governs whether the shares may be reissued to a trustee. Most lenders require a new agreement or a consent letter.
• Flip tax: most proprietary leases or bylaws exempt transfers to a trust for the shareholder's own benefit from the flip tax, but the language controls. Check it; a flip tax of 2 or 3 percent on a Manhattan apartment can cost more than the trust.
• Irrevocable trusts: boards are less receptive to irrevocable Medicaid trusts, because the shareholder is no longer the owner. Where a board refuses, a will remains the vehicle for the co-op and the trust holds other assets.

If the co-op stays in your will, plan on the estate needing Letters before the managing agent will transfer or sell the shares, and on a board interview and approval of any purchaser.

Spouses: The Elective Share Reaches Trust Assets

No New York will or trust can fully disinherit a surviving spouse. Under EPTL 5-1.1-A, the spouse may elect to take the greater of $50,000 or one-third of the net estate. The "net estate" for this purpose includes testamentary substitutes listed in EPTL 5-1.1-A(b)(1): among them, property in a lifetime trust over which the decedent retained a power to revoke, or from which the decedent retained the income or the right to possession and enjoyment; Totten trust accounts; joint accounts to the extent of the decedent's contribution; and gifts made within one year of death. A revocable trust is therefore a testamentary substitute. So is an irrevocable income-only Medicaid trust, because the grantor retained the income.

The spouse must file the election within six months after Letters issue and in no event more than two years after death (EPTL 5-1.1-A(d)). The right can be waived only in a signed, acknowledged writing, typically a prenuptial or postnuptial agreement (EPTL 5-1.1-A(e)). For a second marriage, the usual solution is a will or trust that gives the spouse at least the elective share, often in a lifetime trust, and an agreement waiving anything more.

New York Estate Tax: The Cliff

New York has no inheritance tax (see are joint bank accounts subject to inheritance tax), but it does have an estate tax under Tax Law Article 26 with features that differ from federal law.

• Basic exclusion amount: $7,160,000 for deaths in 2025 ($6,940,000 in 2024), indexed annually. The federal exclusion is $13,990,000 per person in 2025, and federal legislation enacted in July 2025 sets it at $15,000,000 for 2026.
• The cliff: if a New York taxable estate exceeds 105 percent of the exclusion ($7,518,000 in 2025), the exclusion disappears entirely and tax is computed on the whole estate at rates from 3.06 to 16 percent. A $7,000,000 estate owes nothing. A $7,600,000 estate is taxed on all $7,600,000, not on the $440,000 excess, a difference of several hundred thousand dollars. Between the exclusion and the cliff, the tax phases in so steeply that heirs can receive less from a slightly larger estate.
• No portability: unlike federal law, New York does not let a surviving spouse use a deceased spouse's unused exclusion. Married couples near the threshold need a credit shelter trust, created either in each will or in each revocable trust, to use both exclusions.
• Three-year gift add-back: New York has no gift tax, but gifts made within three years of death are added back to the taxable estate under Tax Law § 954(a)(3) for decedents dying before January 1, 2026, unless the Legislature extends the provision again.

A revocable trust saves no estate tax; the assets are still yours. Reducing the estate below the cliff requires lifetime gifts made more than three years before death, an irrevocable life insurance trust, or other irrevocable transfers described on the advanced planning page.

Medicaid: Why Only an Irrevocable Trust Helps

Medicaid treats the assets of a revocable trust as available to the applicant (18 NYCRR 360-4.5). An irrevocable trust in which the grantor keeps only the right to income, and no right to principal, removes the principal from the resource calculation once the look-back has run. The key 2025 New York figures, published by the Department of Health, are:

• Resource limit: $32,396 for a single applicant, $44,035 for a couple.
• Income limit (community Medicaid): $1,800 per month for one person, $2,433 for a couple; excess income can be directed to a pooled income trust.
• Home equity limit: $1,097,000. A home above that equity is a countable resource unless a spouse or dependent child lives there. Many Brooklyn and Queens two-family houses are near or above this figure.
• Community spouse protections (nursing home cases): the spouse at home may keep between $74,820 and $157,920 in resources and a minimum monthly income allowance of $3,948.
• Nursing home look-back: 60 months under Social Services Law § 366(5)(e). Transfers for less than fair value within that window, including transfers to an irrevocable trust, create a penalty period equal to the amount transferred divided by the regional nursing home rate, which for New York City has been in the range of $14,000 to $15,000 per month in 2024 and 2025 and is republished each year.
• Community Medicaid look-back: the 2020 state budget enacted a 30-month look-back for home care and assisted living program services. As of October 2025 the Department of Health has not implemented it and has set no start date. Until it is implemented, a transfer to an irrevocable trust does not delay home care Medicaid, though it does start the 60-month nursing home clock. Confirm the status before relying on it.

An irrevocable trust funded at 68 fully protects the home for an application at 74. Funded at 72, the same trust produces a penalty for an application at 74. That arithmetic, more than any other factor, decides when a family should move from a revocable to an irrevocable plan.

Execution and Funding Requirements

Both documents fail if signed incorrectly, and a trust also fails if never funded.

Wills: EPTL 3-2.1

Under EPTL 3-2.1 the testator must be at least 18 and of sound mind (EPTL 3-1.1), must sign at the end of the document, must sign or acknowledge the signature in the presence of each of at least two attesting witnesses, must declare to each witness that the document is his or her will, and the witnesses must sign within 30 days of one another, adding their addresses. A self-proving affidavit under SCPA 1406 lets the court admit the will without calling the witnesses. Attorney-supervised execution raises a presumption of regularity that matters in a contest.

Trusts: EPTL 7-1.17 and 7-1.18

Under EPTL 7-1.17 a lifetime trust must be in writing and either (a) executed and acknowledged by the creator and, unless the creator is the sole trustee, by at least one trustee, in the manner required to record a deed, or (b) executed in the presence of two witnesses who sign the instrument. Amendments and revocations must meet the same formality and, if the creator is not the sole trustee, be delivered to a trustee. A trust signed without a notary or two witnesses is void.

Under EPTL 7-1.18 a trust is effective only as to assets actually transferred to it. Real property requires a recorded deed to the trustee; securities and bank accounts must be registered in the trustee's name; other property needs a written assignment describing it with reasonable particularity. A beautifully drafted trust with the house still deeded to the grantor personally sends the house through probate. The page on what can and cannot go into a revocable trust covers retirement accounts and other exceptions.

Two Worked Examples

A Queens two-family house with a child living in it

A widowed owner in Flushing holds a two-family house worth $1,300,000 and $200,000 in savings, and has two adult children. One child lives in the second unit and pays the carrying costs; the other lives in New Jersey.

With a simple will leaving everything equally, the estate pays a $1,250 filing fee and up to about $37,000 in executor commissions if the house is sold through the estate, Letters take several months, and the two children become co-owners of a house one of them lives in. The New Jersey child can bring a partition action to force a sale (see beneficiary living in an inherited house and a house in two names).

With a revocable trust, the trustee can carry out instructions the will could also contain but could not carry out without court supervision: give the resident child a right to buy the other half at appraised value within a set period, with the savings credited toward the other child's share, and sell only if the option lapses. No Letters, no filing fee and no citation to a child in another state. If the owner is in her late sixties and wants the house protected from a future nursing home stay, the same plan is drafted as an irrevocable trust, the owner keeps the right to live there and to the rental income, and the five-year clock starts at the deed recording. The home equity of $1,300,000 exceeds the 2025 limit of $1,097,000, so leaving the house in her own name would make it a countable resource in a nursing home application.

A Manhattan co-op and a Florida condominium

A married couple in their seventies own a Manhattan co-op, a condominium in Boca Raton, and $2,500,000 in investments. Under wills alone, the survivor's estate would require a New York probate for the co-op and investments and a Florida ancillary administration for the condo, each with its own counsel, fees and timeline. A joint revocable trust that holds the Florida deed and the investments eliminates the Florida proceeding entirely. The co-op stays in the couple's names if the board refuses trust transfers and passes under pour-over wills, which may still allow a New York probate limited to the apartment. Because their combined estate is under the 2025 exclusion of $7,160,000, no credit shelter planning is required, but the trust is drafted so that one can be added if values grow toward the cliff.

Where the Supporting Pages Go Deeper

• Benefits of a living trust: incapacity management and privacy in detail.
• How to avoid probate in New York: beneficiary designations, joint ownership and Totten trusts as alternatives to a trust.
• Assets that can and cannot go into a revocable trust: IRAs, vehicles, co-ops and business interests.
• Testamentary trusts: holding a child's inheritance inside a will.
• Are trusts public record? and are trusts registered?: what becomes public and when.
• Advanced New York estate planning techniques: credit shelter trusts, life insurance trusts and gifting.
• Sample NYC probate timeline and administration without a will: what happens if you do nothing.

Frequently Asked Questions

Does a will avoid probate in New York?

No. A will is the document the Surrogate's Court admits in probate. It has no effect until then. Assets avoid probate only if they pass by trust, by beneficiary designation, or by joint ownership with right of survivorship. An account with no beneficiary and no joint owner goes through court even with a will; see bank account at death with no beneficiary.

How much does probate cost in New York City?

For an estate of $500,000 or more, the SCPA 2402 filing fee is $1,250. Executor commissions under SCPA 2307 on a $500,000 estate are $19,000 if not waived. Attorney fees for an uncontested matter typically add several thousand dollars. A funded revocable trust avoids the filing fee and executor commission, though a trustee may take commissions under SCPA 2309.

How long does probate take in Brooklyn or Queens?

With all waivers signed, Letters Testamentary commonly issue within two to six months. If a citation must be served, add one to three months. Final distribution usually occurs nine to eighteen months after death because the executor must wait seven months under SCPA 1802 before paying beneficiaries without personal risk.

Can I disinherit my spouse with a trust?

No. The elective share under EPTL 5-1.1-A is the greater of $50,000 or one-third of the net estate, and the net estate includes testamentary substitutes such as revocable trusts, income-only irrevocable trusts, Totten trust accounts and the decedent's share of joint accounts. The only way to eliminate the elective share is a written, acknowledged waiver by the spouse, usually in a prenuptial or postnuptial agreement. Without one, a plan that leaves the spouse less than one-third invites an election and litigation.

Does a revocable trust protect my house from a nursing home?

No. Medicaid counts revocable trust assets as yours. Protection requires an irrevocable trust funded more than 60 months before a nursing home Medicaid application. As of October 2025, New York has not implemented the 30-month look-back for home care Medicaid enacted in 2020.

What is the New York estate tax exemption for 2025?

$7,160,000. Because of the cliff, an estate above $7,518,000 loses the entire exemption and is taxed on its full value at rates up to 16 percent. New York does not allow a surviving spouse to use a deceased spouse's unused exemption.

Can I put my co-op in a trust?

Only with the board's consent, and only if the lender's recognition agreement permits it where there is a loan. Many boards allow transfers to a revocable trust with an occupancy agreement and guaranty; fewer allow irrevocable trusts. Check the proprietary lease for flip tax language before transferring.

Do I need both a will and a trust?

Usually. The will nominates a guardian for minor children, which a trust cannot do, and pours over any asset you never retitled. For many people with modest estates and no real property, a will alone is enough, and the drafting savings are not worth giving up.

Speak With a New York Wills and Trusts Attorney

The Law Offices of Albert Goodwin prepares wills, revocable trusts and irrevocable Medicaid and tax planning trusts for clients in Manhattan, Brooklyn, Queens, the Bronx and Staten Island, and handles probate, administration and estate litigation in the Surrogate's Courts of all five counties. If you want a flat-fee quote based on the facts in this guide, call 212-233-1233 or email [email protected].

Sources

• Estates, Powers and Trusts Law, including EPTL 3-2.1, 3-3.7, 5-1.1-A, 7-1.12, 7-1.17 and 7-1.18.
• Surrogate's Court Procedure Act, including SCPA 1406, 1802, 2307, 2309 and 2402, and Article 13.
• New York State Department of Taxation and Finance, Estate Tax: basic exclusion amounts and rate schedule.
• New York State Department of Health, Medicaid: 2025 income and resource standards, home equity limit, spousal impoverishment figures and regional rates.
• 12 U.S.C. § 1701j-3 (Garn-St Germain Depository Institutions Act) on transfers of a residence to a revocable trust.

This article is general information, not legal advice, and does not create an attorney-client relationship. Fee ranges reflect the New York City market and are not a quotation. Statutory thresholds, Medicaid figures and the status of the community Medicaid look-back change; the figures above were checked in October 2025. Consult an attorney about your own situation.