If you want to establish a trust in New York, you need a lawyer who understands how the state's Estate Powers and Trusts Law (EPTL), Surrogate's Court Procedure Act (SCPA), and Medicaid rules actually work in practice. This page explains what our firm does when we draft and fund a trust, how the process works, what it typically costs in time and money, and what to expect after you hire us. If you are dealing with a dispute over an existing trust rather than creating one, see our separate pages on breach of trust, breach of fiduciary duty, and the discovery and turnover proceeding.
What a New York Trust Attorney Does for You
A trust is a legal arrangement governed in New York principally by EPTL Article 7. You (the grantor, also called the settlor) transfer assets to a trustee who holds and manages them under written instructions for the benefit of named beneficiaries. Our role is to design a trust that accomplishes your specific goal — avoiding probate, qualifying for Medicaid, protecting assets, providing for a disabled relative, or reducing New York estate tax — and then to make sure it is validly executed and properly funded. A trust that is drafted but never funded with assets accomplishes nothing.
Under EPTL 7-1.17, a lifetime (inter vivos) trust in New York must be in writing and either executed and acknowledged by the grantor and trustee with the formality of a deed, or signed in the presence of two witnesses who also sign. We handle that execution so the trust holds up if it is ever questioned.
Revocable Living Trusts in New York
A revocable living trust lets you keep full control of your assets during your lifetime. You can serve as your own trustee, amend the trust, or revoke it entirely at any time. Because you retain that control, the assets are still treated as yours — so a revocable trust does not protect assets from creditors and does not help you qualify for Medicaid. Its main benefits in New York are:
- Avoiding probate. Assets titled in the trust pass outside Surrogate's Court, which can shorten administration and reduce delay, particularly where heirs are hard to locate or a will might be contested.
- Avoiding ancillary probate in other states. If you own real property outside New York — a Florida condo, for example — placing it in the trust avoids a separate out-of-state probate proceeding.
- Privacy. A probated will becomes a public Surrogate's Court record. A trust generally does not, although certain trust information must be disclosed to beneficiaries on request.
- Disability planning. A successor trustee can manage your affairs if you become incapacitated, often avoiding an Article 81 guardianship proceeding.
For a deeper discussion of the benefits and trade-offs, see benefits of a living trust and which assets can and cannot go into a revocable trust.
Irrevocable Trusts for Asset Protection and Medicaid
Unlike a revocable trust, a properly drafted and funded irrevocable trust can shield principal from future creditors and can remove assets from your countable estate for Medicaid purposes. The trade-off is that you give up the ability to freely revoke the trust or reclaim the principal. This is the core distinction that surprises many clients: only an irrevocable trust offers genuine asset protection, because the law treats assets you can take back as still belonging to you.
For Medicaid planning, timing is critical. New York imposes a five-year (60-month) look-back period for institutional (nursing home) Medicaid; transfers into an irrevocable Medicaid trust within that window can create a penalty period of ineligibility. New York's community-based (home care) Medicaid look-back, long absent, has been the subject of repeated legislative implementation delays — another reason planning well in advance matters. Because these rules change and are fact-specific, we coordinate trust design with your eligibility timeline rather than promising any outcome. See our related guidance on a Medicaid trust.
Special Needs (Supplemental Needs) Trusts
If you have a disabled child or relative who receives means-tested benefits such as Medicaid or SSI, an outright inheritance can disqualify them. A Supplemental Needs Trust, authorized in New York under EPTL 7-1.12, holds assets for their benefit without counting against eligibility, supplementing rather than replacing government benefits. We draft both third-party trusts (funded by you) and first-party/payback trusts (funded with the beneficiary's own assets). See benefits of a special needs trust.
Trusts to Reduce New York Estate Tax
New York imposes its own estate tax separate from the federal tax. The New York basic exclusion amount is adjusted annually (in the multi-millions, but well below the much larger federal exemption), and New York has a notorious "estate tax cliff": if your taxable estate exceeds the exclusion by more than 5%, the exclusion phases out entirely and tax is owed on the whole estate, not just the excess. Careful planning around that threshold can make an enormous difference. Tools we use include credit shelter (bypass) trusts, QTIP trusts to defer tax to the surviving spouse, and Irrevocable Life Insurance Trusts (ILITs) that keep policy proceeds out of the taxable estate. Advanced techniques such as GRATs and IDGTs are discussed on our advanced New York estate planning page.
Our Process, Timeline, and What to Expect
- Goals consultation. We identify whether your priority is probate avoidance, Medicaid eligibility, asset protection, tax reduction, or providing for a disabled or minor beneficiary. Different goals call for different trusts.
- Design and drafting. We prepare the trust instrument together with any supporting documents, such as a pour-over will, durable power of attorney, and health care proxy.
- Execution. We supervise signing with the formalities required by EPTL 7-1.17 so the trust is valid and defensible.
- Funding. We re-title bank and brokerage accounts, real property deeds, and other assets into the trust, and review beneficiary designations. This step is where many do-it-yourself trusts fail.
A straightforward revocable trust package is generally completed within a few weeks; complex Medicaid or estate-tax planning takes longer because of asset transfers and benefit timing. Fees are typically quoted as a flat fee for a trust package after the initial consultation, so you know the cost up front.
Frequently Asked Questions
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Does a revocable trust protect my assets from a nursing home?
No. Because you can revoke it, the assets remain countable. Only a properly structured irrevocable trust, funded outside the Medicaid look-back period, offers that protection.
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Are trusts public record in New York?
Generally no — unlike a probated will. However, beneficiaries have rights to certain information about a trust. See are trusts public record and beneficiaries' rights to trust information.
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Do I still need a will if I have a trust?
Yes. We pair a trust with a "pour-over" will to capture any asset not transferred into the trust during your lifetime and to name guardians for minor children.
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What happens to my revocable trust when I die?
It becomes irrevocable, and the successor trustee distributes the assets according to your instructions, typically without Surrogate's Court involvement.
Speak With a New York Trust Attorney
Albert Goodwin, Esq. is a New York attorney who handles trust and estate planning for clients throughout New York City — New York County (Manhattan), Kings County (Brooklyn), Bronx County, Queens County, and Richmond County (Staten Island) — as well as Nassau, Suffolk, and Westchester counties. To discuss creating a trust suited to your goals, call (212) 233-1233.
This page is for general information and is not legal advice. Trust, Medicaid, and tax rules change and depend on your specific facts; consult an attorney about your situation. Reviewed for accuracy upon publication.
