Trust vs. Will in New York: Which Do You Actually Need?

By Albert Goodwin, Esq. — New York estate planning and probate attorney, Law Offices of Albert Goodwin. Reviewed and updated for 2024.

This article explains New York law only. Trust and estate rules differ in every state, and the right choice depends on your specific assets, family, and goals. Nothing here is legal advice or a guarantee of any outcome.

A will and a revocable living trust both answer the same basic question — who gets your property when you die — but they do it through completely different legal mechanisms, with very different consequences for cost, privacy, probate, and control. Most New Yorkers do not actually need both, and many people who are sold a trust would have been served just as well by a simple, properly executed will. This guide is built to help you make the decision, not to push you toward one product.

The core difference

A will only takes effect when you die. Until then, your assets stay in your own name. After death, your nominated executor must file the will with the Surrogate's Court and obtain Letters Testamentary before they can act. That court process is called probate, and it is governed in New York by the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).

A revocable living trust takes effect the moment you sign and fund it. You typically serve as your own trustee while you are alive and competent, so you keep full control. The crucial step — the one people most often skip — is funding: you must actually re-title your house, accounts, and other assets into the name of the trust. A trust that is signed but never funded controls nothing. Assets left in your individual name at death still go through probate, even if you have a trust sitting in a drawer.

Correcting two common myths about execution

You may have read that "a New York will needs two witnesses but no notary, while a trust needs a notary but no witnesses." That is an oversimplification.

• Wills. Under EPTL § 3-2.1, a New York will must be signed at the end by the testator and witnessed by at least two people who sign within 30 days of each other. A notary is not technically required to make the will valid. However, virtually every well-drafted New York will is executed with a self-proving affidavit under SCPA § 1406, in which the witnesses swear before a notary that the formalities were met. That affidavit lets the will be admitted to probate without tracking down and re-questioning the witnesses years later — so in real practice, a notary is involved.
• Trusts. Under EPTL § 7-1.17, a lifetime (inter vivos) trust must be in writing and either (a) signed by the creator and the trustee and acknowledged before a notary, or (b) signed by the creator in the presence of two witnesses who also sign. So a trust does not strictly require both — but it does have its own statutory formalities, and getting them wrong can invalidate the trust.

Trust vs. will: side-by-side comparison (New York)

When a will is the better choice

For many New Yorkers, a will plus a power of attorney and a health care proxy is the right plan. A will tends to win when:

• Your estate is modest or straightforward. If your home passes by deed, your retirement and bank accounts have beneficiary designations or are held jointly, and what's left is small, you may have little reason to incur the cost and ongoing burden of funding a trust.
• You want simplicity now and don't want to re-title assets. A trust only works if you keep funding it as you acquire and sell property. Some people never keep up with it, which defeats the purpose.
• You have minor children and your main concern is naming a guardian. Guardianship of minors is appointed through a will, not a trust.
• You want testamentary trust control without lifetime funding. A will can create a trust at death — for example, holding a child's share until age 25 or 30. This is a key correction to a common misconception: a will does not force everything to be "distributed right away." Through a testamentary trust, a will can stagger distributions much like a living trust. See advantages and disadvantages of a testamentary trust.

When a trust is the better choice

A trust earns its higher cost and complexity when one or more of these apply:

• Privacy matters. New York probate files are public. A trust keeps the size and disposition of your estate out of the public record.
• You own real estate in more than one state. Titling out-of-state property in a trust avoids a separate ancillary probate in each state.
• You want seamless incapacity management. A successor trustee can step in without a court guardianship proceeding.
• You need long-term control or protection. Staggered distributions, protection for a child going through divorce or with creditor problems, special needs planning, or providing for a current spouse while preserving the remainder for children from a prior marriage. An irrevocable trust may also be used for Medicaid planning or creditor protection — but only when drafted as irrevocable and funded well in advance.
• You want to streamline administration. A funded living trust generally lets your successor trustee act without waiting for Surrogate's Court to issue letters. See how to avoid probate in New York.

The honest drawbacks of a trust

Trusts are oversold. Before you sign one, weigh the real downsides:

• Higher upfront cost for drafting, deeds, and re-titling.
• The funding burden. An unfunded trust accomplishes nothing. You must transfer assets in and keep doing so over your lifetime.
• Complexity. More documents, more record-keeping, and possible confusion for your successor trustee.
• Irrevocable trusts mean giving up control. The asset-protection and Medicaid benefits only come from irrevocable trusts — and you cannot freely take those assets back. A revocable living trust, by contrast, offers no creditor or Medicaid protection because you still control everything.
• It does not skip the New York estate tax. See below.

New York estate tax — and the "cliff"

A common myth is that a revocable trust avoids estate tax. It does not. Assets in a revocable trust are still part of your taxable estate. New York imposes its own estate tax separate from the federal tax, with a state exemption (the "basic exclusion amount") that is adjusted periodically — roughly $6.94 million for deaths in 2024.

New York also has an unusual estate tax cliff: if your estate exceeds about 105% of the exemption, you lose the benefit of the exemption entirely and the tax applies to the whole estate, not just the excess. Estates just over the threshold can face a surprisingly large bill. Reducing estate tax requires specific planning techniques — credit shelter (bypass) trusts, life insurance trusts, QTIP elections, and more — covered separately in advanced New York estate planning. The figures above change yearly, so confirm the current numbers with an attorney.

Common New York mistakes we see

• Signing a living trust and never funding it — leaving everything in personal names, so the estate still goes through probate.
• Assuming a revocable trust protects assets from Medicaid or creditors. It does not.
• Letting beneficiary designations on retirement accounts and life insurance conflict with the will or trust. Beneficiary designations override both.
• Forgetting that jointly owned property and "in trust for" (Totten trust) accounts pass outside the will automatically.
• Believing a will forces immediate distribution — when a testamentary trust can hold assets for years.

A simple way to decide

1. Is your estate large, multi-state, or privacy-sensitive? → A trust deserves serious consideration.
2. Do you need asset, creditor, or Medicaid protection? → Consider an irrevocable trust, planned in advance.
3. Do you want to control how and when heirs receive assets? → Either a funded living trust or a testamentary trust inside a will can do this.
4. Is your estate modest with beneficiary designations already in place, and do you mainly want guardianship and clear instructions? → A will plus a power of attorney and health care proxy may be enough.

Frequently asked questions

Does a trust avoid probate in New York?

Yes — but only assets that are actually re-titled into the trust avoid probate. Anything left in your individual name still passes through Surrogate's Court under your will (or by intestacy if there is no will).

Is a will cheaper than a trust?

A will is usually cheaper to create. The trade-off is the cost and delay of probate at death. A trust costs more upfront and requires funding, but can reduce administration costs later. The total cost depends on your assets.

Can a trust be contested?

Yes. Like a will, a trust can be challenged for lack of capacity, undue influence, fraud, or improper execution. In practice, contesting a properly executed and funded trust can be more difficult than contesting a will.

Do I need both a will and a trust?

Often, people with a living trust also sign a short "pour-over" will to catch any assets that were never transferred into the trust and to name a guardian for minor children. Many people with simpler estates need only a will. The right combination is specific to your situation.

Does a revocable trust save estate taxes?

No. A revocable trust does not by itself reduce New York or federal estate tax. Tax savings require specific irrevocable planning structures.

Talk to a New York estate attorney

The trust-versus-will question is rarely one-size-fits-all. The right answer depends on the size and location of your assets, your family circumstances, your concerns about privacy and control, and your tolerance for upfront work. To discuss your specific situation under New York law, contact the Law Offices of Albert Goodwin at 212-233-1233 or [email protected].