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

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. Reviewed for 2026 New York estate tax, federal exemption, and Medicaid figures.

This guide answers one question: for a person who lives in New York, is a will enough, or does a trust earn its added cost? It is not a survey of estate planning. If you already know you want a trust, our guide to the benefits of a living trust goes deeper on that document. If you want to understand the court process a will goes through, read a sample NYC probate timeline. This page sits between those: it is for the person who has not yet decided.

The analysis below applies New York law, principally the Estates, Powers and Trusts Law (EPTL), the Surrogate's Court Procedure Act (SCPA), Tax Law § 952, and Social Services Law § 366. Advice built around another state's rules, or around a national online form, often fails here for reasons explained in each section.

The Short Answer

For many New Yorkers a will, a statutory power of attorney, and a health care proxy are enough. A trust earns its cost when at least one of the following is true:

• You own real property in more than one state. A will triggers probate in New York and an ancillary proceeding in each other state where you hold real estate. A funded trust avoids both.
• Your heirs are hard to find, hard to reach, or likely to fight. New York probate requires notice to every distributee under EPTL § 4-1.1, even those you cut out. A missing cousin or an estranged child can stall a will for months. A trust does not require that notice.
• You want someone to manage your assets if you lose capacity, without a court. A revocable trust with a successor trustee does this. A will does nothing until death.
• You want privacy. A will filed in Surrogate's Court is a public record. A trust is not filed anywhere.
• You are planning for nursing home costs. Only an irrevocable trust, funded at least five years before you apply, protects assets from Medicaid spend-down. A will and a revocable trust do nothing here.
• You have a beneficiary who receives SSI or Medicaid. An outright inheritance under a will can cut off benefits. A supplemental needs trust under EPTL § 7-1.12 preserves them.

If none of those apply, a will is usually the right answer, and spending more on a trust buys little. The rest of this page explains why.

What a Will Does Under New York Law

A will directs who receives your probate assets, names an executor, and can nominate a guardian for minor children. It has no legal effect until it is admitted to probate by the Surrogate's Court of the county where you were domiciled (SCPA § 205). Until then your executor has no authority to sell the house, close an account, or pay a bill.

New York's execution rules are in EPTL § 3-2.1. The will must be in writing. You must sign at the end, in the presence of each witness or by acknowledging your signature to each of them. You must declare to the witnesses that the document is your will. At least two witnesses must sign, within 30 days of each other, and should add their addresses. New York does not recognize a handwritten, unwitnessed will except for members of the armed forces during a conflict and mariners at sea (EPTL § 3-2.2). A will signed with one witness, or signed on page three with a blank page after it, invites a contest.

A will does not avoid probate. It is the document probate is about. The court checks that it was signed correctly, that you had capacity, and that every person who would inherit under intestacy has been notified or has signed a waiver. Where a distributee cannot be found, the court may require a kinship search or publication. Where a distributee objects, the matter becomes a will contest. Our page on contesting or defending a will covers that process.

One more point that surprises families: assets with a named beneficiary (life insurance, retirement accounts, payable-on-death bank accounts) and assets held jointly with right of survivorship pass outside the will no matter what the will says. If you leave everything to your three children in your will but your largest account names one child as beneficiary, that child keeps the account.

What a Trust Does Under New York Law

A trust is an arrangement in which a trustee holds title to assets for the benefit of beneficiaries. You can be your own trustee during life and name a successor to take over at incapacity or death. Assets titled in the trust do not pass through Surrogate's Court.

New York imposes its own formalities on lifetime trusts. Under EPTL § 7-1.17, a lifetime trust must be in writing and either (a) signed and acknowledged before a notary in the manner required to record a deed, or (b) signed in the presence of two witnesses who also sign. Any amendment or revocation must follow the same formalities. A trust form from a national website that is signed but not notarized or witnessed is not a valid New York trust.

Under EPTL § 7-1.16 a lifetime trust is irrevocable unless the document expressly reserves the right to revoke it. Draft it carelessly and you may have given your assets away permanently.

The trust protects only what is actually transferred into it (EPTL § 7-1.18). A trust document sitting in a drawer while your house remains in your individual name accomplishes nothing. Funding a New York trust means:

• Real property: a new deed from you to yourself as trustee, recorded with the county clerk (ACRIS in the five boroughs), with Form TP-584 and RP-5217. A transfer to your own revocable trust for no consideration is generally exempt from transfer tax, and federal law (12 U.S.C. § 1701j-3(d)(8)) prevents a lender from calling a mortgage because of the transfer.
• Cooperative apartments: a co-op is personal property, not real estate. Transferring shares to a trust requires the board's consent and an assignment of the proprietary lease. Many Manhattan and Brooklyn boards permit it; some do not. Check before you pay for a trust whose main purpose is the apartment.
• Bank and brokerage accounts: retitling in the name of the trust, or naming the trust as payable-on-death beneficiary.
• Retirement accounts: these are never retitled into a trust during life. The trust may be named as beneficiary, but that decision has income tax consequences and needs separate analysis.

Our guide to which assets can and cannot go into revocable trusts covers the funding question in detail.

Side-by-Side Comparison for New York Residents

Six New York Scenarios and the Document That Fits Each

The scenarios below are hypothetical illustrations built from fact patterns common in the Queens, Kings, and New York County Surrogate's Courts. They are not descriptions of actual clients or results.

1. Single homeowner in Queens, one adult child, estate under $2 million

A widow owns a two-family house in Flushing, has about $400,000 in bank and brokerage accounts, and has one daughter who lives in Nassau County. She wants everything to go to the daughter.

A will is usually enough here. The daughter is the sole distributee, so there is no one else to notify or who could object. Queens probate for an estate like this, with a self-proving affidavit attached to the will, is routine. The accounts can carry payable-on-death designations naming the daughter, which keeps them out of probate without a trust. A statutory power of attorney and health care proxy handle incapacity.

The answer changes if the daughter lived in another country (service and waivers become slower), if the mother expects to need long-term care within the next decade (see scenario 6), or if she wants the house to pass to the daughter while the mother is alive but incapacitated. In those cases a trust is worth the added cost.

2. Second marriage, children from a first marriage, co-op in Brooklyn

A man in Park Slope remarried at 62. He has two adult children from his first marriage and wants his second wife to live in the co-op for her lifetime, with the apartment and his investments then going to his children.

A simple will does this badly. If he leaves everything to his wife, she can later leave it to anyone, including her own children. If he leaves everything to his children, his wife can exercise her right of election under EPTL § 5-1.1-A and take one-third outright, defeating the plan either way.

The better structure is a trust for the wife's lifetime benefit, with the children as remainder beneficiaries, drafted so that it satisfies the elective share. That can be a testamentary trust inside the will or a lifetime revocable trust. A lifetime trust is usually preferred here: it keeps the arrangement private, it avoids a probate proceeding in which the children and the second wife receive formal notice and an opening to object, and the co-op board approval can be obtained while he is alive. He should confirm the board will accept a trust as shareholder before deciding.

3. Parents of an adult child receiving SSI and Medicaid

A couple in Forest Hills has three children. One has a developmental disability, lives in a supported residence, and receives SSI and Medicaid. The parents want to leave him an equal share.

An outright gift under a will would disqualify him from SSI the month it is received, because SSI counts resources over $2,000. The share must instead pass to a third-party supplemental needs trust under EPTL § 7-1.12, which allows a trustee to pay for things benefits do not cover without the assets counting against him. Because the parents are funding it with their own money, there is no Medicaid payback requirement at his death, unlike a first-party trust.

The trust can be built into the will (testamentary) or created now as a standalone document. We generally recommend the standalone trust. Grandparents and other relatives can name it in their own wills and beneficiary designations, and it exists immediately if a parent dies before the will is probated. For more on the structure, see the benefits of a special needs trust.

4. Manhattan estate near the New York cliff

A single woman owns a condominium on the Upper West Side worth $3.9 million, has $3.5 million in investments, and holds $300,000 in retirement accounts. Her estate is about $7.7 million. She has a will leaving everything to her nieces and nephews.

A revocable trust would save her estate the cost and delay of probate, but it would not change her tax bill by a dollar. Her problem is the cliff described in the next section. At $7.7 million she is over 105 percent of the 2026 exclusion and her entire estate is taxed, producing New York estate tax of roughly $730,000. If she reduces her taxable estate to $7.35 million through lifetime gifts made more than three years before death, charitable bequests, or both, the New York tax is zero. Here the right documents are an irrevocable gifting strategy and a charitable provision, with a trust or will as the vehicle. The advanced New York estate planning techniques guide covers the specific tools.

5. Married couple where one spouse is not a United States citizen

A couple in Astoria owns a house and investments worth $4 million. The husband is a citizen; the wife is a permanent resident. His will leaves everything to her.

Transfers to a citizen spouse are fully deductible for both federal and New York estate tax. Transfers to a non-citizen spouse are not, under Internal Revenue Code § 2056(d), unless they pass into a qualified domestic trust (QDOT) under § 2056A. New York follows the federal marital deduction rules. At $4 million the estate is under the New York exclusion, so there is no immediate New York tax, but the planning matters if assets grow, and it matters a great deal for larger estates. A will with a QDOT provision, or a revocable trust containing one, is the fix. A simple outright bequest is not.

6. Seventy-year-old homeowner worried about nursing home costs

A retired teacher in Bay Ridge owns her home outright, worth $1.2 million, and has $250,000 in savings. She is healthy now but her mother spent four years in a nursing home and she does not want the house sold to pay for care.

Neither a will nor a revocable trust helps. Nursing home Medicaid treats assets in a revocable trust as fully available, and New York recovers against the probate estate after death (SSL § 369). The only document that works is an irrevocable Medicaid asset protection trust, funded now so that the 60-month look-back under SSL § 366(5) expires before she needs care. She keeps the right to live in the house, keeps her STAR and senior exemptions, and can retain a limited power to redirect who inherits. She gives up the right to sell the house and keep the proceeds. Done at 70 in good health this plan usually succeeds. Done at 84 after a hospital discharge, it usually does not.

The New York Estate Tax Cliff, With Numbers

New York's estate tax is set out in Tax Law § 952. For deaths in 2026 the basic exclusion amount is $7,350,000. The federal exclusion for 2026 is $15,000,000 per person, made permanent and indexed by the One Big Beautiful Bill Act signed in July 2025. The gap between those two numbers is where most New York tax planning happens: an estate of $9 million owes nothing to the IRS and a large amount to Albany.

The cliff works through the credit mechanism in § 952(c). If your taxable estate is at or below $7,350,000, the credit wipes out the tax. If it exceeds $7,350,000 but is no more than 105 percent of that figure ($7,717,500), the credit is reduced proportionally. If it exceeds $7,717,500, the credit disappears and the entire estate is taxed from the first dollar at graduated rates from 3.06 percent to 16 percent.

Applying the rate table in § 952(b):

• Taxable estate of $7,350,000: New York estate tax of $0.
• Taxable estate of $7,500,000: tentative tax of about $705,200, reduced by a partial credit of about $405,300, for tax of roughly $300,000. The extra $150,000 of assets costs the heirs roughly $300,000.
• Taxable estate of $7,720,000: no credit. Tax of about $735,100 on the whole estate.

Two New York rules make this worse than it looks. First, New York has no gift tax, but Tax Law § 954(a)(3) adds back any taxable gift made within three years of death. A deathbed transfer to get under the cliff does not work. Second, the figures above assume a single person. Married couples can defer all tax at the first death through the marital deduction, but New York does not allow portability of a deceased spouse's unused exclusion. Without a credit shelter trust at the first death, the surviving spouse's estate may face the cliff alone with a combined estate that two exclusions could have sheltered. That trust can live in a will or in a revocable trust; what matters is that it exists.

Medicaid: Where the Look-Back Stands in 2026

New York applies a 60-month look-back to nursing home (institutional) Medicaid under SSL § 366(5). Transfers for less than fair value within that window produce a penalty period calculated by dividing the amount transferred by the regional monthly nursing home rate published by the Department of Health.

Community Medicaid, which pays for home care, has historically had no look-back. The 2020 state budget enacted a 30-month look-back for community-based long-term care (SSL § 366(5)(e)). As of this writing, the Department of Health has not implemented it. Implementation has been postponed repeatedly and requires federal approval. Until it takes effect, a transfer to an irrevocable trust can produce eligibility for home care with no waiting period, while the same transfer starts a five-year clock for nursing home coverage. Anyone relying on this gap should confirm the current status before acting, because it can close with a notice in the State Register.

New York's estate recovery under SSL § 369 reaches only the probate estate. Assets that pass through a properly funded trust, or by joint ownership or beneficiary designation, are outside it under current state rules. That is a second reason an irrevocable trust, not a will, is the document for this planning.

Four Things a Trust Will Not Do

• It will not eliminate the need for a will. Anyone with a living trust also needs a pour-over will under EPTL § 3-3.7 to catch assets left outside the trust, and to nominate guardians for minor children. If the pour-over will has to be probated because an asset was missed, the probate-avoidance benefit is lost for that asset.
• It will not defeat your spouse. Assets in a revocable trust are testamentary substitutes under EPTL § 5-1.1-A(b)(1)(F). A surviving spouse can elect against them.
• It will not protect you from your own creditors while it is revocable. EPTL § 7-3.1 voids self-settled spendthrift protection. A revocable trust is an open book to a judgment creditor.
• It will not lower your estate tax. A revocable trust is ignored for both federal and New York estate tax. Only irrevocable transfers change the number.

Documents You Need in Either Case

Neither a will nor a trust covers medical decisions, and a trust covers only assets inside it. Every New York plan should include:

• A statutory short form power of attorney under GOL § 5-1501B. Since June 13, 2021 the form must be signed and dated by you, acknowledged before a notary, and witnessed by two people, neither of whom is named as an agent or as a permitted recipient of gifts. The notary may serve as one witness. Gifting authority above the annual exclusion must be written into the modifications section; the old separate gifts rider no longer exists. A form that substantially conforms to the statute is valid, and GOL § 5-1504 allows a court to award attorney fees against a bank that unreasonably refuses it. Forms signed before 2021 under the old rules remain valid, but many institutions resist them.
• A health care proxy under Public Health Law § 2981. Two adult witnesses; the agent may not be a witness.
• A living will. New York has no living will statute, but the Court of Appeals recognizes clear and convincing written evidence of your wishes.

Our page on advance directives in New York covers each of these in more detail.

How We Work Through the Decision

At a first meeting we ask for a list of what you own and how each asset is titled, the current beneficiary designations, a family tree that includes anyone who would inherit under EPTL § 4-1.1 if you had no will, and any prior will, trust, deed, or power of attorney. From that we identify who your distributees are, whether any of them would complicate probate, whether your estate is within reach of the New York exclusion, and whether long-term care planning is realistic given your age and health.

In most cases the recommendation is one of three: a will with a power of attorney and health care proxy; a revocable trust with a pour-over will and the same incapacity documents; or an irrevocable trust for Medicaid or tax purposes, with a will to cover the rest. We explain the fee for each before you decide. New York court rules (22 NYCRR Part 1215) require a written engagement letter whenever fees are expected to exceed $3,000, and we provide one for every engagement.

Frequently Asked Questions

Does a New York trust have to be notarized or witnessed?

Yes. EPTL § 7-1.17 requires a lifetime trust to be signed and either acknowledged before a notary or signed in front of two witnesses who also sign. Amendments and revocations must follow the same rule. An unwitnessed, unnotarized trust is not valid in New York even if the form says otherwise.

If I have a revocable trust, can my spouse still claim an elective share?

Yes. Assets in a revocable trust are testamentary substitutes under EPTL § 5-1.1-A(b). A surviving spouse may claim the greater of $50,000 or one-third of the net estate, including those assets, unless the spouse waived the right in a prenuptial or postnuptial agreement that meets the statute's formalities.

Can I put my New York City co-op into a trust?

Often, but only with the board's consent. Co-op shares are personal property governed by the proprietary lease, which almost always requires board approval for any transfer. Many boards approve transfers to a revocable trust where the shareholder remains the occupant and signs a personal guaranty. Some boards refuse. Ask before you draft.

What happens to an asset I forget to put in my trust?

It passes under your pour-over will, which means it goes through probate. If its value is $50,000 or less in personal property, your family may be able to use the small-estate procedure under SCPA § 1301 instead of full probate. Real property never qualifies for that procedure.

Does an irrevocable trust avoid the three-year gift add-back?

No. A transfer to an irrevocable trust is a gift. If you die within three years of the transfer, Tax Law § 954(a)(3) adds the value back to your New York taxable estate. The trust can still protect the asset from Medicaid and from probate; it just does not reduce New York estate tax until three years have passed.

Related Guides

• How to avoid probate in New York: the full list of non-probate transfers.
• Advantages and disadvantages of a testamentary trust: when a trust inside your will is the better fit.
• Are trusts public record in New York?
• Inheritance disputes: what happens when the plan is challenged.

Talk to a New York Estate Planning Attorney

If you are weighing a will against a trust and want an answer based on your assets, your family, and the county where your estate would be administered, we can help. The Law Offices of Albert Goodwin has offices in Manhattan, Brooklyn, and Queens. Call 212-233-1233 or email [email protected] to schedule a consultation.

This guide is general information about New York law as of 2026 and is not legal advice. Tax figures, Medicaid rules, and court procedures change. Consult an attorney before acting on anything described here.