Do You Need Both a Will and a Trust in New York?

Reviewed by Albert Goodwin, Esq., New York estate planning and probate attorney, Law Offices of Albert Goodwin. Dollar figures on this page were checked for 2025. New York adjusts several of them each year, so confirm current numbers before relying on them.

The Short Answer

Most New Yorkers who create a living trust also need a will. A revocable trust controls only the assets that are titled in its name. Anything left outside the trust passes under your will. Examples include an account you opened after signing, a tax refund, an inheritance you received late in life, or a car. If you have no will, those assets pass under New York's intestacy rules in EPTL 4-1.1, which may not match your wishes. The will is also the only document that can nominate a guardian for minor children and name an executor with authority to act in Surrogate's Court.

The reverse is not true. Many people need only a will, sometimes with a trust written inside it. Adding a lifetime trust depends on four things: what you own, where the property is located, who will inherit, and whether nursing home or home care costs are a concern.

This page explains how the documents work together under New York law and helps you choose a combination. For detail on a single document, follow the links to our dedicated pages on wills, trusts and advanced planning techniques.

The Four Common Combinations

1. A Will Only

A New York will must meet the execution requirements of EPTL 3-2.1. It must be in writing and signed at the end by the testator. The testator must sign in front of at least two witnesses, or acknowledge the signature to them, and declare that the document is a will. Both witnesses must sign within a single 30-day period. Most wills drafted by lawyers include a self-proving affidavit under SCPA 1406, so the witnesses usually do not need to appear in court later.

A will-only plan has the lowest upfront cost. Every asset in your sole name without a beneficiary designation goes through probate in the Surrogate's Court of the county where you lived. See our page on will drafting in New York City.

2. A Will With a Testamentary Trust

A testamentary trust is written into the will and comes into existence only after the will is admitted to probate. The trustee receives letters of trusteeship from the Surrogate's Court and remains subject to the court's jurisdiction, including accountings under SCPA Article 22. Parents of young children often use this structure. If you leave property to a minor outright, a court-appointed guardian of the property may be needed, and the child generally takes control at 18.

Under EPTL 13-3.3, you can name the testamentary trustee as beneficiary of a life insurance policy. That lets insurance proceeds flow into the same trust as your probate assets. For the trade-offs, see advantages and disadvantages of a testamentary trust.

3. A Revocable Living Trust With a Pour-Over Will

A lifetime trust must be in writing under EPTL 7-1.17. It must be signed by the creator and, unless the creator is the sole trustee, by at least one trustee. The signatures must either be acknowledged in the manner required for recording a deed or witnessed by two people who sign the instrument. Amendments and revocations require the same formalities.

Under EPTL 7-1.18, the trust is valid only as to assets actually transferred to it. That is why the trust needs a pour-over will. EPTL 3-3.7 allows a will to leave property to the trustee of a lifetime trust. The trust must be signed before or at the same time as the will, and the will must identify it.

The creator is usually the initial trustee, but not always. Some people name a co-trustee from the start, such as an adult child or a bank or trust company. When the creator dies or becomes incapacitated, the successor trustee takes over without needing letters from the court. For the general benefits, see benefits of a living trust. For what can and cannot be retitled, see assets that can and cannot go into a revocable trust.

4. Adding an Irrevocable Trust

Some plans add a separate irrevocable trust for a specific purpose. Common examples are:

• a Medicaid asset protection trust that holds a home or savings
• an irrevocable life insurance trust
• a supplemental needs trust for a beneficiary who receives government benefits

These sit alongside the will and, often, a revocable trust. Each document handles a different group of assets.

Comparison Table

What the Pour-Over Will Still Does in Surrogate's Court

A pour-over will does not avoid probate. It directs probate assets into the trust after the court admits the will. If the assets left outside the trust are personal property worth $50,000 or less, the executor may be able to use voluntary administration under SCPA Article 13, the small estate procedure. That procedure does not cover real property. A house or condominium left outside the trust usually means a full probate proceeding.

In a full probate, the executor files a petition under SCPA 1402. Every distributee, meaning the people who would inherit if there were no will, must sign a waiver or be served with a citation under SCPA 1403. This applies even to relatives the will leaves nothing. In New York City counties, receiving letters testamentary can take several months or longer, depending on the court's workload, whether waivers are signed and whether anyone objects. Our sample NYC probate timeline walks through each stage, and our page on letters testamentary explains the executor's authority.

A fully funded trust keeps most assets out of that process. A small pour-over is normal. A large one usually means the trust was never properly funded. See also ways to avoid probate in New York.

Funding a Trust With New York City Property

Signing a trust does nothing for real estate until the property is transferred. Each type of property has its own steps.

• Houses and condominium units: A new deed from you to yourself as trustee is recorded with the City Register through ACRIS. The New York State TP-584 and the NYC Real Property Transfer Tax return must still be filed, even when the transfer to your own revocable trust results in no transfer tax. Condominium bylaws may require a waiver of the board's right of first refusal.
• Mortgages: Federal law (12 U.S.C. 1701j-3(d)(8)) generally bars a lender from calling the loan when you transfer your home to a living trust and remain a beneficiary. Notify the lender anyway.
• Title insurance and tax exemptions: Ask your title insurer whether coverage continues or an endorsement is needed. Confirm that STAR, senior citizen and veterans exemptions carry over after the transfer.
• Co-op apartments: Co-op shares and the proprietary lease are personal property. Assigning them to a trust usually requires board consent under the proprietary lease, and some boards add conditions or refuse. If consent is not available, other planning tools may be needed.
• Transfer on death deeds: Since 2024, Real Property Law Section 424 has allowed a transfer on death deed for New York real property. For some owners this is a simpler alternative to deeding a house into a trust. It does not apply to co-op shares.
• Accounts and retirement assets: Bank and brokerage accounts are retitled or given a trust beneficiary. IRAs and 401(k)s are not retitled. They pass by beneficiary designation, which should be coordinated with the trust. See what happens to a bank account with no beneficiary.

New York Estate Tax and the Cliff

New York has its own estate tax under Tax Law Article 26. For deaths in 2025, the basic exclusion amount is $7,160,000. It is indexed for inflation each year, so check the current figure with the New York State Department of Taxation and Finance.

New York's tax has a cliff. If the taxable estate exceeds the exclusion by more than 5% (above $7,518,000 for 2025 deaths), the exclusion disappears and the entire estate is taxed, not just the excess. Between 100% and 105% of the exclusion, the benefit phases out quickly. New York also has no portability. A surviving spouse cannot use the first spouse's unused New York exclusion. Under current law, certain taxable gifts made within three years of death are added back to the New York estate. The federal exemption is far higher, so many New York estates owe New York tax and no federal tax.

A revocable trust by itself saves no estate tax. Married couples near the threshold often include a credit shelter or disclaimer trust, either in each spouse's will or inside the revocable trust. This preserves the first spouse's New York exclusion. That is a common reason to pair a will and trust with specific tax provisions rather than leaving everything outright to the survivor.

Medicaid, Long-Term Care and Trusts

Assets in a revocable trust are fully countable for Medicaid because you can take them back at any time. Only an irrevocable trust, properly drafted, can shelter assets.

For nursing home Medicaid, New York looks back 60 months from the date of application under Social Services Law Section 366(5)(e). Transfers for less than fair value during that period, including transfers to an irrevocable trust, can trigger a penalty period. The penalty is calculated by dividing the amount transferred by a regional monthly rate set by the state. A 30-month look-back for community-based long-term care, such as home care, was enacted in 2020, but its start has been repeatedly delayed. Confirm its current status before planning around it.

A typical New York Medicaid asset protection trust is an income-only trust. You can receive trust income, which remains countable, but you cannot reach the principal. Someone other than you serves as trustee. Because timing matters, a Medicaid trust works best when it is signed well before care is needed. New York currently limits Medicaid estate recovery to the probate estate, which is one more reason to coordinate the will, the revocable trust and any irrevocable trust as a single plan.

Common Misconceptions Corrected

• Irrevocable trusts do not always file their own tax returns: Many irrevocable trusts are drafted as grantor trusts under Internal Revenue Code Sections 671 to 679. Most New York Medicaid asset protection trusts fall into this group. The grantor reports the trust's income on his or her personal federal and New York returns. Grantor trust status can also preserve the capital gains exclusion for a primary residence. A non-grantor irrevocable trust obtains its own taxpayer ID and files federal Form 1041 and New York Form IT-205. A revocable trust is a grantor trust while you are alive and usually becomes a separate taxpayer at your death.
• An irrevocable trust does not automatically defeat a spouse's elective share: Under EPTL 5-1.1-A, a surviving spouse may claim the greater of $50,000 or one-third of the net estate. The net estate includes testamentary substitutes, such as revocable trusts, joint accounts, certain gifts made within a year of death, and lifetime transfers in which the decedent kept the right to income or use of the property. An income-only Medicaid trust can fall into this category. A written, signed and acknowledged waiver under EPTL 5-1.1-A(e), often part of a prenuptial or postnuptial agreement, is the usual way to address the elective share.
• Trusts cannot last until 21 years after the last beneficiary dies: Under EPTL 9-1.1, an interest must vest, and the power to sell trust property cannot be suspended, beyond lives in being when the interest is created plus 21 years. The measuring lives are people alive at that time, not every beneficiary. For a revocable trust, the period generally starts when the trust becomes irrevocable.
• A trust you create for yourself does not protect you from your creditors: Under EPTL 7-3.1, a trust for the creator's own benefit is void against the creator's creditors to that extent. Transfers meant to defeat existing creditors can also be undone under New York's Uniform Voidable Transactions Act (Debtor and Creditor Law Article 10).

Three New York Scenarios

The following examples are illustrative composites, not actual clients. They show how the combinations are typically matched to a family's situation.

A Brooklyn Couple With Two Young Children

They own a house as tenants by the entirety, which passes to the survivor automatically. They have 401(k)s and term life insurance. A will for each spouse that nominates a guardian under Domestic Relations Law Section 81 and creates a testamentary trust for the children often fits. Naming the testamentary trustee as contingent life insurance beneficiary under EPTL 13-3.3 keeps the money out of a child's hands at 18. Because the house passes to the survivor outside probate, a revocable trust may add little cost-saving until both spouses have died. A transfer on death deed or a later revocable trust can address the house at that stage.

A Second Marriage With a Manhattan Co-op

One spouse owns the co-op and an investment account and has adult children from a first marriage. A revocable trust can hold the account and, with board consent, the co-op shares. It can then provide a lifetime trust for the surviving spouse, with the remainder to the children. A pour-over will catches anything left out. Without a valid elective share waiver, the surviving spouse could still claim one-third of the net estate, including the revocable trust assets. The waiver is drafted together with the trust. See also moving assets under one spouse.

A Queens Widow Concerned About Nursing Home Costs

She is 78, owns her home and has modest savings. An irrevocable Medicaid asset protection trust can hold the house, and it can be drafted so she keeps the right to live there. A separate will handles everything else. A durable power of attorney that authorizes gifts and trust transfers, along with a health care proxy, completes the plan. See our page on advance directives. The 60-month look-back starts when the house is transferred, so starting early matters more than any other single factor.

Questions to Answer Before You Choose

• Do you own real property in New York, or in more than one state? Out-of-state real property can require a separate ancillary probate proceeding.
• Do you own a co-op, and will the board consent to a trust transfer?
• Do you have minor children or a beneficiary with a disability?
• Is your estate, including life insurance and retirement accounts, near New York's exclusion amount?
• Is this a first or later marriage, and is there a prenuptial agreement?
• Could you need nursing home or home care in the next five to ten years?
• Do you want your plan kept out of the public court file? See are trusts public record.

Frequently Asked Questions

If I have a living trust, will my estate still go to Surrogate's Court?

Only for assets left outside the trust. If those are limited personal property worth $50,000 or less, the small estate procedure may apply. If real property or larger sums were never transferred, your executor will need to probate the pour-over will. Trust beneficiaries can also bring a proceeding in Surrogate's Court if they believe the trustee is not doing the job. See beneficiaries' rights to trust information.

What happens to assets I forget to put in my trust?

Your pour-over will sends them to the trust after probate, and they are then distributed under the trust's terms. They do not pass under intestacy. They do go through the court process the trust was meant to avoid, with the delay and filing fees that come with it.

Can one trust handle both probate avoidance and Medicaid planning?

Usually not. A revocable trust avoids probate but gives no Medicaid protection, because you can revoke it. An irrevocable Medicaid trust also avoids probate for the assets it holds, but you lose access to the principal. Most people who want both keep a revocable trust for liquid assets they may need and an irrevocable trust for assets such as a home.

Does a trust replace the need to name a guardian for my children?

No. A trust can manage money for children, but only a will (or a separate written designation under Domestic Relations Law Section 81) can nominate a guardian of the person.

I signed my will and trust in another state. Are they valid in New York?

Under EPTL 3-5.1, New York generally accepts a will that was validly executed under the law of the place where it was signed or where you lived. A review is still worthwhile after a move. Executor and trustee choices, estate tax provisions and Medicaid planning were likely drafted for the other state's rules.

Sources

• New York Estates, Powers and Trusts Law (EPTL): 3-2.1, 3-3.7, 3-5.1, 4-1.1, 5-1.1-A, 7-1.17, 7-1.18, 7-3.1, 9-1.1 and 13-3.3
• New York Surrogate's Court Procedure Act (SCPA): 1402, 1403, 1406, Article 13, Article 22 and 2402
• New York Real Property Law Section 424 and Domestic Relations Law Section 81
• New York Tax Law Article 26 and New York State Department of Taxation and Finance estate tax guidance
• New York Social Services Law Section 366 and New York State Department of Health Medicaid guidance
• Internal Revenue Code Sections 671 to 679 and 12 U.S.C. 1701j-3

This page provides general information about New York law. It is not legal advice for your situation.

Talk With a New York Estate Planning Attorney

The right combination of will and trusts depends on your property, your family and your timeline. The Law Offices of Albert Goodwin prepares wills, revocable and irrevocable trusts, and the deeds and transfers needed to fund them. We have offices in New York City, Brooklyn and Queens. Call 212-233-1233 or email [email protected] to schedule a consultation.