Will vs. Trust in New York – Which Estate-Planning Tool Is Right for You?
Quick Snapshot
| Lasts Only at Death | Avoids Probate | Offers Lifetime Control | Stays Private | |
| Will | ✔︎ | ✘ | ✘ | ✘ (court filing) |
| Revocable Living Trust | ✘ (operates now) | ✔︎ | ✔︎ | ✔︎ |
| Irrevocable Trust | ✘ | ✔︎ | ✘ (once funded) | ✔︎ |
1. What Is a Will?
A Last Will & Testament is a written instrument that directs how your probate assets are distributed after death. In New York, a will must be:
- Signed by the testator (or at the testator’s direction)
- Witnessed by at least two disinterested individuals
- Declared by the testator that the document is their will
(See EPTL § 3-2.1 for formal execution; SCPA § 1402 for probate procedure.)
Key Attributes
- Takes effect only upon death
- Probated in Surrogate’s Court—public, can be contested, often 7–15 months in NYC counties
- Straightforward & inexpensive to draft, ideal for modest estates or when probate is not a burden
2. What Is a Trust?
A trust is a fiduciary arrangement in which one party (the trustee) holds legal title to property for another (the beneficiary).
2.1 Revocable Living Trust (RLT)
- Created during life; grantor usually serves as initial trustee
- Fully amendable and cancellable
- Becomes irrevocable at death; successor trustee distributes assets privately, outside probate
2.2 Irrevocable Trust
- Cannot be changed once executed and funded (EPTL § 7-1.17)
- Used for asset protection, Medicaid eligibility, life-insurance planning, or estate-tax reduction
- Trustee must file annual accountings to beneficiaries
2.3 Testamentary Trust
- Created inside a will; does not avoid probate but can protect minor or disabled beneficiaries after probate closes
3. Will vs. Trust In New York – Seven Core Differences at a Glance
| Dimension | Will | Trust (RLT unless noted) |
| Probate Exposure | Required (SCPA Art. 14) | None for funded assets |
| Privacy | Public court file | Private document |
| Timing & Control | No control during life | Grantor retains control during life (revocable) |
| Funding Needed | None before death | Must retitle assets now |
| Cost Profile | Lower upfront; higher at probate | Higher upfront; lower at administration |
| Creditor/Medicaid Shield | None | Possible with irrevocable trust |
| Ease of Contest | Formal objections in Surrogate’s Court | Challengers must sue in Supreme Court—higher bar |
4. When a Will May Be Enough
- Simple Asset Mix – primarily cash, publicly traded securities, or a single residence titled in one name
- Young Families – focus on naming guardians for minor children; a testamentary trust inside the will can handle inheritance until kids are 21+
- Minimal Probate Delay – counties like Columbia or Greene often finish probate in weeks, not months
- Cost Sensitivity – legal fees for a basic will package are typically one-third to one-half of a full revocable-trust plan
5. Will vs. Trust In New York – Situations That Call for a Trust
| Scenario | Trust Advantage |
| Multiple Properties in Different States | Avoids ancillary probate in each jurisdiction |
| Privacy Concerns (owned business, high-profile family) | Keeps holdings & beneficiaries out of public docket |
| Blended Families / Remarriage | Allows income to spouse while preserving principal for children |
| Anticipated Incapacity | Successor trustee can step in without a court-appointed guardian |
| Estate-Tax Exposure (> $6.94 M NY; > $13.61 M federal in 2025) | Credit-shelter and spousal trusts capture tax exemptions |
| Medicaid Planning | Irrevocable Medicaid Asset Protection Trust starts 2- or 5-year “look-back” clock |
6. Will vs. Trust In New York FAQs
Q. Do I still need a will if I set up a revocable living trust?
Yes—called a “pour-over” will—to catch assets inadvertently left outside the trust and to nominate guardians for minor children.
Q. Can a trust be contested?
Yes, but challengers must file a Supreme Court action, post a filing fee, and prove lack of capacity, fraud, duress, or undue influence—often harder than objecting during probate.
Q. What happens to retirement accounts?
IRAs and 401(k)s pass by beneficiary designation. Many clients name the trust only if minor or disabled beneficiaries require the trustee to stretch withdrawals.
7. Will vs. Trust In New York Drafting Checklist
- Assets Inventory – gather deeds, brokerage statements, business interests
- Choose Fiduciaries – executor vs. trustee; can be same person or corporate trustee
- Beneficiary Designations – align with plan (life insurance, retirement accounts)
- Funding – retitle real estate, reissue stock certificates, sign new bank signature cards
- Ancillary Documents – power of attorney, health care proxy, living will
8. The RK Law PC Difference
At RK Law PC we draft tax-efficient, contest-resistant wills and trusts tailored to New York families:
- Custom packages—no surprise billing
- Court-tested estate litigators ready to defend your plan
- In-house probate & trust-administration team for seamless cradle-to-grave service
Need clarity on your estate plan? Call us today to discuss Will vs. Trust In New York—because peace of mind is the ultimate legacy.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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