For most New Yorkers the honest answer is: you almost certainly need a will, and many people benefit from adding a trust — but the two tools do very different jobs and a will alone rarely covers everything. A will directs who inherits your property and names a guardian for minor children, but it must pass through probate in the Surrogate’s Court. A trust can let assets pass outside of probate, protect assets from long-term care costs, and plan for taxes. The right answer depends on your family, your assets, and your goals. Below we answer the most common questions New Yorkers ask, in plain language, so you can decide what your plan actually needs.
Q: What does a will actually do in New York?
A will is the foundational document of almost every estate plan. Under EPTL §3-2.1, a valid New York will requires two attesting witnesses, the testator must sign at the end of the document, and the signing must be “published” (you declare to the witnesses that the document is your will). A will lets you:
- Name who inherits your property and in what shares
- Appoint an executor to carry out your wishes
- Nominate a guardian for minor children
- Create testamentary trusts that spring into existence after death
If you die without a will (intestate), New York’s intestacy statute, EPTL Article 4, decides who inherits — and that distribution may not match your wishes. A spouse and children, for example, share the estate under a fixed formula, and unmarried partners or stepchildren receive nothing.
The catch: a will only takes effect after death and must be probated. Probate is the court process that proves the will is valid and authorizes your executor to act. It is public, can take months, and involves court oversight. Learn more on our Wills page.
Q: What does a trust do that a will cannot?
A trust is a separate legal arrangement, governed by EPTL Article 7, in which a trustee holds and manages assets for your beneficiaries. The two trusts most New Yorkers consider are very different:
- Revocable living trust. You control it during your lifetime and can change or revoke it at any time. Its main benefit is avoiding probate — assets titled in the trust pass directly to your beneficiaries without court involvement. Important: a revocable trust offers no estate-tax savings and no asset protection, because you still own and control everything.
- Irrevocable trust. Once created, you give up control, and in exchange the assets can be removed from your taxable estate. This is the tool used for tax reduction, asset protection, and Medicaid planning — but transfers are subject to Medicaid’s five-year look-back period.
A special kind of irrevocable trust, the Supplemental (Special) Needs Trust under EPTL 7-1.12, lets a disabled beneficiary inherit without losing means-tested government benefits such as Medicaid and SSI.
Explore options on our Trusts page.
Q: Will vs. Trust — how do they compare?
| Feature | Will (EPTL §3-2.1) | Revocable Trust (EPTL Art. 7) | Irrevocable Trust (EPTL Art. 7) |
|---|---|---|---|
| Avoids probate | No | Yes | Yes |
| Effective during lifetime | No (death only) | Yes | Yes |
| You keep control | N/A | Yes | No |
| Estate-tax reduction | No | No | Yes |
| Asset / Medicaid protection | No | No | Yes (5-year look-back) |
| Names guardian for minors | Yes | No | No |
| Private (not public record) | No | Yes | Yes |
The takeaway: a will and a trust are complements, not competitors. Many New Yorkers use a “pour-over” will alongside a revocable trust so anything left out of the trust still passes under the will.
Q: I’m not wealthy — do I still need a trust?
Possibly. People often assume trusts are only for the rich, but the most common reasons New Yorkers create trusts have nothing to do with the estate tax:
- Avoiding probate delays for a home, brokerage accounts, or out-of-state property
- Medicaid planning to protect a home or savings from nursing-home costs (using an irrevocable trust and starting the five-year clock early)
- Privacy, because probated wills become public records
- Providing for a disabled child through a special needs trust
If your goals include any of these, a trust may be worth it even with a modest estate.
Q: What about the New York estate tax in 2026?
For deaths on or after January 1, 2026 through December 31, 2026, New York provides a basic exclusion of $7,350,000. Estates under that amount owe no New York estate tax. But New York has a notorious “cliff.” Once your taxable estate exceeds 105% of the exclusion — $7,717,500 — you lose the ENTIRE exemption, and the estate is taxed from the first dollar. Rates are progressive, from 3% to 16%.
Two more points New Yorkers often miss:
- New York has no gift tax, so lifetime gifting can reduce a taxable estate.
- However, gifts made within three years of death are added back into the taxable estate.
Planning around the cliff — often with irrevocable trusts and carefully timed gifts — can save a family hundreds of thousands of dollars. See our NY Estate Tax Guide for details.
Q: What does a complete New York estate plan look like?
A will or trust alone is never the whole picture. A coordinated New York plan includes four documents working together:
- Will (EPTL §3-2.1) — directs your property and names guardians.
- Trust(s) (EPTL Article 7) — for probate avoidance, tax, or Medicaid planning.
- Durable Power of Attorney (GOL §5-1513) — the 2021 statutory short form lets a trusted agent manage your finances if you become incapacitated; it is durable by default.
- Health Care Proxy (NY Public Health Law Article 29-C) — appoints an agent for your medical decisions, separate from the financial POA.
Without the POA and health care proxy, your family may need a costly court guardianship proceeding if you lose capacity. Review our Estate Planning Overview to see how these pieces fit together statewide.
Frequently Asked Questions
Q: Can a trust completely replace my will?
A: No. Even with a fully funded living trust, you still need a “pour-over” will to catch any assets not titled in the trust and — critically — to nominate a guardian for minor children, which a trust cannot do.
Q: Does a revocable living trust save estate taxes?
A: No. Because you keep full control, the assets remain in your taxable estate. Estate-tax savings require an irrevocable trust.
Q: How long do I have to wait after funding a Medicaid trust?
A: New York applies a five-year look-back for nursing-home Medicaid. Transfers to an irrevocable trust should be made well in advance, which is why early planning matters.
Q: Is a New York will valid if I sign it without a lawyer?
A: It can be, if it meets EPTL §3-2.1 (two witnesses, signature at the end, publication). But small mistakes can void the will or trigger probate disputes, so professional drafting is strongly recommended.
Speak With a New York Estate Planning Attorney
Choosing between a will, a trust, or both is not a one-size-fits-all decision — it depends on your family, your assets, and your goals across New York State. At Morgan Legal Group, Russel Morgan, Esq. and our team build coordinated plans that protect your family, your home, and your legacy.
Schedule your consultation today: https://calendly.com/russel-morgan/30min
Further reading from Morgan Legal Group: the New York estate planning guide.