Every week, someone sits down across from me and asks the same question: "Do I need a will, a trust, or both?" It's a fair question. The answer depends on who you are, what you own, and what you want to happen after you're gone.
What I've found after 20-plus years in New York estate planning is that most people need both — but for different reasons. Understanding what each document does, and where its limits are, is the first step toward building a plan that actually works.
What Is a Will?
A will — formally, a "Last Will and Testament" — is a written document that directs how your property will be distributed after you die. It also lets you name an executor (the person who manages your estate through the distribution process) and, for parents of minor children, designate a guardian.
For a will to be valid in New York, you must:
- Be at least 18 years old
- Be of sound mind and memory (testamentary capacity)
- Sign the will at its end in the presence of at least two witnesses
- Have two witnesses sign, acknowledging they watched you sign
New York doesn't require notarization for a will to be valid — but a self-proving affidavit (which does require a notary) makes the probate process simpler. Without it, the witnesses may need to be located and deposed during probate.
What a Will Can Do
- Name who receives your property
- Designate a guardian for minor children — this is the only way to do this
- Name an executor
- Create testamentary trusts (trusts that spring into existence at death)
- Express wishes about burial and funeral arrangements
- Disinherit specific individuals (within certain limits)
What a Will Cannot Do
- Avoid probate — assets distributed through a will always go through probate
- Control assets with beneficiary designations (IRAs, 401(k)s, life insurance, POD accounts)
- Control jointly-held property with right of survivorship
- Protect assets from Medicaid consideration
- Provide for asset management during incapacity (that's the power of attorney's job)
A will is a public document once it enters probate. Anyone can request a copy from Surrogate's Court. If privacy matters to you — and it matters to many of my clients — that's a significant consideration.
What Happens If You Die Without a Will in New York
Dying without a will is called dying "intestate." New York's intestacy laws — found in the Estates, Powers and Trusts Law (EPTL) — dictate how your estate is distributed. The formula doesn't care about your relationships, your wishes, or your family dynamics.
Under New York's intestacy rules:
- If you're married with children, your spouse gets the first $50,000 plus half of the remainder; children split the rest
- If you're married with no children, the spouse gets everything
- If you're unmarried with children, children get everything in equal shares
- If you have no spouse or children, assets go to parents, then siblings, then more distant relatives
Unmarried partners — even long-term ones — get nothing under intestacy. Neither do stepchildren who weren't formally adopted. The law distributes by blood and legal relationship, not by love or intent.
What Is a Trust?
A trust is a legal arrangement where one person (the trustee) holds and manages assets for the benefit of another (the beneficiary). You can be your own trustee and beneficiary during your lifetime — as in a revocable living trust. Or you can create a trust for someone else's benefit.
Unlike a will, a trust takes effect during your lifetime (not just at death). Assets held in a trust don't go through probate. The trust document is private — it never enters the court system unless there's a dispute.
Types of Trusts in New York
There are many types of trusts, each serving different purposes. Here are the most common ones in New York estate planning:
Revocable Living Trust
You create it, fund it with your assets, and serve as your own trustee. You can change it or revoke it at any time during your lifetime. When you die, a successor trustee distributes assets to your beneficiaries — no probate. This is the workhorse of probate-avoidance planning. See our guide on what is a living trust in New York for a detailed breakdown.
Irrevocable Trust
Once created, you generally can't take it back or change it. You give up control over the assets in exchange for other benefits — asset protection, Medicaid planning eligibility, estate tax reduction. Irrevocable trusts also avoid probate.
Medicaid Asset Protection Trust (MAPT)
A specific type of irrevocable trust designed to protect assets from Medicaid's five-year look-back. Assets transferred to a MAPT more than 60 months before a nursing home Medicaid application don't count against you. This is a core tool in elder law practice — see our post on what Medicaid planning in New York involves.
Testamentary Trust
A trust created inside a will that springs into existence when you die. It doesn't avoid probate (the will still goes through probate), but it allows assets to be managed for beneficiaries who aren't ready for outright distribution — minor children, young adults, or individuals with special needs.
Special Needs Trust (Supplemental Needs Trust)
Designed for beneficiaries with disabilities who receive or may receive government benefits like Medicaid or SSI. A direct inheritance would disqualify them from those benefits. Assets held in a special needs trust supplement — but don't replace — government benefits. See our guide on estate planning for parents in New York for more on trusts for children with disabilities.
Irrevocable Life Insurance Trust (ILIT)
Holds a life insurance policy outside of your estate. When you die, the life insurance proceeds don't count as part of your taxable estate — a significant benefit if your estate is large enough to face New York or federal estate tax.
Will vs. Trust: The Core Differences
| Feature | Will | Revocable Living Trust |
|---|---|---|
| Avoids probate? | No — always goes through probate | Yes — assets pass privately |
| Privacy | Public record once probated | Private document |
| Effective when? | Only at death | During lifetime AND at death |
| Names guardian for children? | Yes — only a will can do this | No |
| Covers incapacity? | No | Yes — successor trustee steps in |
| Upfront cost | Lower | Higher (but saves probate costs) |
| Requires funding | No | Yes — assets must be transferred in |
Do You Need Both?
Almost always, yes. Here's why.
Even if you have a fully funded revocable living trust, you need what's called a "pour-over will." This catches any assets that aren't in the trust at death — because of an oversight, a newly acquired asset, or something you forgot to title correctly. The pour-over will directs those stray assets into the trust, where they're then distributed according to the trust's terms. (They still go through probate, but at least they end up in the right place.)
And as I mentioned above, only a will can designate a guardian for minor children. That alone makes a will non-negotiable for parents.
When a Will Alone Is Enough
A will by itself may be sufficient if:
- Your estate is modest and under New York's small estate threshold
- You have no real estate (or all your real estate is jointly owned with right of survivorship)
- All your financial accounts have current beneficiary designations
- You're not concerned about privacy or the time/cost of probate
- Medicaid planning isn't a near-term concern
For a 30-year-old with a modest checking account, a 401(k) with a named beneficiary, and rented apartment — a simple will may cover everything needed right now.
When a Trust Is Worth the Extra Investment
A revocable living trust makes the most sense when:
- You own real estate in New York (avoiding probate on real property is especially valuable)
- You have significant investment or savings accounts
- You want privacy about how your estate is distributed
- You want seamless management of assets if you become incapacitated
- You have a blended family or complicated family dynamics
- You own property in multiple states (avoiding ancillary probate in each state)
- You're starting to think about Medicaid planning (an irrevocable trust is different from a revocable one, but the relationship matters)
A trust that isn't funded is worthless. Many people spend money on trust documents but never move their assets into the trust. The assets then go through probate anyway. Funding — retitling accounts, deeding real estate, updating beneficiary designations — is not optional. It's the whole point.
New York-Specific Considerations
New York has some quirks that affect the will vs. trust analysis:
Estate tax: New York has its own estate tax, separate from the federal one. The New York estate tax exemption for 2025 is $7.16 million. Estates above that face a top rate of 16%. There's also a "cliff" — if your estate exceeds 105% of the exemption, the entire estate (not just the excess) is taxed. For larger estates, irrevocable trusts and other planning tools can significantly reduce this exposure.
Co-ops: Co-ops are shares of stock, not real property. Standard deeds don't work. Co-op boards have specific requirements for trust ownership. If you live in a Manhattan or Brooklyn co-op, make sure your estate planning attorney is familiar with co-op transfer issues.
The elective share: New York's EPTL gives a surviving spouse the right to take one-third of the "net estate" — the augmented estate including testamentary substitutes — regardless of what the will says. You can't completely disinherit a spouse through a will alone. Understanding this matters when structuring trusts that hold significant assets.
Real Example: Why Both Documents Matter
Carlos and Elena, a couple from Astoria, came to see me a few years ago. They owned their home as tenants in common (not joint tenants with survivorship), had two teenage children, and had significant savings. Their previous attorney had given them wills but no trust.
When Carlos died unexpectedly, Elena had to probate his estate. The house — half of which was in his name alone — went through Surrogate's Court in Queens. It took 14 months and cost the estate nearly $18,000 in fees. Their children had named each other as guardians, but that language was in the will — good. But the probate delay meant Elena couldn't easily sell the house or refinance during that period.
A revocable living trust, funded with the real estate, would have transferred Carlos's half to Elena privately within weeks of his death. The guardianship designation stayed in the will, exactly where it belongs.
At Morgan Legal Group, we design estate plans that use both documents together — each doing the job it's best suited for. For families with real estate, children, or any complexity at all, that means a pour-over will plus a funded revocable trust, backed up by a durable power of attorney and a healthcare proxy.
For a complete picture of the estate planning documents every New York family should have, including healthcare proxies and powers of attorney, see our guide on estate planning for seniors in New York.
