Trust vs. Will: Which Do You Need?

The trust-versus-will question is the wrong question for most New Yorkers, because the honest answer is usually “both, in some combination.” The real task is matching the tool to your goal. Use this checklist to figure out what your situation calls for.

The one-line difference

A will takes effect only at death and directs your probate estate through Surrogate’s Court. A revocable living trust takes effect the moment it is funded and lets assets pass outside of probate. Both are governed by New York law, wills under EPTL 3-2.1 and trusts under EPTL Article 7.

Side-by-side on what matters

• Probate: A will goes through it; assets in a funded trust skip it.
• Privacy: A probated will becomes a public court record; a trust generally stays private.
• Incapacity: A will does nothing while you are alive; a trust lets a successor trustee step in if you cannot manage your affairs.
• Cost timing: A will is cheaper to create but adds court costs later; a trust costs more upfront but can reduce administration friction.
• Taxes: Neither a basic will nor a revocable trust saves estate tax. For that you need an irrevocable trust.
• Guardianship of children: Only a will can name a guardian for your minor children.

Choose a will if

• Your estate is straightforward and modest.
• You have minor children and need to name a guardian.
• Most of your assets already pass by beneficiary designation or joint ownership.
• You are comfortable with your family going through New York probate.

Lean toward a revocable trust if

• You own real estate in New York and another state and want to avoid a second probate.
• Privacy is a priority.
• You want a smooth plan for possible incapacity.
• You are willing to fund the trust by retitling your assets.

Consider an irrevocable trust if

Your concern is estate tax, with the New York 2026 exclusion at $7,350,000 and a cliff near $7,717,500, or long-term care planning under Medicaid’s five-year look-back, or providing for a loved one with disabilities through a special needs trust under EPTL 7-1.12. These goals require giving up control, which a will and a revocable trust do not ask of you.

Why it is rarely either-or

Even if you choose a trust, you still need a short “pour-over” will to catch anything left out, plus a durable power of attorney (GOL 5-1513) and a health care proxy (PHL Article 29-C) for decisions while you are alive. A will, by contrast, almost always stands alone with those same lifetime documents. The right plan is a coordinated set, not a single document.

A short note before you act

The best choice depends on your assets, your family, and your goals, and New York’s probate and tax rules add wrinkles a generic comparison cannot capture. Sit down with a New York estate planning attorney who can recommend the right mix and make sure every piece works together.