“Do I need a will or a trust?” is the question we hear most from New York City clients. The honest answer is that many people benefit from both, but the right mix depends on your assets and your goals. Here is a plain-English Q&A.
What is the basic difference?
A will is a document that takes effect only when you die and directs how your property is distributed; in New York it must meet the formalities of EPTL §3-2.1, signed and witnessed by two people. A revocable living trust, under EPTL Article 7, takes effect as soon as you fund it and continues operating during your life, your incapacity, and after death. A will speaks once; a trust works continuously.
Which one avoids probate?
The trust does, for assets you fund into it. A will, by contrast, is the document that goes through probate in the Surrogate’s Court of your borough under the SCPA. Probate in a busy county like New York or Kings can take months and becomes part of the public record. Assets held in a properly funded trust skip that process and pass privately. If avoiding Surrogate’s Court is your priority, the trust has the edge.
What happens if I have neither?
New York’s intestacy rules in EPTL Article 4 decide for you. Your assets pass to your closest relatives in a fixed order, which may not match your wishes, and the Surrogate’s Court appoints an administrator. For unmarried partners, stepchildren, or chosen family, intestacy can be especially harsh because the statute does not recognize them. Doing nothing is itself a choice, just not yours.
Is a will enough for me?
For many New Yorkers, yes. If your estate is modest, you have named beneficiaries on retirement and bank accounts, and you do not mind Surrogate’s Court handling the rest, a well-drafted will plus beneficiary designations can do the job. A will is also the only place to name a guardian for minor children, something a trust cannot do.
When does the trust win?
Consider a trust if you value privacy, own a co-op or condo you want passed without probate, own property in more than one state, or want a seamless plan if you become incapacitated. Manhattan co-op owners should know boards often have specific rules about trust ownership, so plan for board approval. The trust costs more up front but can save time and exposure later.
Does either one save on New York estate tax?
Neither a standard will nor a revocable trust reduces estate tax. New York’s 2026 exclusion is $7,350,000 with a cliff near $7,717,500, above which the exclusion can vanish. If your estate is in that range, tax planning means irrevocable strategies layered on top of your base documents, not the will or revocable trust alone.
So which do I need?
Most people need a will at minimum. Add a revocable trust when privacy, incapacity planning, real property, or out-of-state assets make it worthwhile, and pair it with a pour-over will. The two are partners, not rivals.
A note before you act
The right combination depends on the specifics of your assets and family. Before deciding, consult a licensed New York estate planning attorney who can match the documents to your life in the five boroughs.
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