The short, solutions-oriented answer: most New Yorkers need a will, and many also benefit from a trust — but they solve different problems, and the right choice depends on the outcomes you want. A will directs who inherits and names a guardian for minor children, but it must pass through probate. A revocable living trust avoids probate and keeps your affairs private. An irrevocable trust solves more advanced problems — estate-tax exposure, asset protection, and Medicaid eligibility. So the real question isn’t “will or trust,” it’s “which combination actually fixes my problem?” Below, we match common New York problems to the tools that solve them.
The Problem-to-Solution Framework
Estate planning goes wrong when people buy a tool before they’ve named the problem. Start with the outcome you want, then pick the instrument.
| The Problem You Want to Solve | The Tool That Solves It |
|---|---|
| Decide who inherits; name a guardian for minor children | Will (EPTL §3-2.1) |
| Avoid probate; keep your estate private and faster to settle | Revocable living trust (EPTL Article 7) |
| Reduce New York estate tax; protect assets from creditors | Irrevocable trust |
| Qualify for Medicaid long-term care without losing your home | Irrevocable (income-only) trust + 5-year planning |
| Provide for a disabled loved one without ending their benefits | Supplemental Needs Trust (EPTL 7-1.12) |
| Manage your finances if you become incapacitated | Durable Power of Attorney (GOL §5-1513) |
| Authorize someone to make your medical decisions | Health Care Proxy (PHL Article 29-C) |
A complete New York plan usually isn’t one document. It’s a will + trust(s) + durable power of attorney + health care proxy, all coordinated so they don’t contradict one another.
Problem 1: “I just want to say who gets what.” — A Will May Be Enough
If your estate is modest, your wishes are straightforward, and probate delay isn’t a concern, a properly executed will can do the job. Under EPTL §3-2.1, a valid New York will requires:
- The testator signs at the end of the document;
- Two attesting witnesses;
- Publication — the testator declares to the witnesses that the document is their will.
A will also lets you name a guardian for minor children — something a trust alone cannot do. This is why nearly everyone needs a will, even if they also have a trust.
The catch: a will guarantees probate in New York. If you die without a will (intestate), the state’s default rules under EPTL Article 4 decide who inherits — often not the way you would have chosen. Learn more on our Wills page.
Problem 2: “I want to avoid probate and keep things private.” — Add a Revocable Living Trust
Probate is the court process that proves a will and authorizes the executor to act. It can be slow, public, and costly — and it gets more complicated if you own property in more than one state.
A revocable living trust (governed by EPTL Article 7) solves this. You transfer assets into the trust during your lifetime, keep full control as trustee, and name a successor trustee to take over at your death — without probate. The trust stays private; no court filing reveals your beneficiaries.
Be clear about what a revocable trust does and doesn’t do:
- ✅ Avoids probate and the delay that comes with it
- ✅ Keeps your estate plan private
- ✅ Makes incapacity management seamless (your successor trustee steps in)
- ❌ Does not reduce or eliminate New York estate tax
- ❌ Does not protect assets from creditors or Medicaid spend-down
Because a revocable trust offers no tax savings, it’s an administrative solution, not a tax solution. See our Trusts page for how it’s structured.
Problem 3: “My estate is large, or I need Medicaid or asset protection.” — Consider an Irrevocable Trust
When the problem is taxes, creditors, or long-term care, you need an irrevocable trust. By giving up control over the assets, you move them outside your taxable estate. Irrevocable trusts are the workhorses for:
- Estate-tax reduction — removing assets from your New York taxable estate;
- Asset protection — shielding assets from future creditors;
- Medicaid planning — an income-only irrevocable trust can protect your home and savings, subject to Medicaid’s 5-year look-back period;
- Special needs — a Supplemental Needs Trust (EPTL 7-1.12) lets a disabled beneficiary inherit without losing means-tested government benefits.
The trade-off is control: irrevocable means you generally cannot freely amend or revoke it. That’s a feature, not a bug — it’s exactly what moves the assets out of your estate.
The New York Estate-Tax Problem (and Its “Cliff”)
New York has its own estate tax, separate from the federal one — and it contains a trap many families don’t see coming.
For deaths on or after January 1, 2026, through December 31, 2026, the basic exclusion amount is $7,350,000. Estates above that are taxed on a progressive scale from 3% to 16%.
Here’s the danger: New York’s exclusion is a cliff, not a threshold. Once your estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the entire exemption, and the estate is taxed from the first dollar. An estate just over the cliff can owe hundreds of thousands of dollars more than one just under it.
A few more facts that drive planning:
- New York has no gift tax — but gifts made within 3 years of death are added back to the taxable estate.
- A revocable trust does not help here; only irrevocable strategies move assets out of the taxable estate.
If your estate is anywhere near the cliff, lifetime gifting and irrevocable trusts can mean the difference between a large tax bill and none. Our New York Estate Tax Guide walks through the numbers.
Don’t Forget the Two Documents That Protect You While You’re Alive
Wills and trusts handle what happens after death. Two more documents solve the problem of incapacity:
- Durable Power of Attorney (GOL §5-1513): New York’s 2021 statutory short form lets a trusted agent manage your financial affairs. It’s durable by default, meaning it stays effective if you become incapacitated. See Power of Attorney.
- Health Care Proxy (Public Health Law Article 29-C): appoints an agent to make your medical decisions if you can’t. It is distinct from the financial POA — you need both. See Healthcare Proxy.
Without these, your family may have to petition a court for guardianship — slow, public, and expensive. These two documents prevent that problem entirely.
So, Will or Trust? A Quick Decision Guide
- Modest estate, simple wishes, probate not a concern → A will (plus POA and health care proxy) may be enough.
- Want to avoid probate / keep things private / own multiple properties → Add a revocable living trust.
- Estate near or over $7.35M, or facing creditors → Add an irrevocable trust for tax and asset protection.
- Planning for nursing-home care → Start an irrevocable Medicaid trust now to clear the 5-year look-back.
- Providing for a disabled loved one → Use a Supplemental Needs Trust.
For the full picture, start with our Estate Planning Overview.
Frequently Asked Questions
Does a will avoid probate in New York?
No. A will must go through probate. If avoiding probate is your goal, a funded revocable living trust is the tool that does it.
Will a revocable living trust lower my New York estate tax?
No. A revocable trust offers no estate-tax savings because you retain control of the assets. Only irrevocable strategies move assets out of your taxable estate.
If I have a trust, do I still need a will?
Yes. You need a “pour-over” will to catch any assets not titled in the trust, and a will is the only document that can name a guardian for minor children.
What is the New York estate-tax cliff?
If your estate exceeds 105% of the exclusion ($7,717,500 in 2026), you lose the entire exemption and are taxed from the first dollar — making proactive planning critical for larger estates.
Talk to a New York Estate Planning Attorney
The will-versus-trust question almost always ends in “both, coordinated correctly.” The right plan depends on your assets, your family, and the problems you’re trying to solve. Russel Morgan, Esq. and the team at Morgan Legal Group build coordinated New York estate plans — wills, trusts, powers of attorney, and health care proxies — designed around your goals.
Schedule your 30-minute consultation with Russel Morgan, Esq. →
Further reading from Morgan Legal Group: the New York estate planning guide.