For most New Yorkers, the honest answer is: you likely need a will at minimum, and you may benefit from a trust depending on your goals — but the smartest plans use both together, coordinated with a power of attorney and a health care proxy. A will alone is enough for many simple estates, while a trust becomes valuable when you want to avoid probate, plan for Medicaid, protect assets, or provide for a loved one with special needs. This is a beginner’s (a “101”) guide to understanding the difference, defining each term simply, and walking through how to decide what fits your life.
Let’s start from the ground up.
Estate Planning 101: What These Documents Actually Do
A complete New York estate plan is rarely a single document. It is a coordinated set of tools, each handling a different job:
- A will says who gets your property after you die and who is in charge of carrying it out.
- A trust holds and manages property — sometimes during your life, sometimes after your death — and can sidestep the court process.
- A durable power of attorney lets someone manage your finances if you become unable to.
- A health care proxy lets someone make your medical decisions if you cannot speak for yourself.
Think of these as four separate jobs. A will and a trust deal with your property. The power of attorney and proxy deal with you while you’re still alive. You can learn more about how they fit together on our estate planning overview page.
What Is a Will in New York?
A will (sometimes called a “last will and testament”) is a legal document directing where your assets go after death and naming an executor to handle the process. In New York, a valid will under EPTL §3-2.1 requires:
- The testator (the person making the will) signs at the end of the document;
- Two attesting witnesses; and
- Publication — the testator declaring to the witnesses that the document is their will.
If you die without a will — called dying intestate — New York’s intestacy statute (EPTL Article 4) decides who inherits, in a fixed order of relatives. That may not match your wishes, especially for unmarried partners, stepchildren, or charities, who receive nothing under intestacy.
The key limitation of a will: it generally must pass through probate, the court-supervised process of validating the will and transferring assets. Probate is public, can take months, and involves court oversight. To understand the mechanics, see our dedicated wills page.
What Is a Trust in New York?
A trust is a legal arrangement where one person (the trustee) holds and manages property for the benefit of others (the beneficiaries). New York trusts are governed by EPTL Article 7. The two beginner categories to know:
Revocable Living Trust
A revocable living trust is created during your life and can be changed or canceled by you at any time. Its headline benefit is that assets titled in the trust avoid probate — they pass privately and directly to your beneficiaries without court involvement. Important caveat: a revocable trust offers no estate-tax savings and no asset protection, because you still control the assets and the law treats them as yours.
Irrevocable Trust
An irrevocable trust generally cannot be changed once created. Because you give up control, it can be used for tax reduction, asset protection, and Medicaid planning. For Medicaid eligibility, New York applies a 5-year look-back period, so timing matters greatly — transfers made too close to needing care can trigger penalties. A special category, the Supplemental (Special) Needs Trust under EPTL §7-1.12, lets you provide for a disabled beneficiary without disqualifying them from means-tested government benefits.
Explore the options further on our trusts page.
Will vs. Trust: A Side-by-Side Comparison
| Feature | Will | Revocable Living Trust | Irrevocable Trust |
|---|---|---|---|
| Avoids probate | No | Yes | Yes |
| Takes effect | At death | During life and after | During life and after |
| Can you change it | Yes, anytime | Yes, anytime | Generally no |
| Estate-tax reduction | No | No | Yes |
| Asset protection | No | No | Yes |
| Medicaid planning | No | No | Yes (mind the 5-year look-back) |
| Privacy | Public (probate) | Private | Private |
| Names a guardian for minor kids | Yes | No | No |
Notice that a will does something a trust cannot: it is where you name a guardian for minor children. That is one reason nearly everyone with kids needs a will even if they also have a trust.
So — Will, Trust, or Both?
Here is a simple way to think about it:
- You may need only a will if your estate is straightforward, your assets are modest, you don’t mind probate, and you mainly want to direct who inherits and name a guardian.
- You likely want a trust too if you want to avoid probate, keep matters private, plan for Medicaid or long-term care, reduce estate tax, or protect a beneficiary with special needs.
- Most well-built plans use both — a “pour-over” will works alongside a trust, the will catching anything not already placed in the trust.
And remember the other two documents. Without a durable power of attorney under GOL §5-1513 (durable by default; New York uses the 2021 statutory short form), no one can manage your finances if you’re incapacitated. Without a health care proxy under NY Public Health Law Article 29-C, no one is clearly authorized to make your medical decisions. Learn more on our power of attorney page.
A Word on New York Estate Tax
For 2026, New York’s estate-tax basic exclusion is $7,350,000 for deaths on or after January 1, 2026 through December 31, 2026. New York has a notorious “cliff.” Once an estate exceeds 105% of the exclusion — $7,717,500 — it loses the entire exemption and is taxed from the first dollar, at progressive rates from 3% to 16%. New York has no gift tax, but gifts made within 3 years of death are added back into the taxable estate. If your estate is near these numbers, an irrevocable trust and careful gifting strategy can matter enormously — far more reason to consider a trust, not just a will.
Frequently Asked Questions
Is a trust better than a will?
Neither is universally “better” — they do different jobs. A will directs inheritance and names guardians; a trust can avoid probate and enable tax and Medicaid planning. The right answer depends on your assets, family, and goals, which is why many New Yorkers use both.
Can I avoid probate with just a will?
No. A will is the document probated by the court. To avoid probate, assets generally need to pass through a trust, beneficiary designations, or joint ownership.
Does a revocable trust save estate taxes?
No. A revocable living trust avoids probate but provides no estate-tax savings, because you retain control of the assets. Tax reduction typically requires an irrevocable trust (EPTL Article 7).
If I have a trust, do I still need a power of attorney and health care proxy?
Yes. A trust only governs assets you place in it. A durable power of attorney (GOL §5-1513) covers your other finances, and a health care proxy (Public Health Law Article 29-C) covers medical decisions — neither is replaced by a trust.
Talk to a New York Estate Planning Attorney
Choosing between a will, a trust, or both is easier with guidance tailored to your family and assets. 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 — that work together.
Schedule your 30-minute consultation with Russel Morgan, Esq.
For a broader picture, visit our New York statewide estate planning guide.
Further reading from Morgan Legal Group: how trusts fit an estate plan.