By Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539
Answer
For most New York families with straightforward estates, a well-drafted will with correct beneficiary designations does the job at lower cost. A trust earns its cost where there is a specific objective — avoiding probate, planning for incapacity, protecting assets, or providing for a beneficiary who cannot manage funds.
What each one actually does
A will says who receives your property, who administers your estate, and who is nominated as guardian for minor children. It takes effect at death and goes through probate in Surrogate’s Court.
A revocable living trust holds assets during your lifetime with you retaining full control, and passes them to your beneficiaries without probate. You can change or revoke it at any time.
What a trust is genuinely good for
Avoiding probate, which is the reason most people are sold one. Distribution is private, generally faster, and does not require a court proceeding.
Incapacity. If you can no longer manage the trust, your successor trustee steps in immediately without a court application. This is genuinely valuable and consistently undersold relative to the probate point.
Out-of-state real property. Real estate in another state would otherwise require a separate probate proceeding there. This alone can justify the structure.
Privacy. A probated will becomes a public record. A trust does not.
Staged distributions. Where a beneficiary should receive funds over time rather than at once.
What a revocable trust does not do
Worth being clear, because they are frequently oversold.
- No asset protection. You control the assets, so creditors can reach them.
- No Medicaid protection. Assets in a revocable trust are countable. Long-term care planning requires an irrevocable structure established outside the look-back.
- No income tax benefit. The trust uses your Social Security number.
- No estate tax saving by itself.
The failure that makes trusts useless
A trust only controls what is actually inside it.
Funding — retitling accounts, deeds and assets into the trust’s name — is the step people skip. An unfunded trust accomplishes nothing. The assets left outside go through probate exactly as they would have, and you have paid for a document that did not operate.
This is why a trust is always paired with a pour-over will to catch anything not transferred. The pour-over will is a backstop, not a substitute — assets it catches still go through probate.
Anyone selling you a trust without explaining the funding work is selling you a binder.
The step that matters regardless
Whichever you choose, check your beneficiary designations.
Retirement accounts, life insurance and payable-on-death accounts pass to whoever is named on the form, regardless of what your will or trust says. An ex-spouse still named on an ERISA-governed 401(k) may receive the benefit if the designation remains effective under the plan and applicable federal law. This undoes more estate plans than any other single thing, and fixing it costs nothing.
The honest answer
Ask what specific problem the trust solves for your situation. If there is a clear answer — property in two states, a beneficiary who needs protection, a real concern about incapacity — a trust is worth it. If there is not, a well-drafted will probably serves you better.
Read more: Wills · Revocable Trusts · Estate Planning