New York Trusts: The Questions Everyone Asks, Answered

Most New Yorkers come to us with the same handful of worries. Will my family be dragged through court? Can I protect my home from nursing-home costs? What happens to my child with special needs after I’m gone? Do I even need a trust, or is a will enough? This page answers those questions the way we’d answer them across a conference table — in plain language, grounded in New York law.

Trusts in New York are governed by the Estates, Powers and Trusts Law (EPTL), Article 7. The rules are the same whether you live in Manhattan, Brooklyn, Nassau or Suffolk County, Westchester, the Hudson Valley, or Upstate. What changes from family to family is which trust fits your goals. Below, we work through the concerns we hear most often.

“Do I actually need a trust, or will a will do the job?”

This is the first question almost everyone asks, so let’s settle it. A will is a public document that must be filed and proven (probated) in the Surrogate’s Court of the county where you lived. A trust generally avoids probate entirely and keeps your affairs private.

That single difference drives most planning decisions. If you want speed, privacy, and a smoother transition for your loved ones, a trust does work a will cannot. If your estate is modest and uncomplicated, a well-drafted will may be sufficient. Many New Yorkers use both: a revocable trust as the centerpiece, plus a “pour-over” will as a backstop. We compare the two in depth on our trust vs. will page.

Feature	Will	Trust
Goes through probate?	Yes — Surrogate’s Court	No (for funded trusts)
Public or private?	Public record	Private
Manages incapacity?	No	Yes (revocable trust)
Takes effect	At death	While living (revocable)
Governing law	EPTL / SCPA	EPTL Article 7

“What’s the difference between a revocable and an irrevocable trust?”

This is the fork in the road for most planning. The two trusts solve very different problems.

The revocable living trust — control and probate avoidance

With a revocable living trust, you (the grantor) keep full control. You can amend it, restate it, or revoke it entirely at any time while you have capacity. Its primary benefits are three:

• Avoiding probate — assets titled in the trust pass to your beneficiaries without Surrogate’s Court.
• Privacy — unlike a probated will, the trust is not a public filing.
• Incapacity management — if you become unable to manage your affairs, your named successor trustee steps in without a court guardianship proceeding.

One honest caveat we always give: a revocable trust does not save estate tax. Because you keep control, the assets remain in your taxable estate. Anyone who tells you a revocable trust shrinks your estate-tax bill is mistaken. Learn more on our revocable living trust page.

The irrevocable trust — protection and tax planning

An irrevocable trust generally cannot be amended or revoked once established. You give up control — and that’s precisely the point. By removing assets from your estate, an irrevocable trust can:

• Reduce estate tax, by moving appreciating assets out of your taxable estate.
• Protect assets from certain future creditors.
• Support Medicaid planning, helping qualify for long-term-care benefits — but only if the trust is funded before the five-year look-back period. Transfers within five years of applying for institutional Medicaid can trigger a penalty.

The five-year look-back is the single most important reason not to wait. Planning done early is planning that works. See our irrevocable trust page for details.

“I have a child with special needs — how do I provide for them without ruining their benefits?”

This is one of the most emotionally charged questions families bring us, and the answer is reassuring. A Supplemental (Special) Needs Trust (SNT), authorized under EPTL § 7-1.12, lets you set aside funds for a disabled loved one without disqualifying them from means-tested public benefits such as Medicaid and SSI.

The key is that the trust supplements — rather than replaces — government benefits. It can pay for things those programs don’t cover: therapies, education, travel, a caregiver, technology, and quality-of-life expenses. Because the beneficiary never controls the principal, the assets generally don’t count against benefit eligibility. For families, this means peace of mind that a well-meaning inheritance won’t accidentally cut off the care a loved one depends on. Our special needs trust page walks through how these are structured.

“Who runs the trust, and can I trust them to do it right?”

The person or institution who manages the trust is the trustee, and New York holds trustees to strict standards. A trustee is a fiduciary, which means they must put the beneficiaries’ interests first. Their core duties include:

• The prudent-investor standard (EPTL Article 11-A) — investing trust assets with reasonable care, skill, and diversification, as a prudent investor would.
• The duty of loyalty — acting solely in the beneficiaries’ interest, never self-dealing.
• The duty to account — keeping clear records and providing accountings to beneficiaries.

Trustees are entitled to compensation, and New York’s SCPA and EPTL set out statutory commission schedules that govern what a trustee may charge. (We won’t quote a specific figure here — the correct number depends on the trust and the assets, and a good attorney will walk you through it.) The mechanics of doing the job correctly — funding, recordkeeping, distributions, and accountings — are covered on our trust administration page.

“How much can I leave before New York taxes my estate in 2026?”

This question deserves careful attention because New York’s estate tax has a notorious trap. For 2026:

• The basic exclusion amount is $7,350,000. Estates at or below this generally owe no New York estate tax.
• New York imposes a “cliff” at 105% of the exclusion — $7,717,500. This is the part people miss: if your taxable estate exceeds the cliff, you lose the entire exemption and the whole estate is taxed, not just the excess.

That cliff is exactly why proactive planning matters for larger estates. An irrevocable trust, lifetime gifting, and other strategies can help keep an estate under the threshold. Falling just over the cliff can cost a family hundreds of thousands of dollars that careful planning would have avoided.

Frequently Asked Questions

Does a revocable living trust lower my estate taxes?

No. Because you keep the power to amend or revoke it, the assets in a revocable trust remain part of your taxable estate. Its real value is avoiding probate, preserving privacy, and managing incapacity — not tax savings. For estate-tax reduction, an irrevocable trust is the tool to discuss.

What is the five-year look-back, and why does it matter for Medicaid?

When you apply for institutional (nursing-home) Medicaid in New York, the program reviews asset transfers made in the prior five years. Transfers into an irrevocable trust during that window can create a penalty period of ineligibility. Funding the trust well in advance is how families protect assets and still qualify.

Will a trust keep my affairs out of the Surrogate’s Court?

A properly funded trust avoids probate, so the assets it holds pass without Surrogate’s Court and without becoming public record. A will, by contrast, must be probated in the Surrogate’s Court of your county. Many plans pair a trust with a pour-over will to catch anything left outside the trust.

Can a special needs trust really protect my disabled child’s benefits?

Yes. A Supplemental Needs Trust under EPTL § 7-1.12 is designed to hold funds for a disabled beneficiary without disqualifying them from Medicaid or SSI, because the trust supplements rather than replaces those benefits. It must be drafted correctly to achieve that protection.

How are trustee fees set in New York?

New York’s SCPA and EPTL contain statutory commission schedules that govern trustee compensation. The exact amount depends on the type of trust and the assets involved, so the schedule should be reviewed with your attorney rather than assumed.

Talk to a New York Trusts Attorney

Every family’s situation is different, and the wrong trust can be worse than no trust at all. Attorney Russel Morgan, Esq. and the team at Morgan Legal Group help individuals and families across New York — from New York City to Long Island, Westchester, the Hudson Valley, and Upstate — choose and build the right plan.

Schedule your consultation to get your questions answered and your plan started.

This article is general information about New York law, not legal advice for your specific situation. For authoritative text, see the EPTL on the New York State Senate site and current rates at tax.ny.gov.