Wills & Trusts in New York: The Questions New Yorkers Ask Most (2026)

If you have started thinking about a will or a trust, you almost certainly have questions — and probably a few worries. Will my family have to go through probate? Can a trust really protect my home from a nursing home? Does setting up a trust mean I lose control of my own money? These are the exact concerns we hear every week at Morgan Legal Group, and they deserve clear, accurate answers grounded in New York law — not generic advice copied from somewhere else.

This page is built around those real questions. Attorney Russel Morgan, Esq. and our team serve clients across all of New York State — from New York City and Long Island to Westchester, the Hudson Valley, and Upstate. Below, we answer the most common questions about wills and trusts, explain how New York’s Estates, Powers and Trusts Law (EPTL) actually works, and show you where to go deeper.

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“Do I need a will, a trust, or both?”

This is the first question almost everyone asks. The honest answer: most New York families benefit from both, but they do different jobs.

A will directs who receives your property after death, names guardians for minor children, and appoints your executor. The catch: a will must be probated in the Surrogate’s Court, which makes it a public proceeding that can take time and incur cost.

A trust holds assets during your lifetime and passes them to your beneficiaries outside of probate — privately and often faster. New York trusts are governed by EPTL Article 7.

Feature	Will	Trust
Avoids probate?	No — probated in Surrogate’s Court	Yes
Public or private?	Public record	Private
Manages incapacity?	No	Yes (successor trustee steps in)
Takes effect	At death	Immediately upon funding
Governing law	EPTL	EPTL Article 7

Want a side-by-side breakdown? See our Trust vs. Will page.

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

This is where most of the confusion lives, so let’s be precise.

A revocable living trust keeps you in control. You can amend it or revoke it entirely at any time during your life. Its primary benefits are avoiding probate, privacy, and seamless management if you become incapacitated. Important caveat New Yorkers often misunderstand: a revocable trust does not save estate tax — because you retain control, the assets remain part of your taxable estate. Learn more on our Revocable Living Trust page.

An irrevocable trust generally cannot be amended once created. In exchange for giving up that control, you gain powerful tools: estate-tax reduction, asset protection, and Medicaid planning. Be aware that transfers into an irrevocable trust for Medicaid purposes are subject to the 5-year look-back period. See our Irrevocable Trust page for details.

“Can a trust protect my home if I need Medicaid?”

Yes — but timing is everything. A properly drafted irrevocable trust can shelter your home and other assets so they are not counted for Medicaid long-term-care eligibility. The critical rule: New York applies a 5-year look-back, meaning transfers into the trust must generally be completed five years before you apply for institutional Medicaid. This is why planning early matters so much.

“I have a child with special needs — how do I provide for them?”

A standard inheritance can accidentally disqualify a disabled loved one from means-tested benefits like Medicaid and SSI. The solution is a Supplemental (Special) Needs Trust (SNT), authorized under EPTL 7-1.12. An SNT holds funds for the benefit of a disabled beneficiary without disqualifying them from those essential public benefits, paying for supplemental needs that improve quality of life. Our Special Needs Trust page explains how these are structured.

“What does my trustee actually have to do?”

A trustee is a fiduciary — held to the highest standard New York law recognizes. Under the EPTL, a trustee owes:

• The prudent-investor standard — managing trust investments with care and skill (EPTL Article 11-A).
• The duty of loyalty — acting solely in the beneficiaries’ interest, never for personal gain.
• The duty to account — providing beneficiaries with a clear accounting of trust activity.

Choosing the right trustee, and understanding these obligations, is central to whether a trust succeeds. Our Trust Administration page walks trustees through their responsibilities. New York’s SCPA and EPTL also set out commission schedules that govern trustee compensation.

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

For 2026, New York’s basic exclusion amount is $7,350,000. But New York has a feature that surprises many families — the “cliff.” If your taxable estate exceeds 105% of the exclusion — $7,717,500 — you lose the entire exemption, and the whole estate becomes taxable, not just the amount above the threshold.

2026 New York Estate Tax	Amount
Basic exclusion amount	$7,350,000
Cliff threshold (105%)	$7,717,500
Estates over the cliff	Lose the ENTIRE exemption

Planning just below the cliff — often using irrevocable trusts and lifetime gifting — can save your family enormous sums. This is precisely the kind of strategy we tailor to each client.

For an overview of all your options, start with our Trusts Overview.

Frequently Asked Questions

Q: Does a revocable living trust lower my estate tax?
A: No. Because you keep full control and the right to revoke, the assets remain in your taxable estate. A revocable trust’s value is avoiding probate, ensuring privacy, and managing incapacity — not tax savings. Estate-tax reduction calls for an irrevocable trust.

Q: If I create an irrevocable trust, do I lose my money forever?
A: You give up control over the trust assets, which is what makes the protection work — but a skilled attorney can structure the trust so you retain certain rights (such as income or use of a home) while still achieving asset protection and Medicaid eligibility. Every plan is customized.

Q: How long does probate take in New York, and can I avoid it?
A: Probate in the Surrogate’s Court can take months and becomes part of the public record. A fully funded trust under EPTL Article 7 passes assets outside probate — privately and typically faster — which is the main reason many New Yorkers choose a trust.

Q: Does Morgan Legal Group serve my area?
A: Yes. We represent clients throughout New York State, including New York City, Long Island, Westchester, the Hudson Valley, and Upstate New York. Consultations are available by video and phone.

Q: When is the right time to start planning?
A: Sooner than most people think — especially for Medicaid, given the 5-year look-back. The earlier you plan, the more options you preserve for your family.

Get Answers Specific to Your Family

No web page can replace advice tailored to your assets, your family, and your goals. Attorney Russel Morgan, Esq. and Morgan Legal Group are ready to answer your questions and build a plan that fits New York law and your life.

Book your 30-minute consultation with Russel Morgan, Esq. →

This page is general information about New York law, not legal advice. Statutory references include the EPTL on the New York Senate website and the New York Department of Taxation and Finance.