Articles

Estate planning in New York involves specific legal considerations that can significantly impact how your assets are distributed and how your wishes are carried out. Two of the most important tools in this process are wills and trusts. Understanding the differences—particularly how they operate under New York State law—can help you make informed and effective decisions.

What Is a Will in New York?

A Last Will and Testament in New York is a legal document that dictates how your property should be distributed after death. It must meet certain requirements to be legally valid in the state.

New York Requirements for a Valid Will

• The testator must be at least 18 years old.
• The will must be in writing.
• It must be signed by the testator (or by another person under the testator’s direction and in their presence).
• It must be witnessed by at least two people, who must sign it within 30 days of each other and in the presence of the testator.

Probate in New York

In New York, wills must be submitted to the local County Surrogate's Court probate if the decedent owned assets with no rights of survivorship or beneficiary designation.  This is a public legal process used to verify the will and supervise the distribution of the estate. Probate can be time-consuming and may take several months to over a year, depending on the complexity and whether there are any disputes.

Drawbacks of Probate in NY

• Court fees and legal costs
• Delays in accessing assets
• Public record, meaning your estate details are not private

What Is a Trust in New York?

A trust in New York is a legal entity that holds assets for beneficiaries. It can be revocable (modifiable during your lifetime) or irrevocable (permanent and often used for asset protection and Medicaid planning).

Types of Trusts Common in NY

• Revocable Living Trust: Avoids probate and offers flexibility during your lifetime.
• Irrevocable Trust: Often used in New York for Medicaid planning to protect assets from long-term care costs or to mitigate estate tax consequences.
• Testamentary Trust: Created within a will and activated upon death—still subject to probate.

Benefits Under NY Law

• Probate Avoidance: Assets in a trust do not go through Surrogate’s Court.
• Privacy: Trusts are not public documents in New York.
• Medicaid Planning: NY has a 60-month look-back period (2025) for Nursing Home Medicaid, and an irrevocable trust can help preserve assets if set up properly and in advance.
• Control: Allows detailed instructions for distribution, especially useful for blended families or beneficiaries with special needs.

Important Note on Funding

In New York, only assets retitled in the name of the trust are governed by the trust terms. Real estate deeds, bank accounts, and investments must be properly transferred—failure to fund the trust means those assets may still go through probate.

Key Differences in the Context of New York Law

Which One Is Better for New Yorkers?

A Will May Be Sufficient If:

• You have a small, simple estate.
• You're not concerned with probate or privacy.
• You need to name guardians for minor children.

A Trust May Be More Appropriate If:

• You want to avoid the often lengthy NY probate process.
• You own property in multiple states (to avoid multiple probates).
• You are planning for long-term care and want to preserve Medicaid eligibility.
• You value privacy and more control over how and when beneficiaries receive assets.

The Hybrid Approach: Will + Trust

In New York, many people choose a combination of both a will and a trust:

• A "pour-over will" ensures that any assets not placed in the trust during your lifetime are transferred to it after death.
• This approach captures the benefits of both documents and provides a safety net for unfunded assets.

Final Thoughts for New Yorkers

Estate planning in New York can be complex due to specific probate rules, tax considerations, and long-term care laws. Taking the time now to plan not only safeguards your assets but also spares your loved ones from unnecessary stress and expenses later on. Whether you use a will, a trust, or both, consulting with a New York estate planning attorney ensures your documents meet all state requirements and provide the maximum protection and efficiency.

If you would like to schedule a consultation to discuss creating or updating your estate planning, please contact our estate planning attorneys: Daniel S. Williford at 585-512-3511 or dwilliford@mccmlaw.com;  Spencer C. Malone at 585-512-3550 or smalone@mccmlaw.com; or Michael F. McConville at 585-512-3517 or mmconville@mccmlaw.com.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.