Most people who call our office do not start by asking “Should I create a revocable trust under EPTL Article 7?” They start with worries they can put into plain words: Will my family have to go to court when I die? Can I protect my home if I need a nursing home? How do I keep my disabled child from losing benefits? Will New York tax my estate?
Trusts are the tool that answers nearly all of those worries — but only when they are chosen, drafted, and funded correctly. This page is built as a question-and-answer guide for New Yorkers, from New York City and Long Island to Westchester, the Hudson Valley, and Upstate. It reflects how attorney Russel Morgan, Esq. and the team at Morgan Legal Group actually talk through trusts with families across the state.
A trust is never a standalone fix. It works alongside a will, a durable power of attorney, and a health care proxy as part of a single, coordinated plan. For the full picture, start with our estate planning overview.
What Is a Trust, in Plain English?
A trust is a legal arrangement governed by EPTL Article 7 in which one person (the grantor) transfers assets to a trustee, who holds and manages them for the benefit of one or more beneficiaries under the rules the grantor writes into the trust document. Think of it as a private rulebook for your property — one that can take effect during your life and continue after your death, without a judge supervising every step.
The two questions that decide everything else are: Do you keep the right to change it? and Do you keep control of the assets? Those two answers separate a revocable trust from an irrevocable trust, and they drive the rest of this page.
Revocable vs. Irrevocable: The Question Behind Every Trust
This is the single most common point of confusion we untangle for clients. The two are not interchangeable, and choosing the wrong one defeats the goal.
| Feature | Revocable Living Trust | Irrevocable Trust |
|---|---|---|
| Can you change or cancel it? | Yes, anytime while competent | No (only in limited ways) |
| Avoids probate? | Yes — assets pass outside court | Yes |
| Saves NY estate tax? | No — assets stay in your taxable estate | Often yes — assets can be removed from your estate |
| Asset protection from creditors/nursing home? | No | Yes, when properly structured |
| Used for Medicaid planning? | No | Yes (subject to the 5-year look-back) |
| You keep full control of assets? | Yes | No — control is given up by design |
The trade-off is honest and unavoidable: a revocable trust gives you control but no protection; an irrevocable trust gives you protection but requires giving up control. There is no trust that does both. Anyone who promises otherwise is overselling.
“Will My Family Have to Go to Court?” — Trusts and Probate
Probate is the court process that proves a will is valid and authorizes the executor to distribute assets. In New York it runs through the Surrogate’s Court in the county where the person lived. It can be slow, public, and contentious — especially if a relative contests the will or an heir cannot be located.
A revocable living trust avoids probate entirely for the assets you place inside it. Because the trust — not your name alone — owns those assets, there is nothing for the court to “prove.” Your trustee simply follows the document. This is the number-one reason New Yorkers create revocable trusts.
Two cautions we repeat often:
- A revocable trust avoids probate, not estate tax. Those are different problems. Probate is a process concern; estate tax is a dollars concern. (More on tax below, and in our NY estate tax guide.)
- An unfunded trust does nothing. A trust only controls assets that are actually retitled into it. A signed-but-empty trust is one of the most common — and most expensive — mistakes we fix.
“Can I Protect My Home From a Nursing Home?” — Medicaid Planning
For many families, this is the real reason they call. Long-term care in New York can cost well over ten thousand dollars a month, and Medicaid is the program that pays for it — but only after you qualify.
The tool here is a properly drafted irrevocable trust, sometimes called a Medicaid Asset Protection Trust. By transferring your home or other assets into an irrevocable trust, you can remove them from what Medicaid counts as available — if you plan early enough.
The critical rule is the 5-year look-back: Medicaid reviews transfers made within the five years before a long-term-care application. Transfers into an irrevocable trust during that window can trigger a penalty period of ineligibility. This is why the honest advice is always the same — the best time to set up a Medicaid trust is years before you think you’ll need care. Waiting until a crisis sharply limits the options.
“How Do I Protect a Loved One With Disabilities?” — Supplemental Needs Trusts
If you have a child, sibling, or other loved one who receives needs-based government benefits such as Medicaid or SSI, leaving them money outright can be a disaster — an inheritance can disqualify them from the very benefits they depend on.
A Supplemental Needs Trust (SNT) under EPTL §7-1.12 solves this. Assets held in a properly drafted SNT are used to supplement — not replace — public benefits, paying for the extras that improve quality of life while preserving eligibility. For families with a disabled beneficiary, this is often the single most important provision in the entire estate plan.
“Will New York Tax My Estate?” — Trusts and the 2026 Estate Tax
New York has its own estate tax, separate from the federal one, and the numbers matter in 2026.
For deaths on or after January 1, 2026 through December 31, 2026, the New York basic exclusion amount is $7,350,000. Estates below that pay no New York estate tax.
But New York has a feature that traps the unwary — the “cliff.” If your taxable estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the entire exemption. The estate is taxed from the first dollar, not just the amount over the threshold. Rates are progressive, running from 3% up to 16%.
A few facts every New Yorker should know:
- New York has no gift tax. Lifetime gifts are not taxed by the state.
- But there is a 3-year add-back. Gifts made within three years of death are pulled back into the taxable estate. Deathbed gifting to dodge the tax generally does not work.
- A revocable trust does not reduce this tax; an irrevocable trust can, by moving appreciating assets out of your estate.
If your estate is anywhere near the cliff, planning is not optional — being a few hundred thousand dollars over the line can cost vastly more in tax than careful structuring would have cost in legal fees. See our NY estate tax guide for a deeper walkthrough.
How a Trust Fits With Your Will, POA, and Health Care Proxy
A trust is one piece of a four-part plan. A complete New York estate plan coordinates:
- A will (EPTL §3-2.1) — signed at the end before two attesting witnesses, with publication. Your will names guardians for minor children and serves as the backstop for anything not titled into your trust. Dying without one means intestacy under EPTL Article 4, where the state’s formula — not you — decides who inherits.
- One or more trusts (EPTL Article 7) — for probate avoidance, tax planning, asset protection, and special-needs care.
- A durable power of attorney (GOL §5-1513) — durable by default, using the 2021 New York statutory short form, so a trusted agent can manage finances if you become incapacitated.
- A health care proxy (Public Health Law Article 29-C) — appointing an agent for medical decisions. This is separate from the financial POA; you need both.
Coordinating these documents so they reinforce rather than contradict each other is the heart of good estate planning. Our statewide guide explains how we serve clients across every New York region.
Frequently Asked Questions
Do I need a trust if I already have a will?
Often, yes — they do different jobs. A will only takes effect after death and must pass through Surrogate’s Court probate. A revocable trust can avoid that court process for the assets inside it, and an irrevocable trust can add tax savings and asset protection a will cannot. Most New Yorkers benefit from a will and a trust working together.
Does a revocable living trust save estate taxes?
No. A revocable trust avoids probate and keeps your affairs private, but because you keep full control, the assets remain in your taxable estate. For New York estate-tax reduction — especially near the 2026 cliff of $7,717,500 — an irrevocable trust is the tool.
How long before I need care should I set up a Medicaid trust?
As early as possible. Medicaid applies a 5-year look-back to transfers into an irrevocable trust, so assets generally need to be in the trust for five years before a long-term-care application to be fully protected. Planning years ahead gives you the most options.
What happens if I create a trust but never fund it?
Nothing — and that is the danger. A trust only controls assets that are actually retitled into its name. An unfunded trust leaves those assets exposed to probate and defeats the purpose. Funding is as important as signing.
Can a trust protect a disabled family member’s government benefits?
Yes. A Supplemental Needs Trust under EPTL §7-1.12 holds assets to enhance a disabled beneficiary’s quality of life while preserving eligibility for needs-based benefits like Medicaid and SSI. It is essential whenever a beneficiary relies on those programs.
Talk With a New York Trust Attorney
Trusts reward planning and punish guesswork. The right trust, properly drafted and funded, can spare your family the courthouse, protect your home, shelter your estate from New York’s tax cliff, and safeguard a vulnerable loved one. The wrong one — or none at all — can do the opposite.
Attorney Russel Morgan, Esq. and Morgan Legal Group help families across New York State design plans that hold up. Schedule your consultation today.
This page is general information about New York law, not legal advice. Statutes and exclusion amounts change. Consult a qualified New York attorney about your specific situation.
Further reading from Morgan Legal Group: how trusts fit an estate plan.