1. When Should You Use a Will, Trust, or Both?
A will and a living trust serve different purposes. A will directs the distribution of probate property and can nominate guardians for minor children. A trust allows a successor trustee to manage and distribute assets held in the trust without obtaining probate authority for those assets.
Comparing Estate Planning Documents
New York Estates, Powers and Trusts Law (EPTL) § 3-2.1 generally requires a written will signed by the testator, or by another person under the statutory conditions, and properly witnessed by at least two people.
Under EPTL § 7-1.17, a lifetime trust must meet separate written execution requirements, including the applicable acknowledgment or witnessing formalities and trustee signature requirements.
| Planning Tool | Primary Function | Probate Treatment |
|---|---|---|
| Will | Directs probate asset distribution and names an executor | Generally requires probate |
| Revocable living trust | Holds and distributes transferred assets | Properly funded assets generally avoid probate |
| Beneficiary designation | Names recipients of specified accounts or benefits | Generally avoids probate |
| Joint ownership with survivorship | Transfers the deceased owner's interest to the survivor | Generally avoids probate |
Will
- Primary FunctionDirects probate asset distribution and names an executor
- Probate TreatmentGenerally requires probate
Revocable living trust
- Primary FunctionHolds and distributes transferred assets
- Probate TreatmentProperly funded assets generally avoid probate
Beneficiary designation
- Primary FunctionNames recipients of specified accounts or benefits
- Probate TreatmentGenerally avoids probate
Joint ownership with survivorship
- Primary FunctionTransfers the deceased owner's interest to the survivor
- Probate TreatmentGenerally avoids probate
Many people use a living trust alongside a pour-over will. The will directs remaining probate assets into the trust, although those assets may still pass through probate first.
An effective testamentary succession plan should account for assets that the will cannot independently control.
2. How Will Your Home and Financial Accounts Transfer?
Property ownership determines which assets pass through an estate and which transfer directly to another person. Before choosing a trust, examine deeds and account agreements rather than relying solely on the instructions in a will.
Real Estate Ownership and Trust Funding
A solely owned home may pass under a will or intestacy law, with court proceedings depending on the estate's circumstances.
Joint tenancy with right of survivorship and tenancy by the entirety generally allow a surviving co-owner to receive the deceased owner's interest. Tenancy in common does not provide automatic survivorship.
Placing real estate in a living trust requires a legally effective transfer of title. Signing a trust agreement alone ordinarily does not transfer ownership of a separately titled home.
A real estate law review can address deed language, recording requirements, mortgage provisions, and possible tax consequences before a transfer.
Accounts and Benefits Outside Probate
Retirement accounts, life insurance proceeds, and payable-on-death accounts generally pass to validly designated beneficiaries.
Check contingent beneficiaries as well. If the primary beneficiary dies first, the account agreement and applicable law determine the next recipient. In some cases, proceeds may become payable to the estate.
These transfers can also affect estate tax calculations, creditor claims, or a surviving spouse's elective share, even when probate is unnecessary.
3. What Should You Review before Signing an Estate Plan?
An estate plan should reflect current ownership records, family relationships, and financial obligations. Marriage, divorce, a home purchase, or a change in beneficiaries may require adjustments to existing documents.
Document Execution and Incapacity Planning
Compare the will, trust agreement, deeds, and account beneficiary records. Confirm that assets intended for the trust have actually been transferred and that the named executor and successor trustee remain suitable.
A durable power of attorney permits an authorized agent to handle financial matters during the principal's lifetime, subject to its terms and applicable law. A health care proxy addresses medical decision-making when the principal lacks the capacity to decide.
Neither document replaces a will or gives an agent continuing authority after the principal dies.
Families facing capacity concerns may also need elder law and guardianship planning.
New York and Federal Estate Tax Considerations
Avoiding probate does not necessarily reduce estate taxes. Revocable trust assets generally remain part of the grantor's taxable estate.
For deaths occurring in 2026:
- New York's basic estate tax exclusion is $7,350,000.
- The federal basic estate and gift tax exclusion is $15 million.
New York generally requires an estate tax return when the federal gross estate plus specified includible gifts exceeds the state exclusion. Its estate tax credit phases out above the exclusion and is unavailable once the taxable estate reaches 105% of that amount.
Federal rules separately address taxable gifts, deductions, and portability elections between eligible spouses. New York does not follow the federal portability system in the same way.
Estate tax planning should therefore examine both systems, particularly when lifetime gifts or substantial nonprobate assets are involved.
4. Which Court Handles Probate on Long Island?
Creating a will or living trust ordinarily does not require advance court approval. After death, Surrogate's Court may need to probate a will, appoint a personal representative, or resolve an inheritance dispute.
Nassau and Suffolk County Probate Proceedings
For Long Island residents, probate generally takes place in the Surrogate's Court of the county where the deceased was domiciled. Nassau and Suffolk counties have separate courts. Under the Surrogate's Court Procedure Act (SCPA), probate typically requires the original will, a death certificate, and supporting documents.
Without a valid will, an eligible petitioner may seek letters of administration. Qualifying small estates may use voluntary administration, while disputes over a will's validity or inheritance rights may require additional court proceedings. An inheritance recovery review can address contested transfers and beneficiary rights.
22 Oct, 2026
