Trust vs. Will: Which Do You Need?

Sitting across the kitchen table in Park Slope or Bensonhurst, the question we hear most is some version of: “Do I need a trust, or is a will enough?” Here are the worries Brooklyn families actually voice, answered under New York law.

“What does a will actually do for my family?”

A will is a written instruction that takes effect only after you die. In New York, a valid will must meet the formalities of EPTL §3-2.1 — signed by you at the end and witnessed by two people who sign within 30 days. A will lets you name guardians for minor children and decide who receives your brownstone, your savings, and your personal belongings. What surprises many people: a will does not avoid probate. It is the document the Surrogate’s Court reviews during probate.

“If I don’t have either, what happens?”

Then New York’s intestacy rules (EPTL Article 4) decide for you. The law sets fixed shares — for example, a surviving spouse and children split the estate by formula — regardless of what you would have wanted. For a blended Brooklyn family, or an unmarried partner, intestacy often produces a result no one intended.

“How is a trust different?”

A trust (governed by EPTL Article 7) is a legal arrangement where a trustee holds assets for your beneficiaries. A revocable living trust can be changed or canceled anytime while you are alive and competent. Its main advantage in Brooklyn is avoiding probate: assets properly titled in the trust pass to your beneficiaries without a Surrogate’s Court proceeding. Importantly, a revocable trust offers no estate-tax savings and no Medicaid protection — those assets are still counted as yours.

“So when would I want an irrevocable trust?”

An irrevocable trust generally cannot be changed once created, and in exchange it can remove assets from your taxable estate or protect them for Medicaid long-term-care planning. New York Medicaid applies a five-year look-back to transfers into such trusts, so timing matters. Families with a special-needs child often use a Supplemental Needs Trust under EPTL §7-1.12, which preserves eligibility for public benefits while still providing for the loved one.

“Does owning a co-op or condo change the answer?”

It can. Many Brooklyn residents hold their largest asset as a co-op share or condo unit. Co-op boards have their own transfer and approval rules, and a trust can sometimes make succession smoother — but boards must consent, so this is worth confirming before you assume a trust solves everything.

“Do most people need both?”

Often, yes. Even with a trust, a “pour-over” will catches anything you forgot to retitle and names guardians for children. The right mix depends on your assets, your family structure, and whether avoiding probate or protecting assets is your priority.

A note before you decide

Trust-versus-will is not one-size-fits-all, and New York’s formalities are strict — a small mistake can invalidate a document. Before you choose, speak with a New York estate planning attorney who can review your Brooklyn assets and goals and recommend the structure that genuinely fits your family.