Living Trust Attorneys in New York
A living trust, which New York law calls a lifetime trust, is a written agreement under which you transfer your assets to a trustee, usually yourself, to be managed for your benefit during life and distributed to the people you choose at death. Its main job in a New York estate plan is to help keep your estate out of the Surrogate’s Court probate process and to provide for management of your affairs if you become incapacitated. It does not, on its own, reduce New York estate tax or shield assets from your creditors, and it only works for assets that have actually been transferred into it.
Milvidskiy Law Group P.C. prepares revocable and irrevocable living trusts for clients throughout New York State from our Tarrytown office and by video and phone. We help New York clients coordinate an estate plan with property and family interests in other states. When another state’s law or local work is involved, we identify the additional legal assistance needed. This page explains how living trusts work under New York’s Estates, Powers and Trusts Law, who benefits from one, and what a New York trust cannot do.
Key Takeaways:
- A properly funded revocable living trust generally passes assets at death without a Surrogate’s Court probate proceeding and provides a successor trustee to act during incapacity.
- New York requires a lifetime trust to be signed and either notarized like a deed or witnessed by two people, and a trust is irrevocable unless the document says it is revocable.
- A revocable trust does not avoid New York estate tax, does not protect assets from your own creditors, and does not defeat a spouse’s right of election.
- Assets never transferred into the trust are not covered by it; funding is what makes the trust work.
How a New York Living Trust Works
You, as the creator (sometimes called the grantor or settlor), sign a trust agreement and name a trustee. In a revocable trust you typically serve as the initial trustee, so nothing changes in how you manage your accounts or your home day to day. The agreement names a successor trustee who takes over if you become incapacitated or die, and it states who receives the trust property and on what terms. Because the trustee already holds title, there is no need for a court to appoint anyone or to admit a will to probate for the trust assets.
New York sets specific rules for creating a lifetime trust. The trust must be in writing, and it must be signed by the creator and, unless the creator is the sole trustee, by at least one trustee. The signatures must be either acknowledged before a notary in the manner required to record a deed or made in the presence of two witnesses who also sign. Amendments and revocations must follow the same formalities. Unlike some states, New York presumes a lifetime trust is irrevocable unless the document expressly states that it is revocable, so the drafting must be precise.
Funding the Trust
Under New York law a lifetime trust is valid only as to assets that have actually been transferred to it. A recital in the trust agreement listing your assets is not enough. Real estate must be conveyed to the trustee by a recorded deed. Bank and brokerage accounts must be retitled in the name of the trustee. Where you are the sole trustee, a written assignment describing the asset can complete the transfer of some property. Retirement accounts are generally not retitled; instead, beneficiary designations are coordinated with the trust. Life insurance is often left payable to the trust so that proceeds are managed for a surviving spouse or children.
Funding is the step where living trust plans commonly fall short. Assets left outside the trust at death still require probate, which is why a New York living trust plan should include a pour-over will. New York law permits a will to direct assets to a lifetime trust signed before or at the same time as the will, and later amendments to the trust are honored. The pour-over will is a safety net, not a substitute for funding. Our Trust Funding Services page explains how we handle this step.
Avoiding Surrogate’s Court Probate
Probate in New York is the Surrogate’s Court process of proving a will, appointing the executor, notifying the heirs who would take under intestacy, and supervising distribution. The will and the court file are public. Distributees who are not named in the will must receive formal notice and may object. If the decedent owned real estate in another state, that state usually requires its own proceeding as well. Assets held in a funded living trust generally pass outside this process: the successor trustee gathers the assets, pays debts and taxes, and distributes according to the trust terms without waiting for a court to act. Timing depends on the assets and the facts, and we will give you a realistic estimate.
A living trust is especially useful for New Yorkers who own real estate in more than one state, who want privacy, who have a distributee who is difficult to locate or likely to object, or who want a seamless plan for incapacity. It is less compelling for a person whose assets consist mainly of retirement accounts and jointly held property, which generally pass outside probate under beneficiary designations or survivorship, or for very small estates that qualify for New York’s voluntary administration procedure for personal property of $50,000 or less under current law.
What a Revocable Trust Does Not Do in New York
It does not reduce New York estate tax
Assets in a revocable trust remain part of your taxable estate for both federal and New York purposes. For deaths in 2026 the New York basic exclusion amount is $7,350,000, and an estate that exceeds 105 percent of that amount loses the exclusion entirely under New York’s cliff. Tax savings come from how the trust is drafted, for example by including a credit shelter trust for a surviving spouse or by pairing the revocable trust with lifetime gifts or an irrevocable trust, not from the revocable trust itself.
It does not protect assets from your creditors
New York law provides that a trust created for the creator’s own benefit is void as against the creator’s existing and later creditors. A revocable trust you can amend and use at will therefore offers no protection against your own creditors, lawsuits, or long-term care costs. Protection for the creator requires an irrevocable trust with limited retained rights, such as a Medicaid asset protection trust. A revocable trust can, however, include spendthrift provisions that can help protect beneficiaries after your death from their own creditors and, in many cases, divorce claims.
It does not defeat a spouse’s elective share
A surviving spouse in New York may elect to take the greater of $50,000 or one third of the net estate, and assets in a revocable trust count as testamentary substitutes in that calculation. Couples in second marriages who want a different result typically sign a prenuptial or postnuptial agreement with a waiver.
Revocable and Irrevocable Trusts Compared
A revocable living trust keeps you in control: you can amend it, revoke it, add or remove assets, and change beneficiaries, and you continue to report its income on your own return. An irrevocable living trust gives up some of that control in exchange for benefits a revocable trust cannot deliver, such as removing assets from the New York taxable estate, placing the home generally beyond Medicaid recovery if the trust is properly drafted and funded, or holding life insurance outside the estate. Many New York plans use both: a revocable trust as the core probate-avoidance and incapacity document, and an irrevocable trust for a specific tax or protection goal. See Medicaid Asset Protection Trust and Medicaid Planning in New York.
The Companion Documents
A living trust only covers trust property and only addresses financial matters. A New York trust plan should also include a pour-over will, a New York statutory short form power of attorney that expressly authorizes the agent to transfer assets to the trust, a health care proxy, a living will, and a HIPAA authorization. Parents of minor children need the will to nominate a guardian, which a trust cannot do. Our Estate Planning in New York page describes how these pieces fit together.
Working With Our Attorneys
We start by learning what you own, how it is titled, where it is located, and what you want to happen on incapacity and at death. We then advise whether a living trust adds enough value over a will-based plan to justify the setup, and if so whether it should be revocable, irrevocable, or both. We draft the trust to New York’s execution standards, supervise the signing, prepare and record deeds, and give you a written funding plan for accounts and beneficiary designations. After signing, we remain available to help successor trustees administer the trust when the time comes.
We serve clients throughout New York State from our Tarrytown office in Westchester County, and by video conference and phone. To discuss whether a living trust belongs in your plan, please contact us to schedule a consultation with a New York trust attorney.
This page is provided for general informational purposes only and does not constitute legal advice. Laws change and figures are adjusted periodically. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
How is a living trust signed in New York?
New York requires a lifetime trust to be in writing and signed by the creator and, unless the creator is the sole trustee, by at least one trustee. The signatures must either be acknowledged before a notary in the same way a deed is acknowledged for recording, or be made in the presence of two witnesses who also sign. Amendments and revocations must meet the same standard.
Is a New York living trust revocable by default?
No. New York law treats a lifetime trust as irrevocable unless the trust document expressly says it is revocable. A trust intended to be changed later must say so clearly. This is one reason trusts drafted from out-of-state forms or online templates should be reviewed by a New York attorney before they are signed.
Does a revocable trust avoid the New York estate tax?
No. Assets in a revocable trust are included in your taxable estate for New York and federal purposes. For deaths in 2026 the New York exclusion is $7,350,000, and estates that exceed it by more than 5 percent lose the exclusion entirely. A trust can hold tax-saving provisions, such as a credit shelter trust for a spouse, but the revocable trust itself does not reduce the tax.
Does a living trust protect my assets from creditors or nursing home costs?
A revocable trust does not. New York law treats a trust you create for your own benefit as reachable by your existing and future creditors, and Medicaid generally counts revocable trust assets as yours. Protection requires an irrevocable trust, such as a Medicaid asset protection trust, in which you give up the right to the principal.
What happens to assets I forget to put into the trust?
They pass under your will, which for a trust plan is a pour-over will directing them into the trust. New York law honors a will that pours assets into a lifetime trust signed before or at the same time as the will. Those assets still go through the Surrogate’s Court, so the pour-over will is a safety net and not a replacement for retitling assets during life.
Do I have to transfer my New York home into the trust by deed?
Yes. Real estate becomes trust property only when a deed to the trustee is signed, acknowledged, and recorded with the recording office for the county where the property is located. New York law does not accept a mere listing of the property in the trust document as a transfer. We prepare and record the deed and the related transfer tax filings as part of the trust plan.
Will I lose my STAR school tax benefit if my home is in a trust?
No. The New York State Department of Taxation and Finance treats a trust beneficiary who conveyed the home to the trustee and continues to live there as the homeowner for STAR purposes. Other local exemptions, such as senior or veterans exemptions, should be confirmed with your assessor after the deed is recorded.
Can a living trust replace a power of attorney in New York?
Not entirely. The successor trustee can manage only assets that are in the trust. Retirement accounts, tax matters, insurance claims, and dealings with government agencies are outside the trustee’s reach. A New York trust plan should include a statutory short form power of attorney that expressly authorizes the agent to transfer assets into the trust.
Can my spouse still claim an elective share against my trust?
Yes. New York gives a surviving spouse the right to elect the greater of $50,000 or one third of the net estate, and assets in a revocable trust are counted as testamentary substitutes in that calculation. A prenuptial or postnuptial agreement with a valid waiver is the way to plan around this in a second marriage.
How long does it take to settle a New York living trust after death?
There is no court proceeding for trust assets, so the successor trustee can begin collecting accounts and managing real estate as soon as the death certificate is available. Debts, final income tax returns, and, for estates above the exclusion amount, a New York estate tax return due nine months after death must still be handled. Timing depends on the assets and the facts, and we will give you a realistic estimate at the outset.
I have a trust from another state and moved to New York. Is it valid here?
A trust validly created in another state is generally recognized in New York, but it should be reviewed. New York’s signing rules, its presumption that a trust is irrevocable unless stated otherwise, its estate tax cliff, and its Medicaid rules may all affect how the trust operates. Deeds for New York property must also be prepared and recorded to bring that property into the trust.
