In many years of practicing estate planning law in New York, the most common question I hear during initial consultations is this: “Do I need a Will or a Trust?”
The question assumes you have to choose one. It frames estate planning as a binary choice, like choosing between coffee or tea. But in the complex, high-stakes legal environment of New York in 2026, this framing is dangerous.
I am Russel Morgan, and at Morgan Legal Group, we have guided thousands of families through the transfer of wealth. Here is the professional truth: A Will and a Living Trust are not competitors; they are teammates.
For the vast majority of New York homeowners and parents, a robust estate plan requires both. Relying solely on a Will guarantees your family will endure the nightmare of probate. Relying solely on a Trust (without a Will) leaves gaps that can be catastrophic for minor children. This comprehensive cornerstone guide will dismantle the myths, explain the mechanics, and show you exactly how these two powerful documents work together to build a fortress around your family.
Part 1: The Last Will and Testament (The Foundation)
Let’s start with the document everyone knows. The Last Will and Testament is the oldest instrument in estate law. Despite its popularity, in New York, it is a document with severe limitations.
What a Will Does
A Will is essentially a letter of instruction to the Surrogate’s Court Judge. It allows you to:
- Distribute Assets: Tell the judge who gets your car, your jewelry, and your bank accounts.
- Name an Executor: Nominate the person you want to manage the process.
- Name a Guardian: Nominate the person who will raise your minor children. (Crucial: Only a Will can do this).
The Fatal Flaw of the Will: It Guarantees Probate
This is the secret most people don’t know: A Will has no legal authority until a Judge says it does.
When you die with a Will, your family cannot touch your assets. They must hire a lawyer, file a petition in court, and wait for the judge to validate the Will. This process is called Probate.
The Cost of Probate in NY (2026 Update)
Why do we want to avoid probate? Because it is a “voluntary tax” on your estate.
- Delay: In NYC courts (Queens, Brooklyn, Manhattan), probate currently takes 9 to 18 months. During this time, assets are frozen.
- Executor Commissions: New York law entitles your Executor to a commission of roughly 5% of the estate’s value. On a $1 million estate, that is $50,000 gone.
- Legal Fees: Probate attorneys usually charge by the hour or a percentage of the estate.
- Privacy: Once filed, your Will becomes a public record. Anyone can see who you left money to (and who you disinherited).
Part 2: The Revocable Living Trust (The Probate Killer)
If a Will is a letter to a judge, a Revocable Living Trust is a private contract. It is an entity you create while you are alive to hold your assets.
How It Works
Think of a Trust like a box.
- You sign the Trust document (creating the box).
- You transfer your house, your bank accounts, and your stocks into the box (Funding the Trust).
- While you are alive, you hold the key (you are the Trustee). You can put things in and take things out.
- When you die, you hand the key to your successor (Successor Trustee).
Why It Is Essential for New Yorkers
Because the assets are in the “box” (the Trust) and not in your personal name, they do not die with you. Therefore, they do not go to court.
- Immediate Access: Your Successor Trustee can access funds to pay for your funeral and mortgage the next day. No judges. No waiting.
- Total Privacy: The Trust document stays in your lawyer’s safe. The public never sees it.
- Cost Savings: You save the 5% Executor commission and thousands in court filing fees.
- Incapacity Protection: If you have a stroke, your Successor Trustee steps in to pay your bills. A Will offers zero protection while you are alive.
Part 3: Why You Need BOTH (The “Pour-Over” Strategy)
You might be thinking: “If the Trust avoids probate and saves money, why do I need a Will at all?”
This is where the strategy of the Pour-Over Will comes into play.
Reason 1: The “Safety Net” Function
In a perfect world, you would put 100% of your assets into your Trust. In the real world, people forget things.
Scenario: You create a Trust in 2020. In 2025, you open a new savings account or buy a classic car, but you forget to title it in the name of the Trust. You die in 2026.
Without a Will: That car and account become “Intestate” property and are distributed according to state law (which might give them to a relative you dislike).
With a Pour-Over Will: The Will acts as a safety net. It tells the judge: “If I forgot anything outside the Trust, pick it up and POUR IT OVER into the Trust.” It catches the mistake and puts the asset back where it belongs.
Reason 2: Guardianship for Minors
This is non-negotiable for parents. You cannot appoint a legal guardian for your minor children in a Trust. You can only do it in a Will.
If you rely only on a Trust, you might leave your children rich (because the Trust holds the money) but parentless (because the court has to decide who raises them). You need the Will to name the guardian, and the Trust to manage the money for the child.
Part 4: Specific NY Scenarios in 2026
Depending on your life stage, the interaction between these documents changes.
Scenario A: The Young Family in Brooklyn
- Primary Goal: Protecting the kids.
- The Will: Essential to name guardians so the kids don’t end up in Foster Care or with the “wrong” in-laws.
- The Trust: Essential to hold the life insurance payout. If an 8-year-old inherits $1 million directly, the court controls it until they are 18, then hands them a check. A Trust holds the money until they are 25 or 30, paying for college along the way.
Scenario B: The Homeowner in Queens (The “House Rich” Client)
- Primary Goal: Avoiding probate fees and Medicaid recovery.
- The Will: Just a backup.
- The Trust: The hero. By putting the house in a Trust, you avoid the ~$50,000 probate cost.
Note on 2026 Rules: If your goal is Medicaid protection (nursing home), you need a specific type of trust called a Medicaid Asset Protection Trust (MAPT), which is Irrevocable. A standard Revocable Trust does *not* protect against Medicaid, but it *does* avoid probate.
Scenario C: The Business Owner
- Primary Goal: Continuity.
- The Will: Useless for business. Probate freezes business accounts. Payroll cannot be made.
- The Trust: You assign your LLC interests or Corp shares to the Trust. When you die, the Successor Trustee steps in immediately to sign payroll checks and keep the business running.
Part 5: The “Unfunded” Trust Mistake
The biggest tragedy we see at Morgan Legal Group is the “Empty Box.”
A client pays a lawyer to draft a Trust. They sign it. They take the fancy binder home. But they never change the deed to their house. They never change their bank accounts.
The Result: When they die, the assets are still in their individual name. The Trust is empty. The family has to go through full Probate anyway.
Our Approach: We don’t just draft documents; we help you fund the Trust. We prepare the deeds and guide you through the banking changes to ensure the plan actually works.
Part 6: Conclusion – An Investment in Peace of Mind
Estate planning is an act of love. It is about making sure that when you are gone, your family is allowed to grieve, rather than being forced to fight in a courtroom.
In 2026, a “Will vs. Trust” debate is outdated. You need a comprehensive strategy that leverages the strengths of both.
- The Trust shields your wealth from the courts, creditors, and delays.
- The Will protects your children and catches any loose ends.
Don’t leave your legacy to chance (or to the State of New York). Schedule a consultation with the expert team at Morgan Legal Group today. Let us build a plan that stands the test of time.
For more details on how property is distributed if you have no plan at all, review the New York Courts Guide to Intestacy.
