Clients frequently ask us whether a revocable living trust or a testamentary trust is the right answer for their family. The truth is that both are legitimate tools under New York law, and the better fit depends on your assets, your privacy preferences, and how much you want to avoid the Surrogate's Court process.
How a Revocable Trust Works
A revocable living trust is created and funded during your lifetime. You typically serve as trustee while you are able, retain the right to amend or revoke it, and name a successor trustee to step in if you become incapacitated or when you die. Because assets titled in the trust's name pass outside your probate estate, a properly funded revocable trust can help your family avoid Surrogate's Court proceedings altogether for those assets. That means faster distributions, less public record exposure, and often lower administration costs. Our revocable living trust guide walks through the mechanics in more detail, including how New York's EPTL treats revocable trusts and the funding steps that make or break the plan.
How a Testamentary Trust Works
A testamentary trust, by contrast, is created inside your will and only comes into existence after you die and your will is admitted to probate under SCPA Article 14. Nothing happens during your lifetime - there is no separate trust document to sign or fund, and you keep full, unrestricted control of your property until death. The tradeoff is that a testamentary trust must go through probate, which means court filings, potential delays, and a public record. For many families, that tradeoff is acceptable, particularly when the estate is modest, the plan is simple, or the priority is minimizing upfront legal costs rather than avoiding probate.
Questions That Help Clarify the Choice
When we sit down with a family, a few questions usually point toward one structure or the other:
- Do you own real estate, especially property in more than one state, where avoiding ancillary probate matters?
- Is privacy around your estate a priority, or is a public probate record acceptable?
- Do you want a plan that also protects you if you become incapacitated, not just after death?
- Are you comfortable with the ongoing task of retitling assets into a trust, or would you prefer a set-it-and-forget-it will-based plan?
- Do you have minor children or beneficiaries who will need trust management for years, regardless of which vehicle creates that trust?
It's also worth remembering these aren't mutually exclusive. Many of our Brooklyn and Manhattan clients use a revocable trust as the primary planning vehicle while still signing a pour-over will that catches any assets left outside the trust and directs them into it through probate as a backstop.
Getting the Structure Right for Your Family
There's no universal right answer - a family with a Brooklyn brownstone and out-of-state vacation property has different needs than a family whose primary asset is a retirement account with named beneficiaries.
If you're weighing a revocable trust against a testamentary trust, Marianna Schwartsman can walk through your specific family situation and recommend a structure that fits. Schedule a free consultation or call +1 212 518 3868 to get started.
