When considering the future, wills and trusts are powerful tools to help control what will happen to your assets. Understanding the differences between wills and trusts and the ability to leverage each type of estate planning document in New York state will equip you with the knowledge you need to create a comprehensive estate plan.

Both of these legal documents serve important roles in distributing assets and protecting your legacy, but differ significantly in their purpose, function, and legal implications.

Key Differences Between Wills and Trusts

• Purpose and function: A will is a legal document that outlines how a person’s assets will be distributed after their death. It also allows for the appointment of guardians for minor children. A trust is a legal arrangement where a trustee holds and manages assets on behalf of beneficiaries, often taking effect during the grantor’s lifetime.
• Probate process: A will must go through probate court, also known as the Surrogate’s Court in New York, where the court oversees the asset distribution process. This process can be time-consuming and expensive. In contrast, assets in a trust bypass the probate process, providing a faster and more efficient transfer of property.
• Control over assets: A will only takes effect after death, meaning the testator (owner) cannot control the disposition of assets during their lifetime. Trusts, especially revocable living trusts, allow grantors to retain control over their assets while alive and plan for incapacity.
• Privacy considerations: Wills are part of the public record after probate, meaning anyone can access them. Trusts, however, remain private, providing confidentiality in the distribution of your assets.

Types of Wills in New York State

New York recognizes several types of wills, including:

• Last will and testament: The most common type of will, detailing how assets will be distributed and appointing guardians.
• Living will: This document specifies medical treatment preferences if the individual becomes incapacitated.

Types of Trusts in New York State

New York offers a variety of trust options tailored to meet different estate planning needs:

• Revocable trusts: These allow the grantor to modify or revoke the trust during their lifetime.
• Irrevocable trusts: These cannot be altered once created, offering significant benefits like protection from creditors and tax advantages.

• Living trusts: Established during the grantor’s lifetime, these trusts manage and distribute assets both during life and after death.
• Testamentary trusts: Created through a will and activated only upon the testator’s death.

Trusts offer greater flexibility and control, catering to more complex financial and family dynamics.

When to Choose a Will Over a Trust

A will is often suitable for individuals with simpler estates who wish to designate guardians for minor children or provide instructions for personal belongings. It is also a cost-effective solution for smaller estates where avoiding probate may not be a priority.

When to Choose a Trust Over a Will

Trusts are a useful tool for those seeking to avoid probate, maintain privacy, or plan for incapacity. They are particularly advantageous for people with substantial or complex assets or those looking to provide for beneficiaries over time, such as young children or individuals with special needs.

Combining a Will and a Trust: Is It Possible?

Yes! In many cases, the most effective estate plans incorporate both wills and trusts. A will can address assets not included in a trust, and together they create a comprehensive estate plan that covers all the bases.

How to Create a Will or Trust in New York

Creating a will or trust in New York requires careful attention to the state’s legal requirements so that your documents are both valid and enforceable. The process begins with assessing your estate planning goals, such as how you want your assets distributed, who will manage your estate, and who will care for your dependents.

For a will, the testator must:

• be at least 18 years old and of sound mind;
• sign the will in the presence of two witnesses, who must also sign within 30 days of each other; and
• appoint an executor to oversee the administration of the estate.

For a trust, the grantor must:

• clearly state their intent to create the trust;
• designate a trustee to manage the assets on behalf of the beneficiaries; and
• properly fund the trust by transferring assets into it, such as property, bank accounts, or investments.

An experienced estate planning attorney is invaluable during this process; they can tailor your documents to reflect your specific needs, minimize potential disputes, and make sure it complies with New York law. A professional can also provide guidance on types of trusts or strategies to protect your estate from probate and taxes, offering you peace of mind that your wishes will be carried out effectively.

Speak With a Lawyer Today!

Planning your estate is one of the most important steps you can take to protect your loved ones and preserve your legacy. A skilled estate planning attorney with comprehensive knowledge of the differences between wills and trusts, and how to leverage each tool effectively, will help you create a strategy that aligns with your goals.

Contact us today to schedule a consultation and start the process of securing your family’s future.

At Tully Rinckey PLLC, our lawyers can help you draft your estate planning documents, or make modifications to the ones you already have. Our attorneys have years of experience in estate planning, and are ready to provide competent, compassionate, and affordable service. Contact us at 8885294543 for a consultation today!

As Senior Counsel at Tully Rinckey, Marlee Stever, Esq. provides legal counsel in the areas of estate planning, trust administration, probate administration, guardianships, conservatorships, and estate tax matters. With a robust background in crafting comprehensive estate plans, Marlee focuses on developing strategies that protect clients’ assets and ensure financial stability for future generations.