What's the Difference Between a Will and a Trust?

Wills and trusts both say who receives your property, and many families use both. The difference lies in how and when each one works, and in what your family has to go through to carry out your wishes.

The Short Version

• A will takes effect at death, goes through probate, and becomes public.
• A revocable living trust takes effect during your life, controls only the assets you put into it, and passes those assets without probate.
• A trust can also manage your money if you become incapacitated. A will cannot, because it does nothing until you die.

How a Will Works in New York

A will must meet New York’s signing rules. You sign at the end, sign or acknowledge your signature in front of each of at least two witnesses, and declare to each witness that the document is your will. The witnesses sign within a 30-day period (EPTL § 3-2.1).

After your death, your executor files the will with the Surrogate’s Court, which confirms it and issues letters testamentary so the executor can act. The will and the probate file become public records that anyone can review. A will is also the usual place to name a guardian for minor children and to choose your executor.

How a Revocable Living Trust Works

A revocable living trust is created by a written trust agreement, signed by you and at least one trustee (unless you are the only trustee), and either notarized or signed in front of two witnesses (EPTL § 7-1.17). You usually serve as your own trustee, keep full control, and can change or revoke the trust at any time.

The trust controls only assets titled in its name or payable to it. If you become incapacitated, your successor trustee steps in without a court proceeding. At your death, the successor trustee distributes the assets or keeps managing them according to your instructions, privately and without probate. Funding is the step people skip, so read our guide to how to fund a trust.

Testamentary and Irrevocable Trusts

Not every trust is a living trust. A testamentary trust is written into your will and comes into existence only after probate, often to hold money for children until they reach a set age. An irrevocable trust generally cannot be changed once signed, and that permanence is the point: it can move assets out of your taxable estate or help protect them for Medicaid eligibility. A supplemental needs trust (EPTL § 7-1.12) lets a person with a disability receive support without losing SSI or Medicaid.

Which One Do You Need?

A will-based plan may be enough for a young adult with modest assets and no real estate. A trust makes more sense if you own real estate, especially in more than one state, want privacy, have a blended family, have a family member with special needs, or want someone ready to manage your affairs without going to court.

Most trust-based plans also include a pour-over will as a safety net, catching anything left outside the trust. So in practice the real choice is usually between a will alone and a trust plus a will.

How Seraj Law Can Help

We explain the trade-offs for your situation and draft wills and trusts that meet New York’s signing rules. Contact us to talk through which approach fits your family.