By Paul M. Millman, Attorney · Millman Law Firm
Legal Disclaimer: This article is general information about New York law, not legal advice, and does not create an attorney-client relationship. Whether a trust suits you depends on your assets, family, and goals. Consult a qualified New York attorney.
Clients often arrive having read that a revocable living trust “avoids probate” and therefore must be better than a will. Sometimes that is true. Sometimes the trust adds cost without solving the problem the client actually has. The honest comparison — probate vs revocable living trust — depends on the asset mix, family dynamics, privacy concerns, and how much ongoing attention the client is willing to give the plan.
Millman Law Firm in Mamaroneck handles both estate planning and probate and estate administration, so we see both sides of the comparison in practice.
What Is Probate in New York?
Probate is the Surrogate’s Court proceeding that validates a will and authorizes the executor to collect assets, pay debts and taxes, and distribute property. The court issues Letters Testamentary; the executor then acts under fiduciary duties. For modest estates, New York offers a simplified voluntary administration (small estate) procedure under SCPA Article 13 when qualifying personal property is below the statutory threshold. The New York State Unified Court System publishes public guidance on both paths.
What Is a Revocable Living Trust in New York?
A revocable living trust is an arrangement in which the creator (grantor) transfers assets to a trust during life, usually serving as initial trustee, and names successor trustees and beneficiaries. EPTL 7-1.17 sets execution requirements for lifetime trusts in New York. The grantor may amend or revoke the trust. At death or incapacity, the successor trustee manages and distributes trust assets under the trust’s terms — without Letters Testamentary for those assets.
The key word is funded. Only assets retitled to the trust, or payable to it, avoid probate through the trust.
What Are the Advantages of a Revocable Living Trust?
Privacy. A probated will becomes part of the court file. Trust terms are generally not filed with the Surrogate’s Court when administration proceeds privately.
Continuity during incapacity. A successor trustee can manage funded assets without a guardianship proceeding, complementing a durable power of attorney.
Potentially faster access. Trust assets can often be administered without waiting for Letters, which matters when real estate, investments, or a business need prompt management.
Multi-state real property. Owners of real estate in more than one state may reduce ancillary probate proceedings elsewhere by titling that property in the trust.
Reduced notice exposure. Probate requires notice to distributees; that step can invite objections. A trust does not eliminate disputes, but it changes the procedural path.
What Are the Disadvantages of a Revocable Living Trust?
Up-front cost and effort. Drafting a trust, deeds, and account retitling typically costs more initially than a will alone.
Funding failures. An unfunded or partially funded trust leaves assets that still require probate — often through a “pour-over” will — giving the family both processes instead of one.
No automatic tax savings. A revocable trust is generally disregarded for income tax during life and included in the taxable estate at death. Estate tax planning requires additional provisions or other tools, coordinated with tax planning.
No creditor shield. Because the grantor retains control, assets in a revocable trust generally remain reachable by the grantor’s creditors.
Spousal rights remain. Under New York’s right of election rules (EPTL 5-1.1-A), revocable trust assets are generally treated as testamentary substitutes; a trust does not by itself defeat a surviving spouse’s elective share.
Disputes still happen. Trust validity, trustee conduct, and accountings can be litigated. See Millman’s estate litigation page.
What Does a Typical Comparison Look Like?
Consider a Westchester widow with a house in Rye, a brokerage account, and a condominium in Florida. With only a will, her executor would likely probate the estate in Westchester Surrogate’s Court and open an ancillary proceeding in Florida for the condominium. With a funded revocable trust holding both properties and the brokerage account, her successor trustee could generally manage and distribute those assets without Letters in either state. Her retirement accounts, by contrast, would pass by beneficiary designation under either approach — and should not be retitled to a trust without careful income-tax analysis.
The same trust would not reduce New York estate tax on its own, would not protect the assets from her creditors, and would still be subject to challenge by a disappointed relative. The advantage is procedural, not magical.
When Is Probate the Better Fit?
Probate can be efficient where the estate is straightforward, beneficiaries cooperate, assets are largely in New York, and court supervision is welcome — for example, when a neutral forum helps a family that does not fully trust one another. Court oversight of accountings is a feature for some families, not a burden.
How Should You Decide?
Start with an inventory: what you own, how it is titled, where it is located, and who should inherit. Then weigh privacy, incapacity planning, family dynamics, and your willingness to maintain trust funding. For many clients, the answer is a combination — a trust for certain assets, beneficiary designations for others, and a will as a safety net.
For general professional-education context about working with counsel, see the New York State Bar Association.
Talk With Millman Law Firm About Probate vs. a Trust
Millman Law Firm has served Westchester families for more than 45 years. We listen first, then recommend the structure that fits. Contact Millman Law Firm · 525 Claflin Ave, Mamaroneck, NY · (914) 684-6518.
Legal Disclaimer: Not legal advice; no attorney-client relationship. For court information see nycourts.gov; for general bar education see nysba.org.
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