When a Brooklyn family loses a parent who left only a will, their next nine months—often longer—belong to the Kings County Surrogate’s Court. Every asset, every debt, and every beneficiary becomes a matter of public record. The will, once a private document, is filed and made accessible to anyone who asks. This public process, known as probate, is the default path for settling an estate in New York. But it is not the only path.
For decades, I have guided families through this court-supervised process. It is often necessary, but it is rarely private and almost never fast. A trust provides a more intentional way to transfer a legacy from one generation to the next—one that maintains privacy and gives you, the creator, far more control.
A Will Is Public. A Trust Is a Private Agreement.
Many people think of a will and a trust as interchangeable. They are fundamentally different instruments. A will is a set of instructions for a judge. It has no legal authority until you pass away and the Surrogate’s Court validates it. It is an invitation for court oversight.
A trust, on the other hand, is a private legal agreement. It’s a contract you create during your lifetime to hold and manage your assets for the benefit of others. You—the grantor—create the trust, transfer assets into it, and appoint a trustee to manage those assets according to the rules you set. Because the trust owns the assets, there is nothing for the probate court to administer upon your death. The assets simply pass to your beneficiaries under the management of your chosen trustee, according to your private instructions.
This structure accomplishes two immediate goals. First, it bypasses probate entirely, saving your family significant time, expense, and stress. Second, it keeps your family’s financial affairs private. No public inventory of assets, no public record of who inherits what. It is a quiet, dignified transfer of stewardship.
The Trustee: Your Chosen Steward, Bound by Law
The person or institution you name to manage the trust is the trustee. This is one of the most critical decisions you will make. Your trustee acts as a fiduciary—a legal term that carries immense weight. It means they have a duty of absolute loyalty to the trust’s beneficiaries and must act solely in their best interests.
This is not a casual responsibility. In New York, a trustee’s conduct is governed by the Estates, Powers and Trusts Law (EPTL). For example, EPTL § 11-2.3, also known as the Prudent Investor Act, legally requires a trustee to manage and invest the trust’s assets as a prudent person would. This isn’t just a suggestion; it is a legal standard against which their performance can be measured and challenged in court. They must consider the trust’s purposes, terms, and distribution requirements, all while managing risk and return.
This legal framework is what gives a trust its power. You are not just hoping your chosen steward does the right thing—you are empowering them within a system of law that demands it. You can direct them to distribute funds for a child’s education, provide for a spouse, or support a charity, all with the full backing of established New York law.
Revocable vs. Irrevocable: The Right Tool for the Job
The concept of a trust is flexible. Not all trusts are created for the same purpose, and the structure we recommend depends entirely on the family’s specific goals. The two broadest categories are revocable and irrevocable trusts.
A Revocable Living Trust is the most common tool for probate avoidance and incapacity planning. It is exactly what it sounds like—revocable. You can change it, amend it, or even dissolve it entirely during your lifetime. You can act as your own trustee, maintaining full control over your assets. It provides no asset protection from creditors while you are alive, but upon your death, it becomes irrevocable and serves its purpose of privately transferring your legacy.
An Irrevocable Trust is a more permanent structure. Once you transfer assets into it, you generally cannot take them back. In exchange for relinquishing that control, you gain significant advantages, primarily in asset protection and tax planning. For example, families use irrevocable trusts to shield a home from the high costs of long-term care, to move assets out of their taxable estate, or to protect inheritances for children from their own potential creditors or divorces.
The choice is not a matter of which is “better,” but which is the prudent instrument for the task at hand. Is the primary goal simply to avoid probate, or is there a need for generational asset protection?
A trust is more than just a legal document. It is the architectural plan for your legacy, designed to function in your absence with precision and privacy. It replaces the public process of a court with a private plan administered by a chosen fiduciary. Stewardship.
The first step in this process is to get a clear picture of what you own and who you want to protect. To facilitate this, our firm has developed a Legacy Inventory worksheet. If you would like to schedule a consultation to review this worksheet and discuss how a trust could serve your family, please contact our office to arrange a meeting.
