A family in Brooklyn Heights loses their matriarch. She was organized and prudent, and she left behind a detailed will. Her children, expecting a straightforward process, are surprised to learn the will must be filed with the Kings County Surrogate’s Court. For the next nine to twelve months, their mother’s assets—her home, her investments, her savings—are frozen, subject to public proceedings and potential challenges. They followed her wishes but didn’t anticipate the delay and lack of privacy inherent in probate. This is a story I see often, and it highlights a common misunderstanding about what a will can and cannot do.
A will is a vital document, but it is essentially a letter of instruction to a court. A trust, on the other hand, is a private contract. It’s an agreement you create to hold and manage your assets for the benefit of your loved ones, both during your lifetime and after. It is not filed with a court. It does not become public record. It allows your chosen successor trustee to step in and manage affairs seamlessly, without court intervention, if you become incapacitated or pass away.
The Trust as a Vehicle for Stewardship
I encourage my clients to think of a trust not as a legal tool, but as a vessel for their legacy. You, the grantor, create the vessel and write the rules for how it operates. You appoint a trustee—a person or institution you trust implicitly—to act as its captain. And you name beneficiaries, the people who will ultimately receive the benefit of the assets inside.
In New York, there are two primary categories of trusts we work with:
- Revocable Living Trusts: This is the most common structure for families looking to avoid probate. It’s called “living” because you create it during your lifetime, and “revocable” because you can change it, amend it, or dissolve it entirely as your circumstances change. You can act as your own trustee, maintaining full control over your assets. It’s your money, just held under a different legal title.
- Irrevocable Trusts: These trusts are different. Once you place assets into an irrevocable trust, you generally cannot take them back. This loss of control comes with significant advantages, particularly for high-net-worth individuals concerned with estate taxes or in need of long-term care planning and asset protection. The decision to make a trust irrevocable is a serious one, demanding careful consideration of generational goals.
Creating a trust is a formal process. Under New York Estates, Powers and Trusts Law (EPTL) § 7-1.17, a lifetime trust must be in writing and executed with the same formality as a will. This isn’t arbitrary—the law recognizes the immense responsibility being transferred and demands a deliberate, witnessed act.
Choosing Your Trustee: The Human Element
The single most important decision in creating a trust is choosing your trustee. This individual or institution has a profound legal and ethical obligation known as a fiduciary duty. This is the highest standard of care recognized by law. A trustee must act with unwavering loyalty, prudence, and impartiality, always placing the interests of the beneficiaries above their own.
Who is the right person for this role? It could be a responsible adult child, a trusted sibling, or a close family friend. Family dynamics, however, can complicate things. Appointing one child as trustee over their siblings can create tension. For that reason, many of my clients choose a corporate trustee—a bank or trust company—or a professional like an attorney or accountant. A professional trustee brings impartiality and expertise, ensuring the trust is administered according to its terms and New York law, free from emotional conflict.
We spend a great deal of time counseling clients on this decision. We discuss contingencies—what happens if your first choice for trustee is unable or unwilling to serve? Naming one or even two successor trustees is a critical part of building a resilient plan.
Beyond Probate Avoidance
While avoiding Surrogate’s Court is a primary motivator for many, trusts accomplish much more. They are powerful instruments for intentional stewardship.
A trust allows you to control your legacy with incredible specificity. You can stagger distributions to a young beneficiary, ensuring they don’t receive a large inheritance before they are mature enough to handle it. You can create a trust to protect the inheritance of a child from a future divorce or from creditors. For families with a special needs child, a Supplemental Needs Trust can provide for their quality of life without jeopardizing essential government benefits.
This is the real work of estate planning. It’s not just about transferring wealth; it’s about providing security, protecting loved ones, and ensuring your assets support your family in the way you intend for generations to come. It is a deliberate act of care.
If you are responsible for the well-being of others, it’s worth understanding how your current plan would function in reality. A good first step is to create a simple list of your major assets—real estate, investment accounts, business interests—and identify who is currently named as the beneficiary or joint owner. If you would like to discuss how these assets could be structured within a trust to protect your family, schedule a confidential review with my office to analyze your situation.
