New York Trust Series · Part 3
What Are the Real Benefits of a Trust? Trust vs. Will vs. Doing Nothing
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Part 2 covered the “why.” This article does the math: for the same family, what is the difference between doing nothing, having only a will, and having a will plus a trust?
What Happens If You Do Nothing?
New York law decides who gets your property (EPTL §4-1.1). Many people assume that without a will, everything goes to the surviving spouse. It does not:
Example (hypothetical): Mr. Li owns a house in Queens and some savings. He dies without a will, leaving his wife and two children. Under New York law, his wife receives the first $50,000, and the rest is split: half to his wife, half to the two children. If the children are minors, their shares are held under court supervision, and each child receives the money outright upon reaching adulthood.
The family must also petition Surrogate’s Court to be appointed administrator, and usually must buy a bond.
Is a Will Enough?
A will lets you decide who inherits, who serves as executor and who will be guardian of your children. That is far better than doing nothing. But:
- A will takes effect only at death and does not help if you become incapacitated;
- A will must go through probate, and every legal heir receives notice and a chance to object;
- Until probate is complete, accounts and the house are generally frozen;
- Once probated, the will is a public record.
What Does Adding a Trust Change?
| Doing Nothing | Will Only | Will + Revocable Living Trust | |
|---|---|---|---|
| Who inherits | Decided by law | Decided by you | Decided by you |
| Court process at death | Yes (administration) | Yes (probate) | Generally not for trust assets |
| Public or private | Public | Public | Generally private |
| If you become incapacitated | Court guardianship may be needed | A will does not help | Successor trustee steps in |
| Children’s inheritance | Outright at adulthood | A will can create a trust for children | Long-term, staged control |
| Out-of-state real estate | Second court proceeding may be needed there | Same | Generally avoided if property is in the trust |
| Upfront cost | None | Lower | Higher |
| Family’s time and cost later | Highest | Moderate | Usually lowest |
What Does Probate Actually Cost, and How Long Does It Take?
- Court filing fee: Tiered by estate size, up to $1,250 (Surrogate’s Court Procedure Act (“SCPA”) §2402).
- Executor’s commissions: New York law entitles the executor to commissions based on the estate’s size (SCPA §2307). On a $1,000,000 probate estate, statutory commissions are about $34,000. Family members serving as executor often waive them, but the right exists.
- Legal fees, appraisals, notarization and authentication costs.
- Time: A simple, uncontested case usually takes months. With overseas heirs, missing heirs or disputes, it can take more than a year.
A trust still needs someone to administer it after death, and a trustee may also be entitled to commissions (usually addressed in the trust document). But the trustee can start working without waiting for court approval, and the overall time and cost are usually lower.
The Main Benefits of a Trust at a Glance
- Saves time: Your family does not wait for court authority;
- Saves hassle: No need to collect signatures from every legal heir, especially those overseas;
- Incapacity protection: The trust keeps working if you become ill;
- Control: You decide at what age and how your children receive money;
- Privacy: Generally not public;
- Out-of-state real estate: Avoids a second court proceeding in another state;
- Supports tax and Medicaid planning when the right type of trust is used (see Part 5).
What Are the Downsides?
- Higher upfront cost: Design, drafting and funding take professional work;
- Funding is required: The house must be re-deeded and accounts retitled, or the trust does nothing;
- Ongoing maintenance: New assets must be added;
- A revocable trust does not save income tax, does not protect you from your own creditors and does not help you qualify for Medicaid.
When Might a Will Be Enough?
- You are young and single, own no real estate, and your main assets are retirement accounts and insurance with named beneficiaries;
- Your personal property in your own name is $50,000 or less and you own no real estate, so your family could use New York’s simplified small estate procedure (SCPA §1301);
- Most assets are already owned jointly with your spouse and your family situation is simple.
Even then, we recommend a power of attorney and a health care proxy, and a regular check of your beneficiary designations.
The Bottom Line
The value of a trust often becomes clear only when something actually happens. At its core, a trust means a little more effort from you now, so your family spends less time in court, waits less and argues less later.
Attorney’s perspective
Clients often ask me whether the upfront cost of a trust is worth it. I lay out your family’s actual situation (where your property is, where your heirs live, how old your children are) and compare it with the time and cost of probate so you can decide. For some families a will and a power of attorney are enough, and I will tell you so.
For advice about your own family’s situation, call +1 718-218-5805 or schedule a consultation. We meet clients in Flushing and Manhattan, in English or Chinese.
Related: Part 4: When Should You Start Planning a Trust? Key Moments in Life | Part 5: What Types of Trusts Are There? A Simple Map
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. For advice about your situation, please contact us.
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