Every New York parent needs to know these trust and will basics to complete their estate plan. A will is the only document that lets you name a guardian for your children. A trust keeps your assets out of probate and controls how and when your children receive their inheritance. How much planning you need depends on your family structure, the ages of your children, and the value of your estate.
Having children changes everything, including what happens if you are not here to take care of them. Most parents know they should have a plan in place. Far fewer actually have one. If you have been putting it off, you are not alone, but the stakes are too high to keep waiting.
Attorneys Ken Seligson and Rich Jordan of Seligson Law work with growing families across New York to put the right documents in place before they are needed. Below, Ken explains what a will and a trust each do, why New York families need both, and what to prioritize first.
What a Will Does for Your Family
A will is the foundation of any family estate plan. It is a legal document that tells the court how you want your assets distributed after you die, who you want to manage that process, and most importantly for parents, who you want to raise your children if you are no longer here.
Under EPTL Section 3-2.1, a valid New York will must be signed at the end of the document in the presence of two witnesses who also sign within 30 days of each other. If your will does not meet these requirements, it can be declared invalid, which means New York’s intestate succession laws take over and the court makes decisions you should have made yourself.
Naming a guardian for your children
This is the single most important reason for a parent to have a will. If you die without a valid will that names a guardian for your minor children, a New York court decides who raises them.Â
The court considers the best interests of the child, but it is not bound by your preferences unless they are on record. A will is the only place to formally document who you want to raise your children.
What a will does not do
A will does not avoid probate. When you die, your will has to go through the New York Surrogate’s Court before your assets can be distributed.Â
That process is public, can take months, and involves court and attorney fees. A will also does not control assets that pass by beneficiary designation, such as retirement accounts and life insurance, or assets held jointly with a right of survivorship.
What a Trust Does for Your Family
A revocable living trust is the tool that fills the gaps a will leaves open. It is a legal arrangement where you transfer ownership of your assets into a trust during your lifetime, name yourself as the trustee so you retain full control, and designate a successor trustee who takes over when you die or become incapacitated.
Avoiding probate
Assets held in a properly funded trust pass directly to your beneficiaries after your death without going through Surrogate’s Court. There is no public record, no court approval required, and no waiting period. Your successor trustee can act immediately. For families with real estate, investment accounts, or other significant assets, this can save months of delay and thousands in fees.
Controlling when your children inherit
Minor children cannot legally manage significant assets in New York. If you leave money directly to a child under 18, a court may appoint a guardian of the property to manage the funds until the child turns 18, at which point they receive everything at once with no structure. Most parents do not want an 18-year-old receiving a large inheritance with no oversight.
A trust solves this. You set the terms. You decide whether your child receives funds at 21, 25, 30, or in stages. You can specify that distributions are made for education, health, or housing before a certain age. You are in control, even after you are gone.
A trust must be funded to work
Creating a trust document is only half the job. For the trust to actually protect your assets, those assets must be transferred into the trust’s name. A bank account that is never retitled, a home whose deed is never updated, a brokerage account that is never moved… none of these are controlled by the trust. They still go through probate as if the trust did not exist.
Why New York Families Need Both
A will and a trust work together as a system, not as alternatives. Here is why you should consider both:
- Your will names a guardian for your children. A trust cannot do this.
- Your trust keeps your assets out of probate and controls your children’s inheritance. A will alone cannot do this.
- Your will acts as a safety net, sometimes called a pour-over will, that catches any assets not already in the trust and directs them into it at your death.
- Together, they ensure that both your children and your assets are protected.
Choosing between a will and trust is really not a choice at all for New York families. The question is not which one you need, but rather whether both are in place and actually working together. Learn more about common estate planning mistakes New York families make.
What Else Should Be Part of Your Family’s Estate Plan
A will and a trust are the core, but a complete New York estate plan for a growing family also includes:
A durable power of attorney
Without a durable power of attorney, your family has no legal authority to manage your finances if you become incapacitated. They would need to go to court to get that authority, which takes time and money.
A health care proxy
This designates someone to make medical decisions on your behalf if you cannot speak for yourself. Without one, medical providers may turn to family members who disagree or default to procedures you would not have chosen.
Updated beneficiary designations
Retirement accounts and life insurance pass by beneficiary designation, not through your will or trust. If your designations are outdated, for example, if they still name a parent or ex-spouse, those assets may go to the wrong person regardless of what your other documents say. Reviewing these after every major life event is essential. Learn what to update after a major life event.
How New York Law Governs Wills and Trusts for Families
Wills in New York are governed by Article 3 of the Estates, Powers and Trusts Law. Trusts are governed by Article 7 of the same law. Both documents must comply with New York’s execution requirements to be valid, and both are administered through the Surrogate’s Court when they come into effect.
For families with minor children, the guardian nomination in a will is subject to court review. The court will appoint the person you named unless there is a specific reason not to. Having your wishes clearly documented is the strongest protection you have.
Protect Your Family With an Estate Plan from Seligson Law
The best estate plan is one that exists. A will that names a guardian, a trust that controls your children’s inheritance, and a power of attorney that protects your household while you are alive covers the most important ground.Â
Ken Seligson and the estate planning team at Seligson Law work with families across New York to make sure all of it is in place. Send us a message to get started.
Frequently Asked Questions About Wills and Trusts for Growing New York Families
1. Do I need a will or a trust in New York if I have children?
You should consider both. A will is the only document that lets you name a guardian for your minor children. A trust controls how and when your children receive their inheritance and keeps your assets out of probate. They serve different purposes and work best together.
2. What happens to my children if I die without a will in New York?
A New York court decides who raises them based on the best interests of the child. The court is not bound by your preferences unless they are documented in a valid will. Without a will, New York’s intestate succession laws also determine who receives your assets, which may not reflect your wishes.
3. Can a trust replace a will in New York?
No. A trust cannot name a guardian for your minor children. A will is required for that. A trust also does not automatically capture assets that were never transferred into it. Most New York families need both a trust and a pour-over will working together as a complete system.
4. What age do my children receive their inheritance under a trust?
You decide. When you create a trust, you set the terms for when and how your children receive distributions. You can specify that funds are released at a certain age, in stages, or only for specific purposes such as education or housing. This is one of the most important advantages a trust has over a will for families with young children.
5. What is a pour-over will?
A pour-over will is a will used alongside a trust. It directs that any assets you own at death that were not already in your trust are transferred into it. This ensures that assets you forgot to retitle or acquired after setting up the trust are still controlled by your trust’s terms rather than distributed under intestate succession.
6. How often should I update my estate plan after having children?
Review your plan after every major life event, including the birth of each child, a move to a new state, a significant change in assets, or the death of a named guardian or trustee. Even without a major event, reviewing your documents every three to five years helps make sure they still reflect your wishes and current law.
7. Can I write my own will in New York to save money?
Technically yes, but New York has strict execution requirements, and a single mistake can make the entire document invalid. For families with children, the stakes of an invalid will are too high. The cost of having an attorney draft your will is modest compared to the consequences of a court deciding who raises your children because you chose to draft your own.
