Choosing a trust is rarely a question of “good” versus “bad” — it is a question of trade-offs. A revocable trust buys you control; an irrevocable trust buys you protection. A trust avoids probate; a will runs through the Surrogate’s Court. This FAQ is built around those comparisons so you can see, side by side, which New York estate-planning tool actually fits your goals.
Morgan Legal Group serves clients statewide — across New York City, Long Island, Westchester, the Hudson Valley, and Upstate New York. Below, attorney Russel Morgan, Esq., answers the questions we hear most, with every answer grounded in New York’s Estates, Powers and Trusts Law (EPTL).
Quick comparison: the main trust options at a glance
| Feature | Revocable Living Trust | Irrevocable Trust | Special Needs Trust (SNT) |
|---|---|---|---|
| Can you amend or revoke it? | Yes — full control retained | Generally no | Limited; drafted for a disabled beneficiary |
| Avoids probate? | Yes | Yes | Yes |
| Reduces NY estate tax? | No (assets stay in your taxable estate) | Yes | Depends on type/funding |
| Asset protection / Medicaid? | No | Yes (5-year look-back applies) | Preserves means-tested benefits |
| Primary use case | Probate avoidance, privacy, incapacity | Tax reduction, asset protection, Medicaid | Protect a disabled loved one’s benefits |
| Governing law | EPTL Article 7 | EPTL Article 7 | EPTL 7-1.12 |
Learn more on our Trusts Overview page.
What is the single biggest difference between a revocable and an irrevocable trust?
Control versus protection. With a revocable living trust, you (the grantor) keep the keys: you can amend it, revoke it, move assets in and out, and serve as your own trustee. That flexibility is also its limitation — because you retain control, the assets remain in your taxable estate and are not shielded from creditors or Medicaid.
An irrevocable trust is the opposite bargain. You generally give up the right to amend or revoke it, and in exchange the trust property can be removed from your taxable estate, protected from certain creditors, and positioned for Medicaid eligibility. You trade flexibility for protection. Compare the two in depth on our Revocable Living Trust and Irrevocable Trust pages.
Which trust should I use if my main goal is avoiding probate?
Either a revocable or irrevocable trust will keep assets out of the Surrogate’s Court — that is the shared advantage of any properly funded trust. So the deciding factor is your secondary goal:
- Want probate avoidance plus the ability to change your mind? A revocable living trust.
- Want probate avoidance plus estate-tax savings or asset protection? An irrevocable trust.
Probate avoidance alone almost always points to the revocable trust, because it delivers privacy and incapacity protection without surrendering control.
Does a revocable living trust save estate taxes in New York?
No — and this is the most common misconception we correct. A revocable living trust does not reduce your New York estate tax. Because you retain the power to revoke it, the law treats the assets as still yours; they remain fully in your taxable estate. If estate-tax reduction is a priority, that is an irrevocable-trust conversation, not a revocable-trust one.
How does an irrevocable trust help with Medicaid?
Medicaid planning is one of the leading reasons New Yorkers use irrevocable trusts. Assets properly transferred into an irrevocable trust can stop being “countable” for long-term-care Medicaid — but timing is everything. New York applies a 5-year look-back: transfers made within five years before applying for institutional Medicaid can trigger a penalty period. The practical lesson is to plan early, before care is needed. See our Irrevocable Trust page for how this works.
What is a Special Needs Trust, and when is it the right choice?
A Supplemental (Special) Needs Trust is the right tool when a beneficiary receives — or may need — means-tested public benefits such as Medicaid or SSI. Authorized under EPTL 7-1.12, an SNT holds funds for a disabled person without those funds counting against their eligibility, so they keep their benefits while the trust pays for extras that improve quality of life.
The comparison matters here: leaving money to a disabled loved one outright can accidentally disqualify them from benefits, while an SNT preserves both the inheritance and the eligibility. Details are on our Special Needs Trust page.
Trust vs. Will — which one do I actually need?
Most New Yorkers benefit from both, but they do different jobs:
| Trust | Will | |
|---|---|---|
| Probate | Avoids it | Must be probated in Surrogate’s Court |
| Privacy | Private | Public record |
| Takes effect | During life and after death | Only at death |
| Incapacity planning | Yes | No |
| Names a guardian for minors | No | Yes |
A will is essential for naming guardians and acting as a safety net, while a trust delivers privacy, incapacity protection, and probate avoidance. They work together. Our Trust vs. Will page walks through how to layer them.
What is the New York estate tax exemption in 2026, and what is the “cliff”?
For 2026, New York’s basic exclusion amount is $7,350,000. But New York has an unusual feature called the “cliff.” If your taxable estate exceeds 105% of the exclusion — $7,717,500 in 2026 — you lose the entire exemption, not just the excess. Your whole estate becomes taxable.
| 2026 NY Estate Tax | Amount |
|---|---|
| Basic exclusion amount | $7,350,000 |
| Cliff threshold (105%) | $7,717,500 |
| Effect of exceeding the cliff | Entire exemption lost |
Because the cliff is so punitive, estates near these thresholds often use irrevocable trusts and lifetime gifting to stay below the line. See tax.ny.gov for current figures.
What duties does a trustee owe in New York?
A trustee is a fiduciary, held to strict standards under New York law:
- Prudent investor standard — under EPTL Article 11-A, the trustee must invest as a prudent investor would, balancing risk and return.
- Duty of loyalty — the trustee must act solely in the beneficiaries’ interest, never for personal gain.
- Duty to account — the trustee must keep records and account to the beneficiaries.
Trustee commissions are set by statutory schedules under the SCPA and EPTL rather than by guesswork. Choosing the right trustee — and understanding these obligations — is covered on our Trust Administration page.
How do I decide which option is right for me?
Start with your top priority and let the comparison guide you: choose a revocable trust for control and privacy, an irrevocable trust for tax and asset protection, and a special needs trust to protect a disabled beneficiary. Many plans combine several of these. The right mix depends on your assets, your family, and your goals — which is exactly what a planning consultation is for.
Ready to compare your options with an attorney? Schedule a consultation with Russel Morgan, Esq.
Further reading from Morgan Legal Group: how an irrevocable trust works.