Trust vs. Will: Which Do You Need?

One of the most common questions Brooklyn families ask is whether they need a will, a trust, or both. The marketing around trusts can make wills sound obsolete, and the simplicity of wills can make trusts sound like an unnecessary luxury. Picking based on a sales pitch instead of your actual situation is the first mistake. Here is how to choose without regret.

Mistake #1: Assuming a will avoids probate

A will does not avoid probate. In New York, a will must be admitted to Surrogate’s Court under the SCPA before anyone can distribute assets. In Kings County, that means filing in the Brooklyn Surrogate’s Court, notifying heirs, and waiting through a process that can take months. A will controls who inherits and names your executor and guardians for minor children, but it is a ticket into probate, not around it.

Mistake #2: Thinking a will is “too simple” to bother with

For many Brooklyn families, a properly executed will under EPTL 3-2.1 is exactly right. New York is strict about execution: the will must be signed at the end, witnessed by two people, and follow specific formalities. Get those wrong and the document can fail entirely. A will is also the only place to name a guardian for your children, something no trust can fully replace.

Mistake #3: Believing a trust replaces a will

A revocable living trust under EPTL Article 7 can hold your assets, avoid probate, and keep your affairs private. But almost everyone with a trust still needs a “pour-over” will to catch anything left outside the trust and to name guardians. Treating the trust as a complete substitute leaves dangerous gaps.

Mistake #4: Funding failure

The biggest trust mistake in Brooklyn is creating the trust and never funding it. A trust controls only what is titled in its name. If your co-op in Carroll Gardens or your bank accounts are still in your personal name, they go through probate anyway, and you paid for a trust that did nothing. Retitling assets is the step people skip, and it defeats the entire purpose.

Mistake #5: Ignoring what a trust does not do

A revocable trust avoids probate and adds privacy, but it does not save estate tax or protect assets from Medicaid’s five-year look-back. If those are your concerns, you are looking at a different, irrevocable structure. Choosing a revocable trust expecting tax savings is a common and costly misunderstanding.

So which do you need?

If your estate is modest, your assets are simple, and probate length is not a worry, a solid will may be all you need. If you own a Brooklyn home, value privacy, want to spare your family the Surrogate’s Court process, or have out-of-state property, a revocable trust paired with a pour-over will often makes sense. New York’s 2026 estate tax exclusion is $7,350,000 with a sharp cliff near $7,717,500, so larger estates need tax-focused planning beyond either basic tool.

This is general information, not legal advice. The right mix of will and trust depends on your family, assets, and goals. Consult a qualified New York estate planning attorney before deciding what your Brooklyn estate plan should include.