A living trust and a will both help you distribute your assets after you pass away, but they work very differently. The main difference is that a living trust takes effect while you are alive and avoids probate court, while a will only takes effect after your death and must go through the probate process. However, each tool serves different purposes, and many people benefit from having both in their estate plan.
At Davies Law Firm, Central New York estate planning attorneys Frederick P. Davies and William P. Davies help families in Syracuse and throughout Onondaga County understand which estate planning tools fit their needs. Our estate planning lawyers guide clients through the differences between living trusts and wills, helping you make informed decisions that protect your assets and your loved ones.
This guide explains what each document is, when they take effect, the probate process, privacy differences, asset transfer requirements, pour-over wills, costs, and which option works for your situation. If you need help choosing the right plan for your family, call Davies Law Firm at (315) 472-6511 to schedule a telephone conference.
What Is a Living Trust?
A living trust is a legal arrangement you create during your lifetime. You transfer ownership of your assets into the trust, and a trustee manages those assets according to your instructions. The trust continues to operate even after you pass away, distributing assets to your beneficiaries without court involvement.
Under New York law, the person who creates the trust is called the trustor, also commonly referred to as the settlor or grantor. The trustee is an individual chosen by the trustor to hold legal title to the trust’s assets and manage them for the benefit of the beneficiaries. Most people name themselves as the initial trustee, which allows them to maintain full control over their assets while they are alive and capable.
A living trust can be revocable or irrevocable. A revocable living trust allows you to change the terms, add or remove assets, or dissolve the trust entirely at any time. An irrevocable trust cannot be changed once it is created, which provides certain asset protection and tax benefits but requires you to give up control of the assets.
Key Takeaway: A living trust is created during your lifetime and allows you to control your assets while avoiding probate court. You can modify a revocable living trust at any time, but an irrevocable trust cannot be changed.
What Is a Will?
Under New York law, a will is a written legal document that directs how your assets should be distributed after your death. Under EPTL § 3-2.1, a valid will generally must be in writing, signed by the testator, and properly witnessed by at least two people.
A will names an executor who is responsible for gathering your assets, paying debts and taxes, and distributing property to your beneficiaries. A will can also include other directions that take effect after death, such as entrusting the guidance of any minor children.
Unlike a living trust, a will has no effect until you die. The will must go through probate, a court-supervised process in New York Surrogate’s Court that validates the will and oversees the distribution of assets. The probate process is governed by the Surrogate’s Court Procedure Act (SCPA).
When Does Each Take Effect?
Living Trust Takes Effect Immediately
A living trust becomes effective as soon as you sign it and transfer assets into the trust. Because the trust is active during your lifetime, it can manage and distribute assets if you become incapacitated. A successor trustee can step in to handle your financial affairs without requiring court intervention.
This feature makes a living trust particularly valuable for incapacity planning. If you become unable to manage your own affairs due to illness or injury, your successor trustee can immediately access trust assets and pay bills, manage investments, and handle other financial matters on your behalf.
Will Takes Effect Only After Death
A will has no legal effect until you pass away. While you are alive, you retain full control over all your property, and the will can be changed or revoked at any time. However, this means a will does not help with incapacity planning unless you also have a durable power of attorney.
After your death, the will must be submitted to the probate court before your executor can take any action. The court must validate the will and issue letters testamentary, which give the executor legal authority to act on behalf of the estate.
Key Takeaway: A living trust works immediately and can manage assets if you become incapacitated. A will only takes effect after death and does not help during incapacity.
Estate Planning Attorneys in Central New York – Davies Law Firm, P.C.
Frederick P. Davies, Esq.
Frederick P. Davies, Esq., is a Syracuse estate planning attorney with nearly four decades of legal experience. He graduated from Syracuse University College of Law in 1985 and served as a Judge Advocate General in the U.S. Navy before transitioning to the U.S. Air Force, where his military career spanned nearly three decades. As a Colonel, USAF (retired), Mr. Davies served as the Estate Planning Subject Matter Expert for the U.S. Air Force and worked as a senior legal instructor at the Air Force’s legal education center.
In 1993, Mr. Davies established Davies Law Firm in Central New York to focus exclusively on estate and long-term planning. He has delivered over 1,000 presentations on Medicaid, taxes, and elder care topics. Mr. Davies is an active member of the American Bar Association and the Estate Planning Council of Central New York. His extensive background in both military and civilian estate planning gives clients confidence that their plans are thorough, legally sound, and designed to protect their families.
William P. Davies, Esq.
William P. Davies, Esq., is a partner at Davies Law Firm and has contributed to the firm since his teenage years. He graduated magna cum laude from Albany Law School and earned an L.L.M. in Estate Planning from the University of Miami School of Law. Admitted to practice in both New York and Florida, Mr. Davies focuses his legal work on wills, trusts, tax strategies, and estate administration.
Mr. Davies has published legal commentary, served on the Albany Law Review editorial board, and received a Sponsler Fellowship recognizing academic achievement. He has presented at legal education events across New York and contributed to continuing education programs for attorneys and financial professionals. He served as President of the Estate Planning Council of Central New York and is an active member of the American Bar Association, New York State Bar Association, and Onondaga County Bar Association. Clients benefit from his academic rigor and commitment to clarity and precision in planning.
How Does the Probate Process Differ?
Living Trusts Avoid Probate
Property that is properly titled in a living trust usually does not need to go through Surrogate’s Court probate. After you pass away, the successor trustee can administer and distribute trust assets under the trust terms without first getting court authority. Assets that are not in the trust may still require probate.
A properly funded living trust lets the successor trustee begin administering and distributing trust assets without waiting for the Surrogate’s Court to issue authority. Timing still depends on the trust terms, the type of assets, and any debts or tax issues, but trust administration often moves faster than court-supervised probate.
Wills Must Go Through Probate
A will must go through probate in Onondaga County Surrogate’s Court, located at 401 Montgomery Street in Syracuse. The probate process involves several steps that can take months or even years to complete.
First, the will must be submitted to the court along with a death certificate and probate petition. The nominated executor or the assigned administrator is tasked with notifying all beneficiaries and distributees (statutory heirs), giving them an opportunity to object to the will. If no objections are filed, the court admits the will to probate and issues letters testamentary to the executor.
The executor must then gather all estate assets, pay debts and taxes, and file an accounting with the court. After the court issues letters testamentary, the executor gathers assets, pays valid debts and taxes, and then distributes property under court rules. In practice, probate can take several months or longer, especially if the estate is complex or if someone objects. At a minimum, probate will take 7 months from the appointment of the executor or administrator. This timeframe allows creditors to submit claims against the estate.
| Factor | Living Trust | Will |
|---|---|---|
| Court Process | No probate required | Must go through probate court |
| Timeline | Often faster because trust assets usually avoid the probate court process | Takes at least 7-9 months, often longer, depending on the estate and whether anyone objects |
| Court Supervision | None | Full court oversight |
| Executor/Trustee Authority | Immediate | Only after the court issues letters |
What About Privacy?
Living Trusts Remain Private
A living trust is a private document that does not become part of the public record. The terms of your trust, the value of your assets, and the identity of your beneficiaries remain confidential. Only the people you choose to involve in the trust administration will know the details of your estate plan.
Many families in Central New York value this privacy, especially when family dynamics are complicated or when substantial assets are involved. Privacy can help prevent disputes among family members and protect beneficiaries from unwanted attention.
Wills Become Public Record
Once a will is submitted to the probate court, it becomes a public document. Anyone can request a copy of the will from the Surrogate’s Court and view information about the estate’s assets, beneficiaries, and distribution plan.
The public nature of probate can create problems. Family members or others who were not named in the will may challenge it in court. Creditors can easily identify estate assets. And details about your financial affairs become available to anyone who wants to look.
For example, if you own firearms in New York, the probate process requires specific disclosures. Under the New York Surrogate’s Court Procedure Act (SCPA § 2509), if your estate must go through probate to distribute assets, your executor is legally required to file a detailed “Firearms Inventory” with the Surrogate’s Court.
This inventory requires your executor to list the exact make, model, caliber or gauge, and serial number of every rifle, shotgun, and handgun you owned. Furthermore, the executor is mandated to submit a copy of this itemized inventory directly to the New York State Division of Criminal Justice Services (DCJS) in Albany.
However, if you avoid probate entirely, such as by properly funding a living trust, this court reporting requirement is not triggered. Because the trust handles the private transfer of your property outside the court system, your successor trustee does not have to file an inventory of assets with the Surrogate’s Court, meaning no itemized list of your firearms is supplied to the court or the DCJS.
Note: While a living trust avoids the Surrogate’s Court reporting requirement, the actual physical transfer of firearms to your beneficiaries must still comply with New York’s penal laws and the SAFE Act regarding lawful possession and licensing.
Key Takeaway: Living trusts remain private documents, while wills become public record during probate. This privacy difference is important for many families.
Do You Need to Transfer Assets?
Living Trusts Require Funding
For a living trust to work, you must transfer ownership of your assets into the trust. This process is called “funding” the trust. You must change the title on real estate, bank accounts, investment accounts, and other assets from your personal name to the name of the trust.
For example, if you own a home in Syracuse, you would execute a deed transferring ownership from yourself to yourself as trustee of your living trust. Bank and investment accounts must be retitled in the trust’s name. Vehicles, business interests, and other property must also be transferred.
Davies Law Firm helps ensure that our clients’ trusts are fully and correctly funded. If you own a home in Syracuse, we can assist in preparing and recording the new deed transferring the property from your individual name to the trust. We can also provide specific letters of direction to help you work with financial institutions to retitle bank accounts, investment portfolios, and business interests.
Funding a trust requires ongoing attention as your financial life evolves. If you acquire new assets or open new accounts years after establishing your trust, they must be titled in the name of the trust to avoid probate. Davies Law Firm can help you manage these transitions over time, verifying that current and future assets remain properly aligned with the estate plan so that your wealth transfers smoothly.
Wills Do Not Require Asset Transfers
A will does not require you to transfer any assets during your lifetime. All property remains in your personal name until you pass away. At that point, the executor gathers the assets and distributes them according to the will’s instructions.
This simplicity makes wills easier to create and maintain. You do not need to retitle accounts or record new deeds. However, all assets in your personal name at death must go through probate.
What Is a Pour-Over Will?
Most people with a living trust also create a pour-over will. This special type of will works as a safety net. If you forget to transfer an asset into your trust or if you acquire property shortly before death, the pour-over will directs that asset into the trust.
The pour-over will essentially say that any property in your personal name at death should be transferred to your living trust. The asset must still go through probate, but once the probate process is complete, the executor transfers the asset to the trust, where it is distributed according to the trust’s terms.
A pour-over will can also handle any instructions that must be handled through a will. This is one reason many people with living trusts still keep a pour-over will as part of a complete plan.
Key Takeaway: A pour-over will works with a living trust to catch any assets not transferred during your lifetime. Most people with a living trust also need a pour-over will.
How Do Costs Compare?
Initial Creation Costs
Creating a will is generally less expensive than creating a living trust. A simple will plan is less costly than a trust plan, while a full trust estate plan can cost more due to the work and experience it takes to create.
However, initial cost is only part of the equation. You may want to consider the costs that occur after your death as well.
Long-Term Costs and Fees
While a living trust often costs more to create, it may reduce or avoid some probate-related expenses because trust assets usually do not go through the Surrogate’s Court probate process. Probate expenses can include court fees and professional fees, and the executor may also be entitled to statutory commissions under SCPA § 2307.
That said, a living trust does not eliminate all costs. Trust administration can still involve legal, tax, and accounting work, and any assets left outside the trust may still require probate.
Which Estate Planning Tool Is Right for You?
When a Will May Be Sufficient
A will may meet your needs if:
- You have a relatively simple estate with a value of under $50,000.00
- You want to keep initial costs low
- You do not have concerns about privacy
- You are comfortable with the probate process
Wills can work well for people with simpler estates who are comfortable with the probate process and want a straightforward plan. In New York, estates valued under $50,000 may qualify for a simplified probate process called voluntary administration. This streamlined procedure reduces time and costs, making a will more practical for smaller estates.
When a Living Trust Makes Sense
A living trust may be appropriate if:
- You own real estate
- You want to avoid probate delays
- You value privacy
- You have beneficiaries in multiple states
- You own a business
- You are concerned about incapacity planning
Many families in Central New York choose living trusts because they provide more control over asset distribution and protect beneficiaries from the public probate process. Living trusts are particularly valuable for people who own property in multiple states. Without a trust, your executor would need to open ancillary probate proceedings in each state where you own real estate. A living trust avoids this complication entirely.
Many People Benefit from Both
Most comprehensive estate plans include both a living trust and a pour-over will. The living trust holds the majority of your assets and avoids probate. The pour-over will serves as a backup for assets not transferred into the trust and helps direct those assets into the trust after death.
This combination provides the benefits of both tools. You get probate avoidance and privacy from the living trust, plus a safety net for assets that were not transferred into the trust.
Work With a Syracuse Estate Planning Attorney Today
Estate planning decisions affect your family for years after you are gone. Understanding the difference between a living trust and a will helps you make informed choices that protect your assets and provide for your loved ones in the way you intend.
Frederick P. Davies and William P. Davies have guided Central New York families through the estate planning process since 1993. At Davies Law Firm, our estate planning attorneys handle trust creation, will preparation, and comprehensive planning for families throughout Syracuse, Onondaga County, and the surrounding region. We work with the Onondaga County Surrogate’s Court and understand New York estate law.
Call Davies Law Firm at (315) 472-6511 to schedule a telephone conference. Our offices serve families throughout Central New York, including Onondaga, Madison, Oneida, Cortland, Oswego, and Cayuga counties. We can review your situation, explain your options, and help you create an estate plan that truly fits your needs.
from Davies Law Firm https://davieslawfirm.com/living-trust-vs-will-comparison-new-york/
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