For most New Yorkers, the honest answer is: a revocable living trust if your goal is to avoid probate, keep your affairs private, and plan for incapacity — and an irrevocable trust if your goal is to reduce estate tax, protect assets from creditors, or qualify for Medicaid down the road. The two tools solve different problems. A revocable trust keeps you in full control but leaves your assets in your taxable estate. An irrevocable trust gives up control in exchange for tax and protection benefits. Many New York families end up using both. Below is a practical, checklist-style guide to deciding which one you actually need — and the next steps to take once you do.
Both trust types in New York are governed by the Estates, Powers and Trusts Law (EPTL) Article 7, which sets the rules for how trusts are created, funded, and administered.
The Core Difference: Control vs. Benefits
A revocable living trust can be amended or revoked by you (the grantor) at any time while you are alive and competent. You keep total control. Because you keep that control, the law still treats the assets as yours — so a revocable trust does not reduce your estate tax and does not shield assets from your creditors or from Medicaid’s reach.
An irrevocable trust generally cannot be amended or revoked once created. You give up direct control, and that surrender of control is exactly what unlocks the benefits: assets properly transferred to a well-drafted irrevocable trust can be removed from your taxable estate, protected from future creditors, and — after the look-back period — excluded when New York Medicaid counts your resources.
Side-by-Side Comparison
| Feature | Revocable Living Trust | Irrevocable Trust |
|---|---|---|
| Can you change or revoke it? | Yes, anytime while competent | Generally no |
| Avoids probate? | Yes | Yes |
| Provides privacy? | Yes | Yes |
| Manages incapacity? | Yes (successor trustee steps in) | Yes |
| Reduces NY estate tax? | No | Yes, if properly structured |
| Asset / creditor protection? | No | Yes |
| Medicaid planning? | No | Yes (subject to 5-year look-back) |
| Who controls the assets? | You | An independent trustee |
Learn more on our Trusts Overview page, which explains how each trust fits into a complete New York estate plan.
When a Revocable Living Trust Is the Right Choice
Choose a revocable living trust if you primarily want to:
- Avoid probate. In New York, a will must be filed and probated in the Surrogate’s Court — a public, often slow process. A funded trust passes assets directly to beneficiaries without court involvement.
- Keep your affairs private. A probated will becomes a public record. A trust does not.
- Plan for incapacity. If you become unable to manage your finances, your named successor trustee takes over immediately — no guardianship proceeding required.
- Retain full control of your assets during your lifetime.
If estate tax and Medicaid are not concerns for you, a revocable trust often delivers the most flexibility. Explore details on our Revocable Living Trust page.
When an Irrevocable Trust Is the Right Choice
Choose an irrevocable trust if you need to:
- Reduce New York estate tax. For 2026, New York’s basic exclusion amount is $7,350,000. New York also has a notorious “cliff”: estates valued above 105% of the exclusion — $7,717,500 — lose the entire exemption, not just the excess. Families near that threshold often use irrevocable trusts to keep their taxable estate below the cliff.
- Protect assets from future lawsuits, creditors, or long-term-care costs.
- Plan for Medicaid. Assets in a properly structured irrevocable trust can be excluded from Medicaid’s resource count, but only after New York’s five-year look-back period. The clock starts when the transfer is made, so timing matters enormously.
See our Irrevocable Trust page for how these are structured under New York law.
A Note on Special Needs
If you are providing for a disabled loved one, neither standard trust may be the right fit. A Supplemental (Special) Needs Trust under EPTL 7-1.12 lets you hold assets for a disabled beneficiary without disqualifying them from means-tested benefits like Medicaid and SSI. This is a specialized irrevocable structure worth discussing on our Special Needs Trust page.
Don’t Forget the Trustee’s Duties
Whichever trust you choose, the trustee carries serious legal obligations under New York law:
- Prudent-investor standard (EPTL Article 11-A) — invest trust assets prudently and diversify.
- Duty of loyalty — act solely in the beneficiaries’ interest.
- Duty to account — keep records and report to beneficiaries.
New York’s SCPA and EPTL also set out statutory commission schedules that govern how a trustee is compensated. Sound trustee selection and administration are as important as the trust document itself.
Your Practical Next-Steps Checklist
Use this checklist to move from “thinking about it” to “done”:
- Clarify your top goal. Probate avoidance and privacy → lean revocable. Estate tax, asset protection, or Medicaid → lean irrevocable.
- Estimate your taxable estate. Add up real estate, accounts, life insurance, and business interests. If you are anywhere near $7.35M, the New York cliff makes professional planning essential.
- Consider your timeline. Medicaid planning works best started early because of the five-year look-back.
- Identify your people. Choose a successor trustee and beneficiaries you trust.
- Compare a will against a trust. Read our Trust vs. Will page to understand probate exposure.
- Draft with a New York attorney. EPTL formalities are strict; a defective trust can fail.
- Fund the trust. An unfunded trust is just paper — title your assets into it.
- Plan for administration. Know how the trust will be run after you’re gone.
Frequently Asked Questions
Can I have both a revocable and an irrevocable trust?
Yes. Many New York families use a revocable trust for probate avoidance and flexibility, plus an irrevocable trust for estate-tax or Medicaid planning. The two work together.
Does a revocable trust save estate taxes in New York?
No. Because you retain control, the assets stay in your taxable estate. Only a properly structured irrevocable trust can reduce New York estate tax.
What is the New York estate tax “cliff”?
For 2026, the basic exclusion is $7,350,000. If your estate exceeds 105% of that figure — $7,717,500 — you lose the entire exemption, not just the amount over the limit.
How long is the Medicaid look-back for an irrevocable trust?
Five years. Assets transferred to a qualifying irrevocable trust are generally protected only after that period passes, so early planning is critical.
Talk to a New York Trusts Attorney
Choosing between a revocable and irrevocable trust is one of the most consequential estate-planning decisions you’ll make — and the New York estate-tax cliff and Medicaid look-back leave little room for error. Russel Morgan, Esq. and the team at Morgan Legal Group help New York families across the state design, fund, and administer the right trust for their goals.
Schedule a consultation today: https://calendly.com/russel-morgan/30min
Further reading from Morgan Legal Group: how trusts work in New York.