A Guide to Understanding Trusts in New York

January 31, 2024

Creating a trust is a powerful and versatile tool for managing and distributing assets, offering individuals in New York a flexible way to protect their wealth and provide for their loved ones. In this brief guide, our Long Island trust lawyer will explore the key aspects of trusts in New York, covering their types, benefits, and the legal considerations of which individuals should be aware.

What is a Trust?

A trust is a legal entity that holds and manages assets for the benefit of one or more individuals or organizations, known as beneficiaries. The person who creates the trust is called the grantor, and the individual responsible for managing the trust is the trustee. Trusts can be established during the grantor’s lifetime (living trusts) or through their will (testamentary trusts).

Types of Trusts in Long Island and Elsewhere in New York

Revocable Living Trusts: These trusts can be altered or revoked by the grantor during their lifetime. They are often used to avoid probate and provide a seamless transition of assets upon the grantor’s death.

Irrevocable Trusts: Once established, these trusts generally cannot be modified or revoked without the consent of the beneficiaries. They offer potential tax benefits and asset protection.

Testamentary Trusts: Created through a will, these trusts only take effect upon the death of the grantor. They are often used to provide for minor children or individuals with specific needs.

Charitable Trusts: Designed to benefit a charitable organization, these trusts can provide income to the charity or retain assets for a specific period before donating them.

Special Needs Trusts: Intended to benefit individuals with disabilities, these trusts can provide for the supplemental needs of the beneficiary without jeopardizing government assistance programs.

Medicaid Asset Protection Trusts: These irrevocable trusts are designed to protect assets from being counted for Medicaid eligibility purposes.

Legal Considerations When Creating a Trust in New York 

To create a valid trust in New York, the document must clearly express the grantor’s intention to create a trust, identify the trust property, name the beneficiaries, and appoint a trustee.


The grantor must have the mental capacity to understand the nature and consequences of creating a trust. If questions arise about capacity, it could lead to legal challenges.

Choice of Trustee: 

The trustee plays a crucial role in managing the trust. It can be an individual, a professional trustee, or a combination of both. It’s essential to choose someone with the skills to handle the responsibilities.

Funding the Trust: 

To be effective, a trust must be funded with assets. This involves transferring ownership of assets from the grantor to the trust, ensuring they are held and managed according to the trust terms.

The Benefits of Establishing a Trust

There are several benefits for creating a trust in New York:

  • Probate Avoidance: Assets held in a trust generally do not go through the probate process, allowing for a quicker and more private distribution of assets.
  • Privacy: Unlike probate, which is a public process, trusts provide a higher level of privacy as their details are not part of the public record.
  • Asset Protection: Irrevocable trusts can shield assets from creditors and legal judgments, offering an added layer of protection.
  • Control over Distribution: Trusts allow grantors to specify how and when assets are distributed to beneficiaries, providing control beyond the grantor’s lifetime.
  • Tax Planning: Certain trusts, such as irrevocable life insurance trusts (ILITs) and generation-skipping trusts (GSTs), can help minimize estate taxes.

Trust Administration in New York

Trustees are individuals who have fiduciary responsibilities to act in the best interests of the beneficiaries. Their duties include managing trust assets, making distributions, and keeping accurate records. Trustees must provide periodic reports to beneficiaries that detail the trust’s financial activity and administration. Transparency is crucial in maintaining trust among beneficiaries.

It is important to note that trusts may terminate upon the occurrence of specific events, such as the death of the last beneficiary or the fulfillment of the trust’s purpose. The trust document typically outlines the conditions for termination; however, if you have questions or concerns, speak with our Long Island trust lawyer right away.

A Note on Dispute Resolution: 

Disputes may arise among beneficiaries or between beneficiaries and the trustee. New York provides mechanisms for resolving such disputes, including mediation and, if necessary, litigation.

Legal Challenges and Trust Litigation

  • Lack of Capacity: If the grantor lacked mental capacity when creating the trust, it may be challenged in court.
  • Undue Influence: If someone exerted improper influence over the grantor during the creation of the trust, it could be contested on grounds of undue influence.
  • Breach of Fiduciary Duty: Beneficiaries may file a lawsuit if they believe the trustee is not fulfilling their duties or is acting against the beneficiaries’ interests.
  • Forgery or Fraud: Trust documents may be challenged if there is evidence of forgery or fraud.

Updating and Modifying Trusts

Grantors can make changes to a revocable living trust by executing amendments. Irrevocable trusts may have provisions allowing modifications under specific circumstances.

Decanting: New York law allows the transfer of assets from one irrevocable trust to another, a process known as “decanting,” under certain conditions.

Judicial Modification: In some cases, the court may approve modifications to a trust if it is in the best interests of the beneficiaries and aligns with the grantor’s intentions.

Common Misconceptions about Trusts

1. Trusts are only for the wealthy

Trusts can benefit individuals at various income levels, providing solutions for specific needs such as protecting assets, providing for minor children, or ensuring privacy.

2. Once created, a trust is set in stone

Depending on the type of trust, modifications, and amendments may be possible to adapt to changing circumstances.

3. Trusts are only for older individuals

Individuals of all ages can benefit from trusts, whether for estate planning, asset protection, or providing for loved ones.

Speak With a Long Island Trust Lawyer Today to Learn More About Your Options

Whether for probate avoidance, asset protection, or ensuring the well-being of loved ones, trusts provide a flexible and powerful tool. While creating a trust involves legal complexities, our Long Island trust lawyer will work with you to ensure that the trust aligns with your goals and complies with New York state laws. Reach out to us today to discuss your specific situation.