SYRACUSE, NY – October 20, 2026 – Families in Central New York weighing how to structure their estate plans often face a fundamental choice between two commonly used tools: living trusts and testamentary trusts. Syracuse estate planning attorneys Frederick P. Davies and William P. Davies of Davies Law Firm (https://davieslawfirm.com/living-trust-vs-testamentary-trust-new-york/) have released guidance explaining how these two trust types differ in New York, including when each takes effect, how probate applies, and what each may cost. The central distinction, the attorneys note, comes down to timing and its effect on probate, privacy, control, and inheritance.

According to Syracuse estate planning attorneys Frederick P. Davies and William P. Davies, a living trust is created and takes effect during a person’s lifetime, while a testamentary trust is written into a will and only comes into existence after death. “The timing difference drives almost everything else,” explains William P. Davies. “It determines whether the estate avoids probate, whether the plan stays private, how much control a person keeps, and what the family ultimately inherits.”

Syracuse estate planning attorneys Frederick P. Davies and William P. Davies point out that a living trust begins working only once it is funded, meaning ownership of assets such as bank accounts, brokerage accounts, and real estate is transferred into the trust’s name. Under New York law, only assets actually held in the trust’s name are governed by its terms. A funded living trust also offers incapacity planning, allowing a named successor trustee to manage assets without court involvement if the creator becomes unable to do so.

A testamentary trust, by contrast, takes effect only after the will has been admitted to probate and the Surrogate’s Court authorizes the appropriate fiduciary or trustee. Until that happens, the trust does not exist and holds no assets. Davies notes that because the trust depends on probate, delays in the court process delay the trust, and a will must meet New York’s execution requirements under EPTL Section 3-2.1 to be valid.

One of the most significant practical differences involves probate itself. A properly funded living trust can help assets pass under the trust terms without Surrogate’s Court approval, while a testamentary trust requires probate before it can receive any assets. “Probate can involve court fees, attorney costs, delays, and public court records,” says Frederick P. Davies. “A properly funded living trust may help families avoid much of that, though a pour-over will can serve as a backup to direct any unfunded assets into the trust after death.”

Privacy is another area where the two structures diverge. A living trust is generally not filed with the court as part of probate, so its terms, beneficiaries, and asset details can remain outside the public record. A testamentary trust, however, is created through a will, and once the will is admitted to Surrogate’s Court, those provisions become part of the probate record. For blended families, business owners, and others concerned about confidentiality, the firm notes this distinction can be meaningful.

The attorneys also address the question of control. A revocable living trust can be amended, restated, or revoked at any time while the creator is alive, with the trustor often serving as their own trustee. A testamentary trust offers no such flexibility once it activates, because its terms are fixed after the creator’s death. Attorney Davies adds that not all living trusts are revocable, observing that under EPTL Section 7-1.16, a lifetime trust is irrevocable unless it expressly states otherwise.

Cost considerations often come down to when a person prefers to spend the money. A living trust typically involves higher upfront costs due to detailed drafting and the work of retitling accounts and preparing deeds, while a will with a testamentary trust may cost less initially but can trigger court filing fees and administrative expenses through probate later. The firm emphasizes that the more economical option depends on the value and complexity of the estate, the types of assets involved, and long-term planning goals.

Estate planning attorney William P. Davies notes that each structure suits different priorities. Living trusts often fit individuals who own multiple properties or real estate in more than one state, value privacy, or want incapacity protection. Testamentary trusts may appeal to those seeking simpler upfront planning, parents wanting Surrogate’s Court oversight of a child’s inheritance, or families establishing a supplemental needs trust for a beneficiary with disabilities.

For individuals and families deciding how to structure their estate plans, consulting a knowledgeable estate planning attorney may help clarify which approach best reflects their assets, family circumstances, and goals for probate, privacy, and control. The firm serves families throughout Onondaga County and the wider Central New York region.

About Davies Law Firm:

Davies Law Firm is a Syracuse-based law firm focused on estate planning, living trusts, probate, long-term care, Medicaid, and taxation. Founded by Frederick P. Davies and joined by William P. Davies, the firm serves families across Onondaga County and Central New York from its office at 210 E Fayette St in Syracuse. For consultations, call (315) 472-6511.

 

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Company Name: Davies Law Firm
Contact Person: Frederick P. Davies
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Phone: (315) 472-6511
Address:210 E Fayette St, Syracuse, NY 13202
City: Syracuse
State: New York
Country: United States
Website: https://davieslawfirm.com/