Will.com / Living trust / New York
NY · Revocable Living Trust
Make your New York living trust.
Skip probate, keep your estate private, and stay in control while you're alive. Legally valid in New York once signed under the New York signing rules below. Free to create, or add secure online document storage with the $29/year subscription.
New York living trust requirements
Special notes for New York
- Unless the settlor is also the sole trustee, at least one trustee must execute the trust instrument in the same manner the settlor does, which is either acknowledged before a notary or signed in the presence of two witnesses who affix their signatures. A settlor using the two-witness path does not need a notary for the trustee either (EPTL 7-1.17)
- Both execution paths are equally valid. Acknowledgment (notary) is typically more convenient
- Signing the trust does not fund it. A lifetime trust is valid only as to the assets actually transferred to it, and a recital of assignment in the trust instrument does not accomplish the transfer. Where the creator is the sole trustee, registrable assets such as real estate, stocks, bonds and bank and brokerage accounts need the deed recorded or the registration completed in the name of the trust or trustee, and every other asset needs a written assignment describing it with particularity (EPTL 7-1.18)
How it works
- 1
Answer a few questions
About your assets, trustees, and beneficiaries.
- 2
Download your trust
A complete, personalized revocable living trust, formatted for New York.
- 3
Sign and fund
Sign with acknowledgment before notary OR two witnesses. Fund the trust by transferring assets into its name.
Joint or individual
Married couples can make one joint New York living trust that both spouses sign, in place of an individual one. The questionnaire asks which you want, and Will.com generates either.
Signing a New York living trust
Trust must be in writing and either acknowledged before a notary OR signed before two witnesses (EPTL 7-1.17)
Tenancy by the entirety
New York recognizes tenancy by the entirety (Real property, and since January 1, 1996 also the shares of a cooperative apartment corporation allocated to an apartment or unit together with the appurtenant proprietary lease, which is unusual: most states limit the tenancy to real property, and a New York co-op is personal property. EPTL §6-2.2(b) and §6-2.2(c) make the tenancy the default for a disposition to a married couple unless the instrument expressly declares a joint tenancy or a tenancy in common, while §6-2.2(a) makes any other disposition to two or more persons a tenancy in common unless expressly declared a joint tenancy. Under §6-2.2(d), grantees of real property, or of cooperative apartment shares and the appurtenant proprietary lease on or after January 1, 1996, who are described in the disposition as husband and wife, spouses, husbands, or wives but are not legally married to one another take a joint tenancy instead, unless the disposition expressly declares a tenancy in common.). It's a form of co-ownership available only to married couples. Neither spouse can convey or encumber the property acting alone, and at the first death it passes to the surviving spouse by survivorship, outside probate. Whether it also puts the property beyond the reach of a creditor of one spouse alone is a separate question the states answer differently, so confirm what the tenancy does in New York before relying on it as creditor protection. When you transfer such property into a revocable trust, you may lose whatever entireties protection it carries unless your trust is drafted to preserve it.
Funding New York real estate into the trust
To transfer New York real estate into your trust, you sign a new deed conveying the property from yourself to yourself as trustee, then record the deed with the County Clerk of the county where the property is located (in a county that has a register, such as the New York City counties served by the City Register, the register is the recording officer instead; N.Y. Real Prop. Law §§290, 291). The trust does not control real estate unless the deed transfer is recorded.
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