New York Living Trust
The New York rules that shape the document: EPTL 7-1.17's acknowledgment-or-two-witnesses execution rule, EPTL 7-1.18's recorded-deed funding trap, and EPTL 5-1.1-A's testamentary-substitute elective share.
Find out where you stand in New York
DocDraft provides document preparation, not legal advice.
Introduction
A New York living trust is not valid unless it is executed in one of two ways: acknowledged in the manner required to record a deed, or signed in the presence of two witnesses who also sign the instrument (EPTL 7-1.17(a)). Only one method is required, not both, and New York applies the identical either/or rule to any later amendment or revocation. A living trust still only avoids New York probate for the assets you actually retitle into it: anything left titled in your own name goes through Surrogate's Court probate no matter what the trust document says, and EPTL 7-1.18 specifically warns that listing an asset on a funding schedule attached to the trust is not enough for real property, only a recorded deed transfers it. New York has never adopted the Uniform Trust Code; its trust law runs through EPTL Article 7.
Key Things to Know
- 1
New York's sharpest formality: EPTL 7-1.17(a) makes a lifetime trust void unless the settlor, and at least one trustee unless the settlor is sole trustee, executes it in ONE of two ways, acknowledgment in the manner required to record a deed, or signature in the presence of two witnesses who also sign, not both. The identical either/or rule governs any later amendment or revocation (EPTL 7-1.17(b)). Unlike an actual New York will, the witness route has no publication requirement and no 30-day signing window, so the common claim that a New York trust needs 'will formalities' overstates one route while understating the other.
- 2
New York's funding trap: EPTL 7-1.18 says a trust is valid as to an asset only to the extent it has actually been transferred, and reciting the asset as held by the trust in the instrument or on an attached schedule is not enough. For real property with the settlor as sole trustee, transfer means the deed is recorded (RPL 291) with the county clerk, or through ACRIS in New York City. A deed from the settlor to the settlor's own trust is exempt from the state transfer tax under Tax Law 1405(b)(4) and (b)(6), but Form TP-584 must still be filed with the deed within 15 days claiming the exemption.
- 3
New York's elective share reaches this trust. EPTL 5-1.1-A(a)(2) lets a surviving spouse claim the greater of a statutory $50,000 figure (confirm the current figure before relying on it, since the legislature can amend it) or one-third of the net estate, and clause (b)(1)(F) pulls the full value of an ordinary revocable trust into that calculation as a 'testamentary substitute' because the settlor retains lifetime enjoyment and the power to revoke. Funding this trust does not reduce a surviving spouse's elective-share base the way it might shrink a probate estate's visibility.
- 4
This revocable trust gives no creditor protection during the settlor's life. EPTL 7-3.1(a) voids a disposition in trust for the settlor's own use against that settlor's existing and future creditors, and New York has no self-settled asset-protection-trust statute. After death, SCPA 1802's seven-month (210-day) claims bar extends to a 'lifetime trustee' through SCPA 103(21) and (34), though the practical procedure for an un-petitioned trust to start that clock is not spelled out.
- 5
New York taxes estates that many other states leave untaxed, and does it with a cliff. Tax Law 952(c)(2)(B) sets the exclusion at a $5,000,000 base indexed for inflation since 2010; the Department of Taxation and Finance publishes $7,350,000 for dates of death in 2026, but confirm the current figure at tax.ny.gov before relying on it. Section 952(c)(1) denies the credit entirely, taxing the whole estate from dollar one, once the taxable estate exceeds 105% of the exclusion. This trust does not avoid the tax; its assets remain part of the taxable estate.
- 6
Whether moving a home into this trust costs the CPLR 5206 homestead exemption is unresolved. Confirm current figures before relying on them: the statutory amounts are $150,000 of equity in Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam counties, $125,000 in Dutchess, Albany, Columbia, Orange, Saratoga and Ulster counties, and $75,000 elsewhere, for an owner-occupied principal residence. No statute says whether a settlor who deeds the home into a revocable trust and keeps living there is still the 'owner' for this purpose; ask a New York attorney before relying on it.
- 7
New York has no certification-of-trust statute. Some secondary sources describe a nonexistent 'EPTL Article 7-A' certification provision; that article is only a proposed, never-enacted reform bill. A bank, brokerage, or title company may lawfully insist on the full trust instrument rather than accept a short certificate, as a matter of institutional policy rather than a codified right.
Key decisions before you file
Before you file a Living Trust in New York, a few decisions shape the document: which option to choose and what each one means. The Living Trust guide walks through them.
Open the Living Trust guideCustomize your Living Trust Template with DocDraft
New York Requirements for Living Trust
New York Execution: Acknowledgment or Two Witnesses
EPTL 7-1.17(a) makes a New York lifetime trust void unless the settlor, and at least one trustee unless the settlor is sole trustee, executes it either by acknowledgment in the manner required to record a deed, or by signature in the presence of two witnesses who also sign the instrument. Only one method is required, and the same standard governs any later amendment or revocation under 7-1.17(b).
New York Funding: Recorded Deed Required for Real Property
EPTL 7-1.18 provides that a trust is valid as to an asset only to the extent it has been transferred; reciting the asset in the instrument or a funding schedule is not a transfer. For real property with the settlor as sole trustee, transfer means the deed is recorded with the county clerk (RPL 291), or through ACRIS in New York City.
New York Transfer Tax Exemption and Form TP-584
A deed from a settlor to that settlor's own revocable trust is exempt from the state real estate transfer tax under Tax Law 1405(b)(4) and (b)(6), but Form TP-584 (Combined Real Estate Transfer Tax Return) must still be filed with the deed within 15 days, with the exemption clause checked in Part III.
New York Spousal Elective Share Reaches Trust Assets
EPTL 5-1.1-A(a)(2) gives a surviving spouse a right to the greater of a statutory $50,000 figure (confirm the current figure before relying on it) or one-third of the net estate, and clause (b)(1)(F) treats an ordinary revocable trust as a testamentary substitute whose full value is pulled into that calculation because the settlor retains lifetime enjoyment and a power to revoke.
New York No Certificate of Trust Statute
New York has no statute requiring a bank, brokerage, or title company to accept an abbreviated certification of trust in place of the full instrument. Acceptance of a private trustee's certificate is a matter of institutional policy, not a codified right.
New York Estate Tax Cliff
Tax Law 952(c)(2)(B) sets the estate tax exclusion at a $5,000,000 base indexed for inflation since 2010, published as $7,350,000 for 2026 deaths on tax.ny.gov; confirm the current figure before relying on it. Section 952(c)(1) denies the credit entirely once the taxable estate exceeds 105% of the exclusion, taxing the whole estate from dollar one.
New York No Self-Settled Asset Protection
EPTL 7-3.1(a) voids a disposition in trust for the settlor's own use against that settlor's existing and future creditors, so an ordinary revocable living trust gives no creditor protection during the settlor's life. New York has no self-settled asset-protection-trust statute.