New York Probate Lawyer Blog
One of the most important aspects in the area of New York Trusts and Estates is estate planning. Putting together a comprehensive plan requires a lot of time and effort. There are many aspects to consider. Of course, the main foundation is a Last Will and Testament. This document contains provisions naming beneficiaries and describing the various assets or shares of an estate which are being distributed. A Will may contain specific or general bequests and designates executors.
What Documents Are Included in an Estate Plan?
Other documents which may comprise an estate plan include:
- A Durable Power of Attorney
- A Health Care Proxy
- A Revocable or Lifetime Trust
A Health Care Proxy and Power of Attorney each designates certain agents who can make health care or property decisions for a person during their lifetime.
A Revocable or Lifetime Trust deals with the disposition of assets both before and after death.
The New York Probate Lawyer Blog has published many articles concerning these various documents and planning an estate.
What Is a Revocable or Lifetime Trust?
An interesting aspect of a Revocable or Lifetime Trust is that it deals with asset control both before and after death.
Prior to death the creator or Grantor may control the assets in the Trust and receive income and dispose of items at their discretion.
However, most of these Trusts become irrevocable at death and the Trustee is usually directed to pay out the Trust assets in the same manner as a Will.
Can a Revocable Trust Avoid Probate in New York?
In fact, one of the reasons these Trusts are created is to have a person’s assets transferred into the Trust during life and to avoid the probate process for payment after death.
Sometimes all of a person’s assets are transferred into the Trust.
The provisions in a Will usually state that the probate assets are to be paid to the Trustee of the Trust and disposed of according to the terms of the Trust.
This type of Will is known as a pour-over Will since the probate assets pour over or are transferred into the Trust for ultimate disposition.
Typically, a Will and Revocable Trust are created at the same time so that their reciprocal terms work together.
How Are a Will and Trust Executed in New York?
The execution or signing of a Will must be done with witnesses according to Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills: formal requirements.”
The execution of a Trust requires:
- A signature of the Grantor
- A trustee
- A notary acknowledgment
This is pursuant to EPTL Section 7-1.17 entitled “Execution, amendment and revocation of lifetime trusts.”
Does a Revocable Trust Need Probate in New York?
After a person dies, a Will must be validated by going through probate in the Surrogate’s Court.
When the Court finds that the Will is valid and executed according to the statute, the Will is admitted to probate and an executor is appointed and receives Letters Testamentary.
Unlike a Will, a Revocable or Lifetime Trust does not need Court approval.
Its terms are effective upon it being duly executed and assets being transferred.
What Happens If an Original Trust Cannot Be Located?
However, sometimes, a duly executed original of a Trust cannot be located.
People tend to safe keep a Will and often forget about a Trust.
Interestingly, the Surrogate’s Court Procedure Act has a provision specifying how to probate a Lost Will in SCPA 1407 entitled “Proof of Lost or Destroyed Will.”
Unfortunately, at present, the estate laws do not have a similar statute dealing with a lost Trust.
This can be very problematic when a person dies and:
- A Will directs that probate assets are to be paid to a Trust; or
- Assets such as real estate and financial accounts are already titled in the name of a Trust.
Can a Lost Trust Be Established as Valid and Effective in New York?
A recent case decided by Nassau Surrogate David P. Sullivan entitled Matter of Helen E. Pinnola, decided on July 9, 2026, presented the Court with a petition to restate a lost Trust.
No signed copy of the Trust could be located.
However, an unsigned copy of the Trust was located and the attorney who prepared and supervised the execution of the Trust was able to identify and authenticate the unsigned document.
Matter of Helen E. Pinnola
In Matter of Helen E. Pinnola:
- No signed copy of the Trust could be located.
- An unsigned copy of the Trust was located.
- The attorney who prepared and supervised the execution of the Trust was able to identify and authenticate the unsigned document.
- The Court granted the petition.
The Court used prior case law, SCPA 1407 and proposed legislation as a basis to allow the relief.
Why Is a Lost Trust Problematic?
As can be seen from Pinnola, New York trust and estate cases can be complex.
The absence of an original signed Trust can create significant problems when a person dies, particularly when a Will directs that probate assets are to be paid to a Trust or assets such as real estate and financial accounts are already titled in the name of a Trust.
Frequently Asked Questions About Lost Trusts in New York
Does a Revocable Living Trust need to be probated in New York?
Unlike a Will, a Revocable or Lifetime Trust does not need Court approval. Its terms are effective upon it being duly executed and assets being transferred.
What happens if a signed Trust cannot be found after death?
Sometimes, a duly executed original of a Trust cannot be located. As demonstrated by Matter of Helen E. Pinnola, a Surrogate’s Court may consider evidence concerning a lost Trust.
Is there a New York statute for a lost Trust?
The Surrogate’s Court Procedure Act has a provision specifying how to probate a Lost Will in SCPA 1407 entitled “Proof of Lost or Destroyed Will.” Unfortunately, at present, the estate laws do not have a similar statute dealing with a lost Trust.
What is a pour-over Will?
A pour-over Will is a Will in which the probate assets are to be paid to the Trustee of the Trust and disposed of according to the terms of the Trust.
What is the difference between a Will and a Revocable Trust?
After a person dies, a Will must be validated by going through probate in the Surrogate’s Court. Unlike a Will, a Revocable or Lifetime Trust does not need Court approval. Its terms are effective upon it being duly executed and assets being transferred.
Do You Have a Question Regarding an Estate or Trust Issue?
As can be seen from Pinnola, New York trust and estate cases can be complex.
I have been representing clients in estate and trust matters in New York City and surrounding communities and the Surrogate’s Court for over 40 years.
Do you have a question regarding an estate or trust issue?
Call me now for a free confidential review.
We provide reasonable and flexible fee arrangements and personal representation.
Contact New York Trusts and Estates Attorney Jules Martin Haas
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to:
- Guardianship
- Probate
- Estate settlement
- Trusts
- Estate matters
throughout New York City including:
- Bronx
- Queens
- Brooklyn
- Manhattan
- Nassau County
- Suffolk County
Call (212) 355-2575 for an initial free consultation.