As a New York State Remote Online Notary Public, I notarize many trusts every year – both the kind you can change and the kind you cannot. I see people get confused by this choice weekly. My goal here is to clear up that confusion, explain exactly what sets these two trust types apart, and show you how remote online notarization handles both seamlessly.
What Is a Trust?
A trust is a legal arrangement where a grantor (you, the creator) transfers ownership of assets to a trustee who manages those assets on behalf of one or more beneficiaries (your children, spouse, charity, or anyone you choose). The trust document serves as the rulebook that spells out what happens to every asset inside it – when, how, and under what conditions each beneficiary receives their share.
Instead of your assets going through a public court process after you die (called probate), they already live inside a container with instructions attached. The trustee simply follows those instructions. Trusts are one of the most fundamental building blocks of estate planning in New York and across the country.
Revocable Living Trusts: Flexibility at Its Finest
What Is a Revocable Trust?
A revocable living trust is the most common trust type in New York estate planning. The core feature is flexibility: you can change the terms, add or remove assets, swap beneficiaries, or even dissolve the entire trust at any point during your lifetime. You created it and you keep full control.
Because you retain control, the trust is still considered part of your estate for tax purposes. Assets inside count toward both federal and New York State estate tax calculations. But there are meaningful benefits beyond the numbers.
Why Choose a Revocable Trust?
Probate avoidance. This is the single biggest reason New Yorkers create revocable trusts. Probate in New York can take many months and cost thousands in court fees, attorney time, and administrative expenses. Assets held in a revocable trust bypass the entire probate process entirely.
Incapacity planning. What happens if a medical event leaves you unable to manage your finances? With a revocable trust, your successor trustee steps in immediately without any court involvement or guardianship proceeding.
Multi-state property. Do you own property in more than one state? A single revocable trust covers assets everywhere. Without it, you could face separate probate proceedings in every state where you own real estate.
Privacy. Trust documents are private. Unlike a will that becomes public record in probate, nobody can look up your asset distribution plan or the value of what you passed on.
Execution Requirements in New York
Under New York Estates, Powers and Trusts Law Section 7-1.17, every lifetime trust must be in writing and executed in one of two ways:
- Acknowledged by the grantor in the manner required for recording a conveyance of real property – which means notarization
- Executed in the presence of two disinterested witnesses who are not named as trustees, successor trustees, or beneficiaries
The acknowledgment route with notarization is by far the preferred method, and it works perfectly for remote online notarization. I use it for every trust I notarize.
Who Is a Revocable Trust Best For?
A revocable trust suits most New York residents. It works well for homeowners, families with minor children, couples with multi-state property, and anyone who wants a straightforward estate plan they can adjust as life changes. If your estate is under the current federal exemption of roughly $13.99 million per person and you do not have specific asset protection goals, a revocable trust is almost certainly your best starting point.
Irrevocable Trusts: Locking in Protection
What Is an Irrevocable Trust?
An irrevocable trust is the kind you cannot change once you create it. You transfer assets into it and give up ownership and control. The trust becomes a separate legal entity and the terms stick unless you have a provision allowing changes under very specific conditions.
Think of it as sending a gift to yourself on your own behalf. You can still benefit from the assets in many ways, but legally they are no longer yours. In exchange for giving up control, you gain several powerful benefits.
Why Choose an Irrevocable Trust?
Asset protection. Assets placed inside an irrevocable trust are separated from you. Creditors generally cannot reach them and lawsuits do not affect them. If you run a small business, have a profession with high liability exposure, or simply want to protect your family’s inheritance, this matters enormously.
Estate tax reduction. When assets leave your estate and go into an irrevocable trust, they no longer count toward your estate value for tax purposes. The federal estate tax exemption sits at $13.99 million per person for 2025, and New York has its own exemption around $6.8 million and climbing. If your estate approaches those thresholds, an irrevocable trust removes assets from the taxable calculation entirely.
Medicaid planning. Long-term care in New York runs $8,000 to $12,000 per month depending on where you live. A Medicaid Asset Protection Trust – a type of irrevocable trust – shields your assets from the Medicaid counting process. There is a five-year lookback window, so the earlier you set one up, the better.
Special needs planning. An irrevocable trust can hold inherited funds for a child or family member with a disability, preserving eligibility for benefits like SSI and Medicaid while improving their quality of life.
Common Types in New York
- Medicaid Asset Protection Trust: Protects your home and savings from nursing home costs
- Creditors Trust: Flexible irrevocable trust allowing beneficiary and trustee changes under certain conditions
- Bypass Trust (A Trust): Removes assets from the surviving spouse’s estate to use both spouses’ federal exemptions
- Trust for a Loved One: Sets aside funds with a named caretaker managing distributions for a beneficiary with special needs
Who Is an Irrevocable Trust Best For?
An irrevocable trust makes sense when you have specific goals: protecting assets from creditors or nursing home costs, reducing estate taxes, planning for a beneficiary with special needs, or preserving wealth across generations. The tradeoff is that you give up flexibility. Choose wisely.
Side-by-Side Comparison
Control: With a revocable trust, you remain in full control and can make changes anytime. With an irrevocable trust, you transfer control to the trustee. Changes require trustee agreement or a court order.
Asset protection: Revocable trusts do not protect against creditors since you still own the assets. Irrevocable trusts separate assets from your estate, offering genuine protection.
Estate taxes: Revocable trusts keep assets in your taxable estate. Irrevocable trusts remove them entirely.
Income taxes: Income from revocable trust assets reports on your personal tax return. Irrevocable trusts may generate their own returns depending on structure.
Medicaid eligibility: Assets in a revocable trust count toward Medicaid eligibility. Assets in an irrevocable trust do not, assuming you set it up at least five years before applying.
Cost of creation: Revocable trusts are simpler and generally cost less. Irrevocable trusts involve complex legal language and often require ongoing trustee management.
Probate avoidance: Both types bypass probate. This is one area where they are equal.
The RON Workflow for Notarizing Both Types
Remote Online Notarization has been legal in New York since January 2023, and it has transformed how trusts get executed. Whether you are dealing with a revocable or irrevocable trust, the RON workflow follows the same proven steps.
Step One: Document Preparation
Before we schedule a session, I confirm that your trust document is fully drafted and ready for signing. Your estate planning attorney typically handles this, though some clients use trusted online legal services. The document must include a proper notarial acknowledgment block referencing New York State execution requirements.
Step Two: Identity Verification
During our video session, I verify your identity through credential analysis of your government-issued photo ID and may ask knowledge-based identity questions. This meets New York’s requirement for sound identity proofing during remote sessions.
Step Three: The Video Session
We meet through live two-way audio-video on a certified RON platform. I can see you, you can see me, and we talk in real time. The session is recorded and retained for at least ten years under New York Executive Law Section 135-C. Both spouses must appear for a joint trust.
Step Four: The Acknowledgment
I ask you to state that you executed the trust document freely and voluntarily. You sign the document, and I record the acknowledgment in my electronic journal, which is mandatory for all notarial acts under New York law.
Step Five: The Electronic Seal
I apply my electronic seal, which embeds a digital certificate verifying my identity as a commissioned New York Notary Public and making the document tamper-evident. The seal includes my name, title, county of commission, expiration date, and official ID number.
Step Six: Delivery
I deliver the notarized document back to you electronically. If your trust involves real estate that needs recording at the County Clerk, a Certificate of Authenticity can be attached to printed copies for recording purposes.
Special RON Considerations
- Trustee acknowledgments: If you have a co-trustee who is not also the grantor, they may need to acknowledge acceptance in the same session
- Joint trusts: Both spouses sign. Sequential or same-session signatures are both accepted depending on attorney preference
- Mental capacity: You must be mentally competent at signing. A doctor’s letter is recommended if cognitive decline is possible – this prevents future challenges from family members
- Amendments: Both trust amendments and restatements require notarization with the same formalities as the original trust. RON handles these easily
Fees
New York caps the notarial fee at $25 per act for remote online notarization. This covers the full session including video, identity verification, acknowledgment, eSeal application, and document delivery.
Practical Tips for Trust Owners
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Fund your trust. Signing a trust is only the first step. Transfer assets into it: retitle bank accounts, deed real estate, update investment beneficiary designations, and transfer vehicle titles. An unfunded trust does nothing.
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Keep multiple copies. I recommend at least three: an original in a fireproof safe, a copy with your attorney, and a copy with your successor trustee.
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Review annually. Life changes. Marriage, children, property sales – all may require amendments. Schedule annual reviews with your attorney and get amended documents properly notarized.
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Name multiple successor trustees. Your first choice may be unavailable. Backup trustees prevent delays and court intervention.
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Tell your successor trustee. Make sure they know they are named, know where the document is, and understand their responsibilities. A surprise appointment is stressful enough without confusion.
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Watch for due-on-sale triggers. Modern mortgages typically include an accordion clause allowing property transfer into your own revocable trust. Still, verify with your lender to be certain.
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Plan irrevocable trusts early. The five-year lookback period for Medicaid is non-negotiable, and estate tax exemptions shift with inflation. Early planning prevents costly last-minute scrambles.
Frequently Asked Questions
Q: Do both spouses need to notarize a joint revocable trust? A: Yes. Both must appear individually and acknowledge their signatures. This can happen in a single session or sequentially. Each acknowledgment is a separate notarial act.
Q: Can I notarize my trust remotely if I live outside New York? A: Absolutely. The notary must be physically in New York, but you can sign from anywhere in the country. I regularly notarize trusts for clients at vacation homes or visiting family in other states.
Q: What if I need to change my revocable trust after signing? A: You can amend specific provisions with a notarized amendment document, or do a full restatement rewriting the entire trust while preserving the original creation date. Both require proper notarization and RON handles both easily.
Q: Can an irrevocable trust ever be changed? A: It is more involved but not impossible. You can change it through agreement of all parties – grantor, trustee, and beneficiaries – or through a court petition under specific circumstances. Some irrevocable trusts include built-in provisions allowing designated beneficiaries to remove or replace the trustee.
Q: Does a revocable trust protect from Medicaid or creditors? A: No. Because you retain control, Medicaid and creditors can still reach the assets. An irrevocable trust is what you need for asset protection.
Q: Do I need an attorney to create a trust? A: Not technically, but I highly recommend it. Trusts involve complex legal language covering asset distribution, trustee powers, beneficiary rights, and tax considerations. A well-drafted trust from an experienced attorney saves headaches later.
Q: How long does the RON session take? A: A standard trust notarization takes about 15 to 30 minutes, including identity verification, acknowledgment, and document delivery. Joint trusts may take longer depending on whether spouses appear together or sequentially.
Q: What if my elderly parent struggles with video technology? A: The RON session is simply a video call. A caregiver or adult child can help set up the device in advance. During the session, I take things at a comfortable pace. Many of my clients are in their seventies and eighties, and I never have issues.
Q: What is the difference between a trust and a will? A: A will takes effect only after death and goes through probate court. A trust takes effect during your lifetime and manages assets whether you are alive or deceased. Many people use both: a pour-over will catches unfunded assets, while the trust handles the primary estate distribution.
Q: Are there ongoing costs for maintaining a trust? A: A revocable trust has minimal ongoing costs – you simply keep the document safe and update it when needed. An irrevocable trust may have ongoing costs for tax filings, trustee accounting, and professional trustee services. Discuss these with your attorney before deciding.
How to Choose Between the Two
Here is my honest recommendation, shared openly with every client: most New Yorkers benefit most from starting with a revocable living trust. It is straightforward, flexible, affordable, and handles the core goals of probate avoidance, incapacity planning, and privacy.
An irrevocable trust makes sense when you have specific financial goals. Do you own multiple properties? Run a business? Want to shelter assets from potential nursing home costs? Have a family member with special needs relying on income-limited benefits? Then an irrevocable trust deserves serious attention.
The good news is that both can coexist. Many comprehensive estate plans use a revocable trust as the main structure and one or more irrevocable trusts for specific assets or purposes. Your estate planning attorney can design a plan using the right tool for each goal. And whenever documents need notarization, my RON workflow handles everything efficiently and completely from your home.
Final Thoughts
Trusts are one of the most powerful tools in estate planning, but only when you choose the right kind for your situation. Revocable trusts offer control and flexibility. Irrevocable trusts offer protection and tax advantages. Both bypass probate. Both handle smoothly through remote online notarization.
Do not leave estate planning to the last minute. Sit down with an estate planning attorney, figure out which trust structure fits your goals, and let me handle the notarization piece. New York has made the process accessible and affordable through RON technology, and I am here to make your experience straightforward from the first scheduled session to the final signed document delivered to your inbox.
Disclaimer: This blog post provides general information about revocable and irrevocable trusts in New York State and does not constitute legal or financial advice. Trust laws change periodically, and your specific situation may require a tailored approach. Please consult a qualified estate planning attorney for personalized guidance before making estate planning decisions.