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A New York Estate Plan Must Consider Assets Held in a Totten Trust

Estate Planning in New York requires a review and understanding of all of a person’s assets and property interests. The New York Probate Lawyer Blog has previously discussed that a Last Will typically controls or directs the disposition of assets that are owned or held in a decedent’s name alone.

Other assets may pass from a decedent to a beneficiary by operation of law. For example, jointly owned property such as a bank account or real estate is automatically transferred to the surviving joint owner upon death. Similarly, named beneficiaries of life insurance and pension or retirement funds directly receive these assets when a decedent dies. Typically, a Last Will does not control the disposition of these funds without very explicit directions. Similar principals apply to a bank account known as a “Totten Trust”. Such bank accounts are usually created by a decedent and are titled in the name of the decedent “ITF” with the name of the beneficiary appearing thereafter. During his lifetime, a decedent would be completely free to add or subtract funds to the account and the “ITF” beneficiary would have no rights to any of the funds. However, upon the death of the account owner, all of the funds pass automatically to the “ITF” beneficiary. New York Estates, Powers and Trusts Law Section 7-5.2 sets forth many of the rules regarding these types of accounts.

New York Estate Lawyers are aware that an estate plan and creating a Last Will must take into consideration these accounts. The provisions of the Will may provide for property dispositions to persons other than those named as a beneficiary of a Totten Trust. Such an estate plan may not reflect a decedent’s actual intent and may also lead to Surrogate’s Court Litigation.

An example of the potential for contests regarding estate settlement and Totten Trusts was recently provided in a case decided by Manhattan Surrogate Nora Anderson on January 10, 2013 and reported in the New York Law Journal on January 28, 2013. In Matter of Wess, the decedent died leaving a Totten Trust in the name of her former lover in a sum of over $400,000. The Executor of the decedent’s Will claimed that the bank account containing these funds should not be found to be a Totten Trust passing directly to the friend. Instead, the Executor claimed that the bank funds should pass to the estate under the Will.

Based upon a review of the bank records, 1099 Forms, testimony of bank personnel and other evidence, the Court determined that there was a valid Totten Trust. Thus, the bank funds passed directly to the decedent’s friend and not pursuant to the Will provisions.

The Wess case demonstrates that Estate Planning in New York must include a careful review of how assets are owned. If Will provisions conflict with beneficiary designations on assets such as bank accounts, it is essential that a person understand where his assets will go upon death so that his intent is carried out. Moreover, if the intention is that a Totten Trust beneficiary receives an account and that a Will does not control this asset, it would be advantageous to confirm that the bank account name and bank records are absolutely clear as to this intention. In Wess, although the Totten Trust was upheld, the bank had lost the signature cards and destroyed other old papers associated with the original creation of the Totten Trust account.


New York City Trusts and Estates Lawyer Jules Martin Haas, Esq. has been representing clients in Probate and Estate Administration proceedings throughout the past 30 years. He is available to help residents in many areas, including Manhattan, Queens and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation or e-mail me at jules.haas@verizon.net.

Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate. If you wish to be placed on the e-newslist, simply e-mail me at jules.haas@verizon.net. You can cancel receiving the newsletter at anytime.

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