One of the most essential aspects of every trust and estate is the fiduciary who is in charge of its affairs. The fiduciary may be an Executor, Administrator or Trustee depending upon the type of situation. However, in all cases the fiduciary has many powers and obligations.
Estates, Powers and Trusts Law (EPTL) Section 11-1.1 entitled “Fiduciaries’ powers” provides a list of the powers that fiduciaries can exercise. For example, an Executor may need to: (i) take control over property; (ii) open a bank account; (iii) sell property; (iv) defend a lawsuit; (v) or commence a legal proceeding to protect the interests of a Trust or Estate. The New York Probate Lawyer Blog has discussed many situations regarding fiduciaries’ powers.
An Executor and Trustee also must be mindful concerning the terms of the Will or Trust that they are administering. These documents may provide specific directions or powers that the fiduciary must be aware of and adhere to. For example, a Will may direct that a fiduciary sell a certain asset and distribute the sales proceeds to a designated beneficiary.
In this regard, it is important that when a Will or Trust is created, the terms of the document are clear and unambiguous. Estate and Trust Attorneys are aware that the document should also contain the proper provisions to allow the fiduciary to carry out the intentions of the testator or creator. A recent Staten Island Estate case provides an insight into problems that can arise when a Trust does not have appropriate terms for a trustee to accomplish the desired task. Matter of Estate of Gaites was decided by Richmond Surrogate Robert Gigante on February 9, 2018. In Gaites, the decedent had left a Last Will in which he created a testamentary trust for his surviving spouse. The Trust terms allowed the spouse to receive annual withdrawals of principal. The problem encountered was that the only trustee appointed to administer the trust was the surviving spouse. In order to make principal distributions to the spouse, the Court noted that there needed to be an independent trustee.
After reviewing the various New York estate statutes and the intention of the decedent, the Court appointed the decedent’s son as a co-trustee so that the distributions could be made to the spouse by an independent person.
I have assisted many individuals with their Trusts and Estates issues. As can be seen from Gaites, it is important to make certain that the provisions in Estate Planning documents are complete and express the desires of the creator. If you have any questions regarding an Estate or Trust, call me now for a free review.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan 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.