There are a number of different types of papers and considerations that are involved in estate planning. It is important that the documents appear clearly and express a person’s directions and intentions. An estate plan can include a Last Will and a Living Trust. Also, advance directives such as a health care proxy, living will and power of attorney can be put into effect.
Planning documents often include the use of a trust. A trust can be created in a Last Will. This type of trust is a testamentary trust. When a Will is admitted to probate, this trust becomes effective and the Surrogate’s Court appoints a testamentary trustee.
A Living Trust, which is also known as a Grantor Trust, is typically created during a person’s lifetime. The creator’s assets are usually transferred into the trust. The trust is revocable during the creator’s lifetime. However, after death, the trust provisions are like a Last Will and describe the manner in which the assets are to be distributed to the beneficiaries. The New York Probate Lawyer Blog has numerous posts discussing estate planning and the use of trusts.
When a person creates a Last Will or a trust, it is important to give great consideration to the persons appointed as Executors and Trustees. These fiduciaries are the persons who will be responsible for safeguarding and managing the creator’s assets and making distributions for the benefit of beneficiaries. The persons selected as executors and trustees, as well as their successors, can have an impact upon the beneficiaries. This is due to the fact, especially with trustees, that the fiduciary may have a long term relationship with the beneficiary and need to make ongoing decisions regarding the payment of a beneficiary’s share.
A recent case decided by Manhattan Surrogate Nora Anderson dated September 27, 2017 entitled Matter of Opinsky, is an example of a trust creator providing for specific directions regarding the appointment of a successor fiduciary. In Opinsky, the creator had made an inter vivos (i.e. life-time) trust. The initial individual trustee had died and the sole remaining trustee was the Bank of America N.A. The trust value was under $500,000.00. The trust provisions required the appointment of a corporate trustee if there was a need for a successor. When Bank of America decided to resign, the lifetime beneficiary of the trust asked the Court to appoint an individual trustee instead of a corporate trustee. The reason advanced for the change was due to the circumstance that corporate trustees typically require much larger trust values before they will agree to accept an appointment.
The Court declined to allow the requested change since the lifetime beneficiary did not demonstrate that he was unable to find a suitable corporate trustee to serve. The Opinsky case is important since it shows that a creator needs to consider the long-term impact and consequences of the nomination of a trustee. This is true with regard to the selection of any fiduciary.
I have represented numerous individuals regarding their estate plan and the selection of trustees and executors. If you have an issue regarding an estate or a trust or a Last Will, call me now for a free discussion.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.