A New York Will Should Contain Clear Language to Create A Supplemental Needs Trust

A New York Estate Lawyer is familiar with the manner in which a Last Will should be prepared.  Among the fundamental rules when drafting a Will is to make certain that the provisions clearly set forth the manner in which the testator intends to dispose of assets.  The spelling of the names of beneficiaries should be correct along with their relation to the testator, such as a child, brother or friend.   Other provisions  such as those relating to the amount or percentage of a bequest need to be delineated and the terms of any testamentary trust or other instructions should be spelled out to avoid any confusion.

Unfortunately, there are many instances where the language of a Will or a Trust is unclear or ambiguous and estate litigation in the form of a Will construction proceeding is needed to resolve the controversy over the document’s meaning and the proper distribution of estate assets.  In Matter of Romanello, decided by Manhattan Surrogate Nora Anderson on July 17, 2014, the Court was presented with a Last Will that contained a testamentary trust.  Although the Will referred to the trust as a “special need trust fund,” the language of the trust did not comply with Estates, Powers and Trusts Law Section 7-1.12 which is entitled “Supplemental needs trusts established for persons with severe and chronic or persistent disabilities“.The New York Probate Lawyer Blog has previously discussed Supplemental Needs Trusts (“SNT”).  These trusts allow funds to be set aside for a person who is disabled or incapacitated without resulting in the person’s disqualification from receiving government benefits such as Medicaid or Social Security Disability payments.  In Romanello, the beneficiary of the trust was the testator’s disabled daughter.  The ambiguity in the language of the Will resulted in an issue as to whether the trust funds would be available for the daughter’s use without causing her to lose her governmental benefits.  In this proceeding the Court decided that there was an ambiguity in the Will which required that the parties attend a hearing to be scheduled to determine the testator’s intent when creating the Will.

As can be seen from Romanello, it is important to set forth clear language in a Last Will so that estate assets are distributed in the intended manner without any question or Surrogate’s Court lawsuits to clarify an ambiguity.   I have drafted numerous Wills and Trusts for clients which include provisions for a SNT.  Care should always be taken to utilize and follow the statutory language so the intention of the testator to help and protect the named beneficiaries is accomplished.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. 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: jules.haas@verizon.net, for an initial consultation.

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