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Wills and Trusts

What is Required for a Valid Will in New York?

For all intents and purposes, this answer deals with wills in writing.

There are some exceptions to the following requirements below.

New York Estate Powers and Trusts Law (EPTL) – Section 3-2.1 sets forth the exact requirements for the Execution ant Attestation of Wills in New York.

(1)  You must be eighteen years of age or over, and must be of sound mind and memory in order to make a will in New York.

(2)  The will must be signed at the end by the Testator (the person making the will).

(3)  New York requires at least two separate witnesses to attest to the Testator signing the will.

This firm recommends that three (3) witnesses be present.

(3)  The signature of the testator at the end of the will and must be in the presence of each of the attesting witnesses.  The testator may either sign in the presence of the witnesses, or acknowledge his signature to each of the attesting witness separately.

(4)  The Testator shall, “at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will.”  EPTL – 3-2.1 (a) (2).

There are other instruments available for the testator which can assist in the validity of a will.

For more information on this subject, please contact us.

Learn the Definition of Certain Estate Terms

Testator 

The person who is making the will.

The Testator is referred to as the person who has died and leaves a will.

Decedent

In plain English, the decedent is the deceased.

Executor / Executrix 

The person appointed in the will by the Testator.  The Executor’s responsibility is to administer the estate of the Testator, according to the Testator’s directives in the will.

Intestate

A person who has died without a will, or a valid will.

Ex.  Kendrick McKenna died intestate and now the Surrogate Court must appoint an Administrator.

Intestate Succession

The method and laws used to distribute the estate of a person who died without a will.

There are laws in New York State that dictate how an estate is distributed if a person dies intestate. The Surrogate Court must appoint an Administrator.

Administrator 

A person appointed by the Surrogate Court to manage the assets and liabilities of an intestate estate and distribute the estate according to the laws dictating intestate succession.

Surrogate Court

The Surrogate’s Court in New York has the power to declare wills valid or invalid, oversees the administration of estates, and hears cases involving the affairs of decedents, including the probate of wills and the administration of estates.

Probate

The judicial procedure by which a testamentary document is established to be a valid will.

The process of proving a will to the satisfaction of the Surrogate Court.

Administration

The judicial procedure by which a person is legally appointed and supervised by the Surrogate Court to manage and settle the estate of a person who died intestate.

Informative Information on Trusts

TRUST consists of property transferred from the TRUSTOR.

(Grantor/Settlor/Creator) to TRUSTEE.

TRUSTEE has Legal Title to the Trust Property subject to the provisions specified in the Trust.

TRUSTEE holds the Trust Property for the benefit of the BENEFICIARY.

Benefits of Trust

1.)  Trustee manages assets for Beneficiary

2.)  Creator makes sure assets exist for the future generations

3.)  Trust that is created during Settlor’s lifetime does NOT own the trust property at the Settlor’s death.

  • Must be a written instrument

Living Trust = Takes effect during Creator’s Lifetime

Testamentary Trust = Trust created in Creator’s Will

The Legal Requirements for a Valid Trust

1.)  Creator/Trustor owns the property at the time Trust is Created 

Designs the relationship

Establishes the Trust

2.)  Trust Property can be Real Estate or Personal Property.

  • Must be capable of producing income.

3.)  Valid Purpose – Must be legal and described in Instrument – must be specific.

4.)  Trustee – Owns Legal Title to the trust property subject to the duties specified by the Grantor –

Trustee is a fiduciary and is held to a higher standard of care.

  • Cannot delegate duties to a third person
  • Must be loyal to the trust and the beneficiaries.
  • Cannot personally gain from trust assets except by fees as stated in trust or by statute.
  • Must keep Accurate Records and Accounts of assets – Accounts must be given to the Beneficiaries at least yearly – If Beneficiary a minor then records go to Guardian.
  • Trustee must take possession of the Trust property and make it profitable.
  • Must see that all debts of the trust are paid – must collect all money owed to the Trust.

-Must preserve, protect and defend the balance of the trust.

  • Trustee must have capacity – Must be a Natural Person or a Corporation.

The Creator can also be the Trustee

  • A Trustee may reject/resign duties by written instrument.

A Trustee is liable to Beneficiaries For:

  • Loss in value due to management.
  • Breach of Loyalty to Trust.

5.)  Beneficiary – Has Equitable Title to Property subject to the terms of the Trust

  • No need of Capacity – can be more than one.
  • Take Property as Tenants in Common – % reduced as the class grows.
  • Beneficiary may freely alienate benefits – the benefits are subject to creditors.
  • The Beneficiary who takes remainder at termination of trust is called Remainderman.

CREATING A TRUST

  • Must be a Written Instrument
  • If  Personal Property then it can be a simple document
  • If the corpus is Real Property, then the Trust must be created by a DEED or Conveyance of Trust and must be recorded.

InterVivos Trust (Living Trust)

  • Can be Revocable or Irrevocable.
  • Revocable – Creator retains ability to terminate the Trust during lifetime.
  • Irrevocable – Creator relinquishes right to terminate and the Trust must terminate naturally.

Testamentary Trust

  • Created by Testator in his WILL to provide income to future generations or to create theMarital Deduction for the Surviving Spouse.

 

DRAFTING A TRUST – REQUIREMENTS

 

1.) Name

  • Not legally necessary but good form.

2.)  Appointment of Trustee

  • Each time a trust is created / must have Capacity/ May need to post a bond.

3.) Specify Purpose

4.) Powers of Trustee

  • Specify in addition to general powers along with discretion or limitations on the Trustee in certain. functions

5.) Trust Property

  • Must be in existence and the Trustor has transferable interest specific.

6.) Beneficiary

  • Always name the beneficiary in a Private Trust – By Individual or by Class.

7.) Power of Appointment (not necessary)

  • Person (trustee/beneficiary or 3rd person) Power to Appoint and Name Successor Beneficiaries

ex. Ability to appoint a Successor Trustee.

8.) Termination

  • By the Life of the Beneficiaries / or a Specific # of years/ or upon a specific event.

9.) Remainderman = (Where the balance goes at the termination of the trust)

  • Either distributed to beneficiary or reversion to Creator.
  • TRUST must be signed by the Creator.
  • Witnessed
  • Notarized
  • Trustee should sign too if it is an Inter Vivos Trust (A Living Trust).
  • If a Testamentary Trust – then Trustee goes to Surrogate to be confirmed.