Types of Trusts: What Works Best for You and Your Loved Ones

Even though most people think about wills when they think about estate planning, there are many other tools available which are just as if not more effective to use.  One of the most common devices used is called a trust.  Essentially, a trust is a device that allows individuals to control the distribution of their property during and after their lives.  And not all trusts are created equally.  There are many different kinds of trusts and many purposes for their creation.  But only a trained New York City probate attorney can evaluate you and your loved one’s needs to accurately assess which type of trust is most beneficial and helpful for your circumstances.

As a preliminary matter in New York, a trust by default is irrevocable.  Meaning, once the trust is created it is incredibly hard to terminate it without the consent from all beneficiaries.  The issue here is that, if the beneficiaries are incompetent or minors, a guardian may not issue consent on his or her behalf.  Thus, the will would need a court order—something judges are very hesitant to do.

This is a danger of using an inexperienced and young attorney who does not know that a trust is irrevocable by default.  A more experienced New York City probate attorney will know that you can simply state the trust is revocable to preserve the control within the grantor (the person who makes the trust).

Even though it immediately sounds like you would never want to have an irrevocable trust, this is not always the case.  Having an irrevocable trust will take some of your assets out of your estate for tax purposes whereas a revocable trust will not!

One of the more common types of trusts is called a testamentary trust.  This is a trust that is created through your Last Will and Testament.  Upon the testator’s death—the creator of the will—the assets of the will pass to the trust.  Most of the time, the trust is funded by the residuary of the will, which is the pool of all unassigned or bequeathed property in the testator’s estate.  The major advantage of a testamentary trust is that it is amendable and revocable at any time during the testator’s lifetime.  However, upon the death of the testator, the trust is irrevocable.

The counterpart to a testamentary trust is called a living trust. As opposed to a testamentary trust which is in the will, a living trust is made separately and during the life of the grantor.  This type of trust is where a trustee holds legal title to property of the beneficiary according to the instructions of the grantor in the trust document.

Sometimes an individual wants to make a charitable trust.  These types of trusts are established to benefit a certain charity or for the general public at large.  You may ask why you would want to use a charitable trust and not just give the amount outright.  The answer is to help you or your loved one’s estate avoid taxes by dropping the amount of taxable property into a lower level.  Moreover, many individuals who have worked at a long time for an organization, business, or school typically like to set up charitable trusts to support such program after death.

Trusts are complicated and can get costly when you retain an inexperienced New York City probate attorney.  This is why it is essential that you retain an efficient and experienced New York City trusts attorney such as Jeffrey Weinstein, Esq.  For over 20 years, Mr. Weinstein has dedicated his career to ensuring his client’s and their families are provided for after passing.  It is never easy to discuss what will happen after your death, but having a compassionate and client-centered New York City trust attorney such as Mr. Weinstein will help facilitate the conversation.  Please call to make an appointment for a FREE case evaluation at 646-495-9614 or visit our website for more information at http://jlwlawoffices.com

New York City Trusts Attorney Discusses Trusts and the Powers They Have

People may want to control the distribution of their property during their lives or after death through the use of a device known as a trust.  Typically, a trust is created for the financial benefit of the person making the trust, a surviving spouse, children, or for a charitable purpose.

There are two main types of trusts to be aware of.  An inter vivos trust, often referred to as a “living trust,” is a legal term for a trust established during one’s lifetime. Because an inter vivos trust takes effect prior to one’s death, it is different from a testamentary trust. Testamentary trusts are established when the grantor dies, typically as part of a will.  Today, I would like to discuss a living trust in a little more detail.

New York law allows for the grantor of an inter vivos trust to pass the grantor’s assets to the grantor’s beneficiaries without probate; something disfavored by the law.  As a result, this means that all the formalities required to make a living trust must be strictly followed.  Meaning you must retain a skilled and experienced New York City Trusts attorney to expertly draft this instrument for you to ensure its success.

Unlike wills which can be freely revoked by the testator, a trust can be more difficult to terminate for two reasons.  First, a trust is by default considered to be irrevocable.  This can create problems when you have an inexperienced New York City trusts attorney draft your trust.  For instance, if you wanted to retain the power to revoke your trust at any time but your attorney did not explicitly reserve that right,that trust is actually irrevocable and incredibly difficult to dissolve.

Second, to revoke a trust that is irrevocable pursuant to EPTL section 7-1.9, you must get the written consent of all beneficiaries.  While this sounds plausible, a beneficiary’s consent requires capacity.  And if a trust is made for an incompetent individual or for a minor, consent cannot be obtained—even through a guardian!  Since trusts are typically made for both of these individuals, this is a very common problem.  Moreover, if the trust is for a charitable purpose, the attorney general would be the party required to obtain consent for the revocation of the trust.

Psychologically when people here “trusts” they think of a rather large, complicated, and maybe even mysterious document.  But that is not the case with an experienced New York City trusts attorney.  In fact, it may be easier to execute a revocable inter vivos trust than it is to create a will in some instances.

To execute a revocable trust, the EPTL requires it be explicitly noted the trust is revocable, it is in writing, signed by a grantor of legal age (at least 18 years old), and acknowledged by a notary or signed in the presence of two witnesses.  The document itself can be quite simple giving the trustee significant amounts of discretion within the parameters you set.  An experienced New York City trusts attorney who has completed many trusts before will know exactly how to fit your needs into a simple-to-understand instrument at a cost-effective rate.

With over 20 years of experience, Jeffrey Weinstein is the experienced New York City trusts attorney that you need to execute an efficient and effective trust benefiting your or a loved one.  Mr. Weinstein will ensure that your device is expertly crafted to carry out your true intent, to give specific directions to your trustee, and to truly assist the beneficiaries of the trust.   If you, a loved one, or close friend are interesting in learning more about enacting a trust, please call Mr. Weinstein for a FREE CONSULTATION at (212) 693-3737.  Make an appointment today or visit our website for more information at http://jlwlawoffices.com.

The basics of writing a will

Formalities of a Will

 One of the simplest ways to ensure that a person’s family members are cared for after death is to have a valid will in place.  A will is a legal instrument created by a testator—or who the will is made for—which dictates the testator’s wishes upon his death.  While New York and all other states have intestacy statutes, or statutes with distribute property automatically for individuals without a will, a will ensures the testator still has control over the disposition of their property after death.

According to the EPTL, a will may be created by anyone 18 years or older who is of sound mind and memory at the time the will is written.  An object to be devised must first qualify as “property,” either personal or real, any and all property can be willed.  Interestingly enough, property may only be given to those who have the capacity to hold it.

In terms of formalities, a valid will must be made in writing and signed at the end by the testator.  Alternatively and in limited exceptions, there may be a “proxy” who signs the will for the testator which requires the proxy’s own name, signature, and address to be included at the end of the will.  A major requirement is that a will must be signed by the testator in the presence of two witnesses.  Not only does there have to be these two witnesses, but they must be disinterested witnesses.  This requires each witness to not be receiving anything under the will, otherwise their signature is invalid.

As a result, the interested witness would receive the lesser of their bequest in the will or their intestate share.  However, if there is an interested witness and still two non-interested witnesses, the supernumerary rule will prevent the bequest to the interested witness from being terminated.

As you may notice, the witness rule can be complicated and difficult to access since even one small bequest under the will, even indirectly, can result in a problem.  An inexperienced New York City probate attorney who fails to comply with the disinterested witness requirement may result in a lengthy and costly will contest.  This is why you need to hire an experienced New York City probate attorney like Jeffrey Weinstein to expertly draft wills without subjecting you to potential litigation.

Moreover, oral or handwritten wills are usually not considered valid in New York courts unless they fall into very specific exceptions.  Such wills are only valid if they were made by a member of the armed forces or by a mariner at sea.  In such cases, the will is valid until one year after the veteran’s cessation of service, or for three years after the mariner created the will.

There are many resources available on the internet or books at the store you can buy to make yourself a will.  And while some of these resources are good, they can never take the place of an experienced New York City probate attorney.  Those forms and books can only tell you what to do but they cannot do it for you.  In New York—as opposed to so many other states which those resources are more than adequate for—there are so many requirements that you cannot possibly check for yourself; for instance, the disinterested witness rule.

Furthermore, this is your Last Will and Testament.  This is your legacy—that your family and friends will have to work with after your passing.  This is a big deal and you should do it right.  This is why it is essential that you retain a New York City trusts attorney such as Jeffrey Weinstein, Esq.  He has been compassionately assisting families with their estate planning needs for over 20 years and continues to demonstrate the dedication and skill required to best handle your case.  Please call to make an appointment for a FREE case evaluation at 646-495-9614 or visit our website for more information at http://jlwlawoffices.com.

Will Contests: What they are, Why they Occur, and How to Avoid them

New York City Probate Attorney Jeffrey Weinstein Discusses Will Contests: What they are, Why they Occur, and How to Avoid them

Once you have overcome the initial pain of losing a loved one and have made the necessary immediate arrangements ,the next step is to see that the will is properly executed.  This process,  known as “probate,” is to  assess the validity of a will and entertain any will contest that may arise.

Probate ensures that will beneficiaries and creditors have been paid, and that the intentions of the testator (the decedent) are respected.  When you hire an experienced New York City probate attorney, the probate process will be more efficient and the true intent of the testator will be carried out.

However, when you hire an inexperienced New York Estates attorney to draft your will, you are risking an orderly probate process with a frustrating and potentially costly one.  When the probate process is disorderly, some parties involved may feel the need to contest the will if you believe the will does not accurately carry out the testator’s intent.  In addition, a will drafted by an inexperienced lawyer can be time-consuming, costly, and frustrating or hurtful to loved ones during an already difficult time.

If a will contest is initiated, a person must have standing to bring a will contest.  A person has standing to contest the will if he or she is deemed an interested party to the will.  Generally, only an interested person has the right to contest a will.  If the testator included a “no contest clause” in the will, there are special rules that apply.

Under New York law, if a contest is successful the no contest clause will have no effect and it fails along with the will.  However, if the will contest is not successful and the will and no contest clause stands, the challenger will lose their bequest under the will.

Reasons Loved Ones May Feel a Need to Contest

There are various possible reasons why a person may wish to contest a will.  First, an interested party may believe that the circumstances surrounding the drafting of the will were suspicious.  Namely, one might believe that a testator was the victim of undue influence.  Undue influence is the use of one’s position of power over another person so as to compel the victim to  will more property to him that the testator would have independently intended to do.

Undue influence issues may arise in any situation, but is commonly where one person has a duty to the testator because of a confidential or fiduciary relationship, such as a doctor-patient, lawyer-client, or clergy-church member relationship.  In New York when a lawyer receives a gift in the will that he or she drafts, it automatically triggers a Putnam scrutiny hearing where the court will have to assess the possibility of undue influence by the attorney.

Another reason that an interested party may want to contest a will is because of uncertainty as to the intention of the testator in terms of will revocation.  In New York, a will revocation or alteration may be completed by the following steps:

(1) Another will;
(2) a writing of the testator clearly indicating his intent to revoke/alter the will, in which case the writing must be executed in accordance with will formalities;
3) with a codicil or amendment to the will in a separate document; or
4) by a physical act.

A physical act may be accomplished through burning, tearing, cutting, or other destruction by the testator or someone else, at the direction of the testator, such action which must be proven by at least two witnesses who did not do the actual destroying.

As noted earlier, preventing will contests starts with drafting a strong will.  New York  Estates attorney Jeffrey Weinstein has over 20 years of experience in drafting wills, as well as other probate matters.  When a will contest does arise, you can also trust Mr. Weinstein to use all his available resources to uncover the true meaning of the will and to preserve the testator’s intent.  If you or a loved one has question regarding estate planning, about a will, or looking for more information on how to challenge a will, Mr. Weinstein offers a FREE CONSULTATION.  Please call to make an appointment at 212 693-3737 or visit our website for more information at http://jlwlawoffices.com.