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January 2010 Archives

Good news for those trusts that don't get funded right away

As practicing estate planning attorneys, we come across clients who have set up various types of Trusts, whether with our office or with other attorneys. The problem is that many of these Trusts are unfunded - either there are no assets titled in the name of the Trust or there are some assets in the Trust and some still in the name of the client. When we meet with clients to review their estate planning situations, we always try to make sure that Trusts get funded - better late than never (and always easier when our clients are still with us). The Surrogate of Suffolk County recently held that a Trust was valid, even though it was funded a lengthy six months after it was originally executed. Let me point out that we have clients who are funding their Trusts years after they are executed, and any other result in this case would have been a serious problem. The Surrogate was affirmed on appeal by the Second Department, in the Matter of Doman, 2009 NY Slip Op 09222 (http://www.nycourts.gov/reporter/3dseries/2009/2009_09222.htm). A husband and wife set up separate Trusts to benefit each of their separate children from previous marriages. The husband owned a co-op apartment in New York City, which was eventually transferred to a Qualified Personal Residence Trust for the benefit of the wife. The wife was to receive the income of the Trust during her lifetime, and after her death, any remainder was to pass to the husband's son. At some point during the wife's lifetime, the apartment was sold and the proceeds were converted to an annuity. Again, the wife received income during her life, and at her death, the approximate $1.1 million remaining in the Trust was to pass to the husband's son. The wife's daughter, who received all of her mother's other assets, challenged the validity of the Trust because it had not been funded with the shares of the co-op apartment until 6 months after it was executed. The daughter's argument was that since the Trust was invalid, her mother owned the apartment/annuity outright and any proceeds should go to the daughter, not the stepson. The Second Department recites the requirements for a valid Trust in New York: "(1) a designated beneficiary, (2) a designated trustee, (3) a fund or other property sufficiently designated or identified to enable title of the property to pass to the trustee, and (4) actual delivery of the fund or property, with the intention of vesting legal title in the trustee." Despite the daughter's argument that the six-month gap between execution and funding of the Trust meant that the fourth requirement above was not satisfied, the court ruled that this did not matter because the property was actually delivered to the Trustee after the six months. 

  • I wanted to write to say how pleased my wife and I were at your professional handling of our estate planning and preparation of new wills. We were put at ease by your visit to our home for an interview and were pleased that you listened to us and captured the things that we felt were important.

    --Robert and Christine Simonson, Fairport
  • In order to finalize the documents we came to your office and were greeted in a very professional manner and we could not have asked for finer service. We left with copies of everything we needed and feel very confident our needs have been met. Thanks again. We will surely recommend you should the opportunity arise.

    — Christine and Robert Simonson, Fairport
  • I have been working with Weinstein & Randisi for about two years now. Elizabeth Randisi, through a very thorough process, has helped my wife and me determine what is really important in our lives. Thus, we were able to draft a living will that reflected our most important values regarding our estate.

    --David and Ajia Cherry, Fairport
  • I would like to give a testimony for Elizabeth Randisi, an estate attorney with Weinstein & Randisi. Her knowledge of wills and estate planning was clearly demonstrated in her presentation to us. Realizing our need for a will, my husband and I went to see Elizabeth.

    --Kathy and Gary Gray, Webster
  • Filing for Medicaid is never an easy or fun process. However, working with the Weinstein & Randisi firm made the process simple and streamlined. We were able to obtain all files and records regarding Medicaid enrollment within a few days using specially prepared checklists and verbiage recommended by our assigned paralegal.

    --Ajia and David Cherry, Fairport
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