Wills and Trusts

In New York, those who pass away without a valid will are subject to state intestacy laws. This means your assets may be divided according to New York’s default inheritance rules and not necessarily according to your wishes. For instance, a surviving spouse is entitled to all their deceased spouse’s estate if there are no surviving children. If the deceased spouse has surviving children, a certain percentage is set aside for a surviving spouse, and then the remainder is allocated to the children. If you wish to have your wishes carried out differently, you might want to create a will or trust that will allow you to customize how your assets are divided after your death.

A wills and trusts attorney can help you create an estate plan that would carry out your wishes and minimize the risks of potential disputes and other issues, which allows your family to focus on moving forward.

Wills and Trusts Attorney Near Me

Pitta & Baione LLP are experienced New York estate planning lawyers who can help you create wills and trusts to protect your assets and document your wishes.

Our offices are located at 120 Broadway, 28th Floor, New York, NY 10271. We work in New York’s financial district in downtown Manhattan, and our office is accessible via car, ferry, and subway lines via the A/C/J/Z/1/2/3 lines, as well as the R/W trains at Cortland Street.

Wills and Trusts Services Offered By Pitta & Baione LLP

At Pitta & Baione LLP, our skilled estate planning lawyers can advise you on the following matters:

• Will drafting and execution: Our experienced will attorneys can help create your will according to your goals.
• Establishing various types of trusts and advising on estate planning: For many clients, a trust is an ideal option for asset protection and long-term care planning, ensuring privacy and avoiding probate, which can be a costly and time-consuming court process. Pitta & Baione LLP helps clients with estates of all sizes create a trust that is suited to their needs.
• Drafting advance directives for healthcare and financial decisions: Advance directives on healthcare and financial decision-making in the event of incapacity are important for clients to consider. Pitta & Baione LLP helps clients draft healthcare proxies and powers of attorney tailored to the needs and comfort of clients as it relates to the delegation of healthcare and financial decisions in the event of their incapacity.
• Representing clients in court proceedings: A court proceeding is commonly required before family members can handle the assets of a deceased loved one. Pitta & Baione LLP represents clients in proceedings in the Surrogate’s Court such as a probate proceeding where a Will of the deceased is presented to the court to be recognized and the Executor appointed or an Administration proceeding where the court is asked to recognize the heirs of the deceased and to appoint a representative of the estate.

What Is a Will?

A will is a flexible option for individuals who are looking to document how they want their assets divided after death. Some considerations about formalizing a will in New York State include:

• A will must be signed by the testator or on the testator’s behalf in the presence of the testator and by their direction: If a will is not correctly executed, it can be challenged in court.
• There must be at least two attesting witnesses: The testator either must sign the will in their presence or the testator may acknowledge the signature to each of them separately within 30 days under New York state law. It is highly recommended for an attorney familiar with the proper execution of a Will to supervise the execution.
• Oral and holographic (handwritten with no witnesses) wills are generally not valid in New York.
• A will can be revoked by another will: The testator must indicate an intention to do this, such as by physically destroying a will.
• A person who renounces a disposition from the decedent’s estate is considered to have predeceased the decedent. This means a beneficiary may refuse a gift made to them under a will by filing a legal document with the court called a renunciation. Once approved, the beneficiary is legally considered to have died before the decedent.
• Funeral expenses, debts, taxes, and administration expenses retain priority over dispositions under a will or intestacy distributions.

Can You Contest a Will?

The process of creating and ultimately executing a Will must be done properly because under certain circumstances a Will can be challenged after you are gone. A beneficiary or any person who is affected by a will may contest a will under the following circumstances:

• On the basis of due execution: A will must be validly drafted and executed. There are formalities to the execution of a Will that must be followed. In other words, you must follow all appropriate requirements for witnesses and signatures in order to make it legally binding. The proponent of the will has the burden of proving due execution by a preponderance of the evidence.
• Capacity of the testator: The testator must have understood the nature and consequences of executing a will. Wills made when a testator cannot make legal documents, such as due to infirmity or age, can be challenged in court for validity.
• Whether there was an undue influence: The person objecting must show that the influencing party’s actions are so pervasive that the will is that of the influencer. For instance, an abusive caregiver, landlord, or other party with control over the testator cannot dictate or otherwise influence the contents of a will.
• Fraud: The proponent may have knowingly made a false statement that caused the decedent to execute a will. In such a case, one can contest the validity of a will based on fraud.
• A testator may include in a will an in-terrorem or no-contest clause: This prevents a gift under the Will from taking effect if the will is contested by the beneficiary of the gift. These clauses are especially powerful and dangerous, as they may be considered even if the beneficiary has probable cause for the contest. These clauses must be specifically drafted to be enforceable and are interpreted very strictly in New York.

What Is a Trust?

A trust establishes a separate legal entity that holds and manages assets. A trust of real or personal property must be created for a lawful purpose. Unlike wills, a trust can be utilized during your lifetime to allow you to benefit from the structure. A living trust can be controlled by a trustee (which can be yourself or a third party); it can invest in assets and earn interest.

Trusts can be used for estate planning involving charitable giving, long-term care planning, protection of financial interests for disabled adults, pets, or minor children, and minimizing of tax liability. Trusts are more private than wills, and many prefer them for that reason as well. They can be formulated with the following conditions and structures:

• A trust has three parties: its creator (also called settlor or grantor), the trustee or board of Trustees, and the beneficiary(ies). A single trust may have multiple beneficiaries.
• The creator of a trust must be a natural person who is at least 18 years of age. The settlor must intend to create a trust and have a designated trustee.
• The trustee holds the legal title to the property within the trust.
• When a sole trustee dies, the trust property vests in a court. The court can then appoint a successor trustee unless the trust itself provides directions for appointing a new trustee.

What Is a Valid Trust?

A trust is typically funded with assets like bank accounts, stocks, bonds, real estate, life insurance policies, furniture, artwork, and more (barring certain exceptions for life insurance/pension trusts and pour-over trusts). Proper funding of a trust is vital after the creation of a trust. To properly fund a trust, one must execute appropriate documentation for the transfer of title from the creator to the trust, like recording a deed for a real estate property or completing the registration of a stock certificate for stocks.

Types of Trusts

You can establish any of the following types of trusts in New York:

• Revocable: A revocable trust is the most flexible kind of trust as it can be amended or changed during a grantor’s lifetime. A grantor may revoke a revocable trust in writing by using the same formalities as the initial trust instrument. Revocable trusts are often used to avoid probate and provide a plan for the management of assets in the event of incapacity.
• Irrevocable: A lifetime trust is considered irrevocable unless the trust instrument expressly provides that it is revocable. An irrevocable trust cannot be changed once established (barring very limited situations). These trusts are commonly used for tax planning, asset protection, and charitable giving, as they effectively remove the assets from the grantor’s estate.
• Testamentary: A testamentary trust is created in a will. It only becomes effective upon the death of the testator and is often used to provide for heirs. It is often used to provide for minor children, disabled beneficiaries, or other dependents.
• Charitable: A charitable trust can be used to manage charitable donations, either for a set period or indefinitely. Charitable Remainder Trusts and Charitable Lead Trusts are commonly used structures for tax-efficient giving.

Elder Law Considerations and Medicaid Planning

When considering long-term care planning, it is essential to understand how trusts can be used to protect assets while ensuring eligibility for government benefits like Medicaid. Medicaid is a needs-based government health insurance program, meaning that the applicant must have limited income and assets to qualify for coverage. The most attractive benefit of the Medicaid program is that it covers long-term care services such as in-home assistance of a home attendant and nursing home care. Elder law and Medicaid planning often involve creating specialized trust instruments, such as the Medicaid Asset Protection Trust (MAPT), to safeguard one’s financial legacy without jeopardizing the ability to access essential care.

• Medicaid Asset Protection Trust (MAPT): This type of trust allows individuals to transfer assets into an irrevocable trust to remove them from their personal ownership. Assets placed into a MAPT are no longer considered part of the grantor’s countable assets for Medicaid eligibility. However, Medicaid imposes a five-year look-back period on such transfers for Medicaid nursing home coverage. This means that if an applicant requires Medicaid nursing home coverage within five years of creating the MAPT, the transferred assets may cause eligibility issues.
• Supplemental Needs Trust (SNT): An SNT, also called a Special Needs Trust, is a specialized trust for beneficiaries with disabilities. It allows assets to be held for the benefit of a disabled individual without disqualifying them from Medicaid or other means-tested government benefits. Funds within an SNT can be used to supplement the beneficiary’s quality of life by providing for needs not covered by Medicaid, such as specialized therapies, medical equipment, or transportation costs.
• Protecting Family Residences: A common Medicaid planning goal is to protect a family home. MAPTs or life estate deeds are two common methods to transfer a family home to protect it from being a countable asset or from Medicaid estate recovery after the recipient dies.

What Kind of Attorney Handles Wills and Trusts?

Wills and trusts attorneys specialize in the creation and execution of valid Wills and trusts. Pitta & Baione LLP can also help you establish an estate plan and document your wishes using either a Will or a trust based on your goals.

Wills and Trusts: FAQs

The following are some frequently asked questions we hear about the basics of estate planning. For tailored advice and a legal consultation, contact Pitta & Baione LLP today.

Can You Sue a Trust?

Many lawsuits relating to trusts usually would take place against a trustee (for issues like breach of fiduciary duty), and not the trust itself as a legal entity.

Who Is Eligible To Contest the Probate Of a Will?

You do not need to be a named beneficiary in order to contest a will. A probate proceeding can be initiated by someone who is adversely impacted by the results of a will and believes it was improperly, fraudulently, or illegally executed. For instance, if a will specifies inheritance for two out of three surviving children of the deceased, then the third child is likely to have the standing to contest the probate of a will.

Does an Irrevocable Trust Protect Assets From a Lawsuit?

With some exceptions, irrevocable trusts are generally well-shielded from creditor claims since the settlor has given up their ownership of the assets and instead, placed them in a trust. For this reason, irrevocable trusts are sometimes also known as asset protection trusts. However, if a court finds that a trust was created fraudulently, for instance with the express purpose of avoiding legitimate creditors, they may rule that the trust is invalid.

Can a Beneficiary of a Trust Sell the Property?

It is typically the trustee who has the authority to sell real estate and property held by a trust. The beneficiary, however, has a right to distribution, and may, under some circumstances, be able to sell property once inherited through a trust. The terms of the trust determine who has the authority for what actions.

Are Wills and Trusts Public Records?

The contents of a will are a matter of public record, meaning anyone, including debt collectors, former heirs, neighbors, and estranged family, can see how they are structured and what you are leaving to whom. Trusts and their assets, however, are kept private.

How Do Wills and Trusts Differ?

A will is a legal document detailing your wishes after your death. Trusts are legal structures that you can create to manage, invest, and distribute assets both during your lifetime as well as after you are gone. In general, trusts are more private, more complex, and better at managing larger sums as well as protecting assets from creditors, probate, and additional tax liability.

What Is a Totten Trust?

A Totten trust is a bank account in the name of the decedent that is payable on the decedent’s death to a named beneficiary. It is also referred to as a “payable-on-death” account and does not go through probate, which is an advantage for avoiding delays in distribution.

Do Life Insurance Policies Go Through Probate?

Life insurance proceeds usually go directly to named beneficiaries, bypassing the will and intestacy laws. They are considered separate from either a will or a trust. If no beneficiary is designated, the proceeds may be paid to the estate and could be subject to probate. They are considered separate from either a will or a trust.

Looking for a Wills and Trusts Attorney? Speak to an Experienced Lawyer at Pitta & Baione LLP Today

Pitta & Baione LLP is a Manhattan law firm practicing in wills and trusts law. Our team can help reduce stress on you and your loved ones by handling your estate planning professionally and discretely. We take the time to understand your unique needs and create strategies that can adapt to evolving family circumstances, shifting financial goals, and changes in the legal environment. Get things done well the first time and rest easy with the skill, efficiency, and legal expertise of Pitta & Baione LLP.