Outline

⭐️ Key
- ➡️ = A link to another post or page on this website that is available to all readers.
- 🔑 = A link to another post or page on this website that is available to ➡️ Paid Subscribers.
- 🖇️ = A link to another part of this Outline. Clicking on the link opens the part in a new tab in your browser. This allows you to read the relevant section, close the tab, and return to the Outline without losing your place.
- 🔗 = An icon you can click that copies a direct link to the node in the Outline. When the link is successfully copied, the icon will briefly change to ✅.
- 🔤 = A link to a ➡️ Glossary definition.
529 Plan
- Secure 2.0 allows money in a 529 plan to be converted into a Roth IRA tax-free, but there are limits.
- Jessica Dickler, A 'significant objection' to 529 college] savings plans will go away Jan. 1. 'This is a big deal,' expert says, CNBC, Dec. 28, 2023 (Apple News link): "A provision in Secure 2.0 allows money saved in a 529 college savings plan to be converted into a Roth individual retirement account tax-free after 15 years. // Up until now, the funds had to be used for qualified education expenses. Starting Jan. 1, the savings can also be put toward retirement."
Administrator C.T.A.
- Definitions
- 🖇️ NY Administrator C.T.A.
Artificial Intelligence
- AI Regulation and Policy in the U.S.
  - Different definitions of AI across jurisdictions
  - Federal
    - 2022-10-04 Biden administration releases Blueprint for an AI Bill of Rights
      - Puts forward five core principles:
        
        Safe and Effective Systems
        
        Algorithmic Discrimination Protections
        
        Data Privacy
        
        Notice and Explanation
        
        Human Alternatives, Consideration, and Fallback
      - Resources
        
        Associated Press, White House unveils ‘AI Bill of Rights’ to protect digital, civil liberties, MarketWatch, Oct. 4, 2022 (Apple News link) ("The Blueprint for an AI Bill of Rights notably does not set out specific enforcement actions, but instead is intended as a White House call to action for the U.S. government to safeguard digital and civil rights in an AI-fueled world, officials said. . . . Still, because many AI-powered tools are developed, adopted or funded at the state and local level, the federal government has limited oversight regarding their use. ").
    - 2023-07 Voluntary commitments were made by Amazon, Anthropic, Google, Inflection, Meta, Microsoft, and OpenAI to "help move toward safe, secure, and transparent development of AI technology," including internal/external security testing of AI systems before release, sharing information on managing AI risks and investing in safeguards.
    - 2023-09 Adobe, IBM, Palantir, Nvidia, and Salesforce joined the volunary commitment.
    - 2023-10-30 Biden issued an executive order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.
    - FTC
    - EEOC
    - CFPB
    - DOJ
  - States
    - California laws on AI
    - Colorado AI Act
  - Resources
    - Hope Anderson, AI Governance in the US: Key Regulations, Policies, and Global Insights, Lawline, Jan. 14, 2025.
- AI’s Role in Financial Advisory
  - AI is transforming the financial advisory industry by providing tools for lead generation, financial planning, client service, and administrative tasks.
  - Benefits of AI for Advisors: AI allows advisors to streamline operations, improve efficiency, and focus on client relationships.
  - Importance of Data Privacy: Ensuring data privacy and compliance remains crucial as AI tools become more prevalent.
  - Resources
    - Satayan Mahajan, Your New AI Assistant (No, It Won't Steal Your Job), WealthManagement, Oct. 3, 2024: AI is transforming the financial advisory industry, providing tools for lead generation, financial planning, client service, and administrative tasks. By leveraging machine learning and generative AI, advisors can streamline operations, improve e neefficiency, and focus on client relationships. However, ensuring data privacy and compliance remains crucial as AI tools become more prevalent.
- AI and Lawyers
  - Bar Associations Provide Guidance
    - American Bar Association 512 (released 7/29/2024)
    - Florida Bar Provides AI Guide
  - Advertising
    - Chatbots
  - Communicating with clients
  - Competence of lawyers
  - Confidentiality
  - Hallucinations
  - Legal Fees
  - Robert M. Harper, Does Counsel Have a Duty to Disclose to a Surrogate’s Court the Fact That Hearing Evidence That Counsel Proffers Has Been Generated by Artificial Intelligence?, Farrel Fritz, Jan. 30, 2025 (discussing Matter of Weber).
- Types of Artificial Intellgience
  - Augmented Reality
  - Biometrics
  - Generative AI
- Orly Mazur & Adam Thimmesch, Transforming Tax Communications With Large Language Models, 185 Tax Notes Fed. 757 (Oct. 28, 2024).
- ➡️ How AI Gives Me Confidence to Contribute to Professional Discussions
- ➡️ Decoding Handwritten Legal Decisions with ChatGPT: A Case Study
- Florida Bar Guide to Getting Started with AI
  - "It provides a user-friendly, broad overview of AI and generative AI and includes definitions, explanations of the technologies, an analysis of ethical issues, implementation advice, practical resources, and much more." Nicole Black, Florida Bar releases handy generative AI guide for lawyers | Legal Loop, Daily Record, Jan. 17, 2025.
Bank Accounts
- 🖇️ Joint Bank Accounts
Beneficiaries of a Trust
- Removal of Beneficiary
  - By Grantor
  - By Trust Protector
Bluebook
- Online: https://www.legalbluebook.com/
Case Unsealing
- ➡️ New York County Supreme Court Grants Unsealing of Matrimonial Case File for Deceased Father’s Daughter
Charitable Planning
- Donor Advised Fund (DAF)
  - Definition of 🔤 Donor Advised Fund (DAF)
Chevron Doctrine
- Loper Bright Enterprises v. Raimondo overruled Chevron v. NRDC.
  - Ellen P. Aprill, Unpacking the Most Important Paragraph in Loper Bright, Loyola Law School, Los Angeles Legal Studies Research Paper No.2025-02, Jan. 16, 2205 (SSRN Link).
Chicago Manual of Style
- Online: https://www.chicagomanualofstyle.org/home.html
Collectibles
- "The market for collectibles is expanding, with ultra-high-net-worth individuals allocating about 25% of their portfolios to art, according to a 2024 survey by Art Basel and UBS. Additionally, over one-third of family offices now include collectibles in their investment strategies, as noted in Goldman Sachs’ Family Office Report." Claire Ceremuga, Family Wealth Report: Collectibles as Investments: Rewards, Risks, and Practical Insights from Experts (Nov. 18, 2024), Wealth Strategies Journal, Nov. 18, 2024.
- Authentication
- Valuation
- Soaring Prices, Big Risks Characterizing Collectibles: Investment Summit, Family Wealth Report, Nov. 18, 2024. • Summarized by Claire Ceremuga in Wealth Strategies Journal, here.
Contract Not to Revoke a Will
- Joint Will
- Mutual Wills
- "A joint will is relatively uncommon; well-counseled testators do not use them. . . . [J]oint wills are notorious litigation-breeders that should not be used at all." Jesse Dukeminier et al., Wills, Trusts, and Estates (7th ed. 2005).
Contract to Make a Will
- Generally, see 🖇️ Contracts Relating to Wills.
- Contexts: A promise to make a will can be made in return for . . .
  - an agreement not to contest a will
  - an agreement to marry
  - services to be rendered (such as serving as nurse and housekeeper)
- Statutes of Frauds required?
  - To ease the burden of proof, some states require the contract to comply with the Statute of Frauds, meaning they must be in writing to be enforceable.
- Context: Servies to Be Rendered
  - In states that require compliance with the Statute of Frauds, quantum meruit (i.e., restitution) might be available for the services rendered to the decedent.
Contracts Relating to Wills 🔗
- Two Types of Contracts Relating to Wills
  - 🖇️ Contract to Make a Will
  - 🖇️ Contract to Revoke a Will
- Contract Law Applies
  - Contract law applies, not the law of wills.
  - The contract beneficiary must sue under contract law, proving the a valid contract.
- Upon Testator's Death
  - The will is probated.
  - If the will breaches the contract, then the beneficiary is entitled to remedies.
- Remedies for Breach
  - Courts are not uniform in their characterization of the remedies that apply.
    - Contructive Trust
    - Damages
    - Specific Performance
  - Two possible results, either . . .
    - (1) The contract beneficiary is awarded the value of the property that was intended for that beneficiary under the contractual will.
    - (2) An order compelling the decedent's successors to transfer the subject property to the contract beneficiary.
Corporate Transparency Act (CTA)
- Generally
  - Purpose: Aimed at combating illicit activities by improving corporate transparency
  - Statute: 31 U.S.C. 5336
  - Regulations: 31 C.F.R. 1010.380
  - Open Issue: Is the CTA enforceable? There "is a tug of war amongst the government seeking transparency, on the one hand, and concerned citizens and private interest groups seeking privacy, on the other, and no definitive answer . . . ." 🖇️ McCormack & Stern.
- Timeline
  - 2021: The CTA was enacted as part of the National Defense Authorization Act for Fiscal Year 2021.
  - 2024-01-01: The CTA went into effect.
  - 2024-05: Texas Top Cop Shop, Inc. v. Garland was filed.
  - 2024-12-03: In Texas Top Cop Shop, Inc. v. Garland, the U.S. District Court for the Eastern District of Texas issued a nationwide injunction forbidding the government from taking steps to enforce the CTA.
  - 2024-12-23: The 5th U.S. Circuit Court of Appeals blocked the injunction in Texas Top Cop Shop, Inc. v. Garland, reinstating the CTA.
  - 2024-12-26: Another panel of judges on the 5th Circuit reinstated the injunction in Texas Top Cop Shop, Inc. v. Garland.
  - 2025-01-09: "Attorneys general from 25 Republican-led states on Thursday urged the US Supreme Court to keep in place a nationwide pause on enforcement of the Corporate Transparency Act, arguing that allowing the law to go into effect would harm their local economies." Tristan Navera, Corporate Transparency Act Lashed by State Attorneys General (1), Bloomberg Law, Jan. 1, 2025.
  - 2025-01-07: Judge Jeremy Kernodle of the U.S. District Court for the Eastern District of Texas issued a nationwide ban in Smith v. U.S. Department of the Treasury.
  - 2025-01-16: A bill was introduced in the House of Representatives to repeal the CTA.
  - 2025-01-23: The Supreme Court stayed a nationwide injunction against the CTA in Texas Top Cop Shop, Inc. v. Garland, but a separate injunction remains in effect due to Smith v. U.S. Department of the Treasury, leaving CTA reporting requirements optional for now.
    - Kelly Phillips Erb, Supreme Court Puts Business Ownership Reporting Block on Hold. But Don't Rush To File--Yet, Forbes, Jan. 23, 2025 (Apple News Link).
    - Alexandra C. McCormack & Russell H. Stern, Corporate Transparency Act Receives Support From SCOTUS, but It’s Not Enough To Lift Nationwide Injunction, NYSBA, Jan. 29, 2025.
    - National Coin and Bullion Association, Corporate Transparency Act Enforcement Remains Paused Amid Ongoing Legal Challenges, Greysheet, Jan. 30, 2025 ("Many in the numismatic community, particularly coin dealers and related businesses, may fall under the CTA’s definition of 'reporting companies' and may submit beneficial ownership reports to FinCEN voluntarily while the injunction is in effect, though they will not face penalties for not doing so.").
CT In Terrorem Clause
- Charles E. Rounds, Jr, A trust’s in terrorem clause is unenforceable as a matter of public policy to the extent that it would subvert fiduciary accountability, JD Supra, Feb. 8, 2024 (discussing Salce v. Cardello, 301 A.3d 1031 (Conn. 2023)).
Cybersecurity
- False sense of security (complacency)
- Identity theft
- Insurance coverage
  - Cyber-liability policies
  - Malpractice insurance typically does not cover
- Tips
  - Create policies
    - Example: wire-transfer policy
      - Call to confirm information on wire-transfer fax, rather than relying on information in the fax
  - Don't disable firewalls
  - Inspect email addresses
  - Training: Learn about different cyber crime methods that criminals use
    - Knowbe4
    - Sans.org (has a newsletter called Ouch)
  - Use a VPN to make it appear as if you phone is in a different location
  - Use multi-factor authentication because it is more secure than passwords
  - Visit only reputable sites
- Types of cyber crime techniques
  - Cryptojacking (unauthorized use of a network to mine)
  - Deepfakes
  - Juice jacking (involves a charging kiosk)
  - Malware
  - Phishing emails (fake emails)
    - Image-based phishing email (no software can identify the content as malicious)
  - Phishing websites
  - Ransomware
  - SMishing (phishing via text message)
  - Spoof number (a number that looks like it is coming from a reputable source)
  - Spear phishing (an email)
  - Trojan
  - USB attacks
  - Viscing (voice phishing)
- Resources
  - Mark Bassingthwaighte, 10 Sloppy Tech Habits Your Firm Needs to Break, Lawline, May 24, 2024.
Deficit Reduction Act of 2005
- Michael Gilfix & Bernard A. Krooks, Throw Mama From the Train: The Deficit Reduction Act of 2005 Abandons Our Nation's Elders, NYSBA Trusts and Estates Law Section Newsletter, Vol. 39 No. 3, Fall 2006.
Devise
- Definitions
- Types of devises
  - 🖇️ Specific Devise
  - 🖇️ Residuary Devise
Distributee
- Definition of 🔤 distributee.
Dynasty Trust
- 🔑 Even Under Common-Law Rule Against Perpetuities, Trusts Can Last for Over a Century
Economy
- 🖇️ Inflation
Elder Law
- ➡️ The Advocate's Guide to the Medicaid Program: A Must-Have Resource
Estate Administration
- Fiduciaries manage estate complexities and bear the consequences of their decisions. See, e.g., ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
Estate Planning
- ➡️ "I Love You" Will Might Not Show Love to Surviving Spouse
- ➡️ When to Update Your Estate Plan
- 🖇️ Safekeeping Estate Planning Documents
Estates in Land
- Present Interests
- Future Interests
  - Future interests can be created as legal estates in land or as equitable estates in trust.
  - Remainders
    - Vested: A remainder is considered vested if it is not subject to any condition precedent except for the natural expiration of a prior estate.
    - Contingent: It is contingent only if its enjoyment depends on a future event beyond the natural termination of the prior estate.
Ethics
- Ethical Duties of Estate Planners
  - Do estate planners owe duties to beneficiaries?
    - What is the scope of those duties?
    - How does this vary across jurisdictions?
  - Duty of confidentiality vs. transparency to heirs
    - Can estate planners disclose confidential information to beneficiaries?
    - What ethical boundaries exist when discussing client intentions with heirs?
  - Duty to suggest alternatives
    - Should estate planners propose alternative plans if the client’s wishes may lead to family disputes?
    - What are the limits of the planner’s role in guiding decisions?
  - Potential conflicts of interest
    - What should estate planners do when representing multiple family members with differing interests?
    - How should planners navigate loyalty to the client while considering potential claims by beneficiaries?
  - Moral obligations vs. legal duties
    - What happens when a client’s wishes are legally sound but ethically questionable?
    - Should estate planners ever refuse to execute morally controversial estate plans?
  - Duty to prevent future litigation
    - Should estate planners take steps to mitigate potential disputes after the client’s death?
    - Is there an obligation to foresee and address familial tensions during planning?
- Professional Responsibility and Ethical Guidelines
  - How do professional codes of conduct (ABA, state bars) define an estate planner's ethical boundaries?
  - What role does continuing legal education (CLE) play in shaping ethical estate planning practices?
  - Handling client incapacity or undue influence
    - What steps should estate planners take when they suspect a client is being unduly influenced?
    - How can planners ethically assess a client’s mental capacity to make decisions?
- Conflicts between Legal Obligations and Personal Ethics
  - How should estate planners manage situations where legal requirements conflict with personal moral beliefs?
  - What are the consequences of refusing to work on morally objectionable estate plans?
  - Can estate planners ethically withdraw from representation if they disagree with the client’s wishes?
- Transparency in Fee Arrangements
  - How can estate planners ensure their fee structures are ethical and transparent to clients?
  - What are the ethical obligations when discussing fees with clients and beneficiaries?
  - Are there best practices for avoiding fee disputes?
- Balancing Client Autonomy and Ethical Judgment
  - Should estate planners intervene when they believe a client is making a harmful decision?
  - How can planners ensure they respect client autonomy while maintaining ethical standards?
🗓️ Events 🔗
- 🗓️ 3/27/2025 2:30 - 4:00 PM EST: Linda Maryanov's T&E Think Tank Zoom study session -- we will meet David Okorn, Executive Director of the New York Community Trust, and Audra Lewton, Esq., a T&E attorney and NYCT Director of Planned Giving, who will speak about the NYCT and philanthropic giving. Zoom link. Description:
  - "Talking to Your Clients about Charitable Planning: Opportunities and Solutions through Community Foundations
    "Charitable giving-whether during lifetime or through an estate-has many benefits. Of course, there can be income tax and estate tax advantages, and the good feeling of supporting important causes. Include a community foundation in the mix, and you can enhance the benefits of a variety of charitable giving strategies-and give your clients the opportunity to have an even greater impact than they may have imagined. We will discuss how community foundations work and both the tax-smart and heart-smart opportunities they offer for your clients. We'll share specific examples from The New York Community Trust's long history of partnering with attorneys to help craft tailored charitable plans and offer ideas about ways to initiate and advance these conversations with your clients."
- 🗓️ 4/10/2025 2:30 - 4:00 PM EST: Linda Maryanov's T&E Think Tank Zoom study session -- We welcome back Paula M. Jones, Esq., who will speak on International Estate Law. Zoom link.
- 🗓️ 4/24/2025 2:30 - 4:00 PM EST: Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic -- THIS IS OUR FIFTH (5TH!) ANNIVERSARY OF THINK TANK MEETINGS, FIRST STARTED ON APRIL 20, 2020. Zoom link.
- Events Archive
  - 3/13/2025 2:30 - 4:00 PM EST: Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic. See Estate Planning Roundtable: Complex Trusts, Cross-Border Estates, and More.
  - 2/27/2025 2:30 - 4:00 PM EST: Linda Maryanov's T&E Think Tank Zoom study session -- Christina Sammartino, Esq. and Leslie Sultan, Esq., Law Offices of Leslie Sultan, P. C. speak about Supplemental Needs Trusts.
  - 2/13/2025 2:30 - 4:00 PM EST: Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic.
  - 1/30/2025 Complimentary Heckerling Themes Webinar from InterActive Legal.
  - 1/23/2025 Linda Maryanov's T&E Think Tank Zoom study session -- Fundamentals of SSI, SSDI, Medicaid and Medicare Eligibility.
  - 1/22/2025 🗓️ Protecting your ASSets: Medicaid Asset Protection Trusts Explained. Presented by Daniel Miller, Esq. for the New York State Academy of Professional Lawyers. 1 Professional Practice Credit.
  - 12/19/2024 Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic.
  - 11/21/2024 🗓️ Corporate Transparency Act (CTA) and Trusts: "This program will explore many of the implications, issues and open questions about how trust ownership of entities may affect CTA filings." The speakers for this complimentary webinar are Jonathan G. Blattmachr Esq., Alan S. Gassman Esq., Chriseanna Mitchell, and Martin M. Shenkman Esq.
  - 11/21/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic.
  - 11/14/2024: 🗓️ Republican Victory: How Estate Planners Can Stay Relevant and Keep Practice Momentum. The speakers for this complimentary webinar are Martin Shenkman, Esq., Jonathan G. Blattmachr, Esq. and Robert S. Keebler, CPA; and it is sponsored by Peak Trust Company and Interactive Legal Systems (ILS).
  - 11/7/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- New York Transfer on Death Deeds.
  - 10/24/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic.
  - 10/17/2024 🗓️ In-Person Event: Round Table on Nursing Home Problems & Solutions in Pittsford, NY
  - 10/10/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic. • A particularly interesting discussion arose around the treatment of clawed-back gifts in New York estate tax, leading to this post: ➡️ NY Estate Tax: Why Clawed-Back Gifts Don’t Get a Basis Step-Up
  - 9/23/2024 🗓️ Free Webinar for Caregivers: Planning for Long-Term Care Needs in New York
  - 9/19/2024 🗓️ Join the T&E Think Tank: Meet the Chiefs 2024
  - 9/19/2024 🗓️ CLE via Zoom on New York Probate and Transfer on Death Deeds
  - 9/17/2024 🗓️ Complimentary Webinar on Helping More People Navigate the Dementia Journey (InterActive Legal)
  - 9/5/2024 ➡️ Thursday Think Tank: Open Mic
  - 9/5/2024 ➡️ Webinar on the Loper Bright United States Supreme Court Decision
Federal Gift Tax
- Annual Gift Tax Exclusion Per Recipient
  - 2025: $19,000 per donee
  - There’s no gift tax annual exclusion for a gift of a future interest.
- To determine whether a gift reduces the lifetime exemption and/or is reportable, see the flowchart & discussion on Nerd's Eye View (10/9/2024).
Federal Income Tax
- Realization
  - Definition of 🔤 realization.
  - See Sloan G. Speck, The Realization Rule as a Legal Standard, 16 Colum. J. Tax. L. __ (forthcoming 2024) (SSRN link): The realization rule in tax law is a legal standard, not a rule. A constitutional realization requirement could erode tax law from the bottom up and increase complexity.
Fiduciary Investments
- Balancing
  - Fiduciary investmenting requires balancing risk and reward and the interests of current and remainder beneficiaries.
- Resources on Fiduciary Investment
  - Terry L. Turnipseed, Tools for Better Balancing the Interests of Income Beneficiaries and Remaindermen, Tax Management Estates, Gifts and Trusts Journal, 2003.
  - Managing Trusts: Better Decisions in An Uncertain World, Bernstein Investment Research and Management, June 2003.
  - Thomas J. Pauloski & Heather G. Tanguay, Balancing Act: Fiduciary Investment After the Storm, ABA Trust & Investments, Nov.-Dec. 2009.
GA In Terrorem Clause
- Georgia Law on In Terrorem Clauses in Trusts
Genealogy
- NYPL Genealogy Databases
- GEDCOM (GEnealogical Data COMmunication)
  - A widely used data exchange format created by many genealogy programs.
  - GEDCOM Specifications
  - The GEDCOM Standard Release 5.5
  - The GEDCOM Standard 7.0.0-rc1
  - GEDCOM Data Format
  - GEDCOM Form: The Lineage-Linked GEDCOM Form
- Family Tree Heritage
- Steve Little, Artificial Intelligence and Genealogy: Using ChatGPT to Write Stories from Family Trees, Create Trees from Stories, AI Genealogy Insights, March 17, 2023.
Heckerling Institute on Estate Planning
- 2025: 59th Annual Annual Heckerling Institute on Estate Planning (January 13 - January 17)
  - 2026 Tax Cut Sunset: Some tax cuts from the 2017 tax reform are scheduled to sunset in 2026. Preparation can include: (1) Using the exemptions for married couples, (2) gifting to take advantage of the higher exemption amount, and (3) leveraging trusts (such as QTIP and bypass trusts).
  - Business Succession Using Purpose Trusts: Exploration of using purpose trusts to preserve a founder's mission and values.
  - Corporate Transparency Act (CTA): Implications for trusts and trustees under the CTA.
  - Ethics and Diversity: The importance of cultural competence in estate planning and recent ethics cases.
  - International Planning: Addressing the application of non-U.S. trust law to U.S. beneficiaries and expatriation considerations.
  - Planning Strategies: Practical guidance on estate planning for married couples, retirement benefits, charitable giving, and business succession.
  - Recent Developments: Analysis of significant 2024 developments, encompassing judicial decisions and regulatory guidance.
  - Trust Modifications: Techniques such as decanting and non-judicial settlement agreements to modify testamentary documents.
  - Resources
    - Matthew F. Erskine, Key Insights From The 59th Heckerling Institute On Estate Planning: Navigating The Future In 2025 And Beyond, Forbes, Jan. 21, 2025 (Apple News Link).
Inflation
- ➡️ How Does Inflation Impact Your Money?
- See 🖇️ Trump on inflation in his second term as the 47th president of the United States.
Internal Revenue Code (IRC) - Selected Provisions
- Subpart E - Grantors and Others Treated as Substantial Owners
  - ➡️ IRC § 672: Definitions and rules
  - ➡️ IRC § 678: Person other than grantor treated as substantial owner
Intentionally Defective Grantor Trust (IDGT)
- 🔑 The Backdoor Step-Up in Basis for Intentionally Defective Grantor Trusts
IRS Form 706 Estate Tax Return
- About Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, irs.gov.
Joint Bank Accounts
- Reid K. Weisbord & Stewart E. Sterk, Joint Bank Accounts: Who Needs Them?, Rutgers Law School Research Paper Forthcoming, Cardozo Legal Studies Research Paper Forthcoming, Iowa Law Review (forthcoming 2025-26), Feb. 16, 2025 ([SSRN link](https://ssrn.com/abstract=5140081 or http://dx.doi.org/10.2139/ssrn.5140081)).
Kamala Harris
- ➡️ Keebler Highlights Harris Tax Proposals
Lawmatics
- Lawmatics website: https://www.lawmatics.com/pricing/
Legal Fictions
- Resources
  - Study Lon L. Fuller, Legal Fictions (1967).
Life Insurance
- 🔑 NY: Generally, a will cannot change the beneficiaries of a life insurance policy
Limited Liability Company (LLC)
Limited Power of Appointment
- 🖇️ Trust grantor can retain a limited power of appointment.
MA In Terrorem Clause
- Mathilda S. McGee-Tubb & Mirele A. Sagan, Can a beneficiary serve as a witness in a will contest without losing their inheritance? The Massachusetts Appeals Court says yes., Mintz, Nov. 8, 2024.
MA Principal and Income Act (MPIA)
- Power to Adjust
  - The MPIA "permit[s] a trustee of trusts having an income beneficiary and remainder beneficiaries to adjust between principal and income after he pursued a total growth strategy that disproportionately increased trust principal relative to trust income." Matter of Kline, No. SJC-13579 (MA Supreme 2024)..
Married Couples
- ➡️ "I Love You" Will Might Not Show Love to Surviving Spouse
- Anthony C. Infanti, Ten Years After Windsor and Obergefell: The Tax Inequalities of Marriage Equality, U. of Pittsburgh Legal Studies Research Paper No. 2025-08, Feb. 24, 2025 (SSRN link.
Medicaid
- Generally
  - Means-tested program (asset and income)
  - Payer of last resort
- Eligibility
- New York MAGI Medicaid - ACA
- Long Term Care
- New York Non-MAGI Medicaid - Resource and Income Limits
  - Applicant
    - Assets
      - Nonexempt Assets
      - Exempt Assets
        
        Home equity - $1,097,000 in 2025
        
        Irrevocable funeral/burial arrangements
        
        Qualified retirement accounts if in payout status
    - Monthly Income
  - Spouse
    - Community Spouse Resource Allowance (CSRA)
    - Minimum Monthly Maintenance Needs Allowance (MMMNA)
    - NY has spousal refusal
MyCase
- MyCase website: https://www.mycase.com/
- MyCase API
  - MyCase's API is available only in the Advanced subscription.
  - MyCase API Documentation
New York City
- NYC narrowly avoided bankruptcy in 1975. See Jeff Nussbaum, The Night New York Saved Itself from Bankruptcy, New Yorker, Oct. 16, 2015.
NY Absentee
- Rebecca T. Goldberg, Proposal to Amend EPTL § 2-1.7(a), NYSBA Trusts and Estates Law Section Newsletter, Vol. 46 No. 1, Spring 2013.
NY Ademption
- What Is Ademption?
- What Can Cause Ademption?
  - Sale
  - Satisfaction
- Admeption by Sale
- Ademption by Satisfaction
- Partial Ademption
- Tracing Proceeds
- Statutory Exception to Ademption
  - ➡️ EPTL 3-4.4: Exception to Ademption for Property Transferred by Guardian
- Exceptions in Wills
  - Mary Kay Lundwall, The Case against the Ademption by Extinction Rule: A Proposal for Reform, 29 Gonz. L. Rev. 105 (1993).: "If the testator has expressly provided for a gift of the proceeds of a sale or an alternate sum of money, those preferences will, of course, be given effect."
NY Administrator C.T.A.
- Generally: 🖇️ Definitions for administrator c.t.a.
- Renunciation of Letters of Administration C.T.A.
  - 🔑 Sample Renunciation of Letters of Administration C.T.A. and Waiver of Process (SCAP 1418)
NY Adverse Possession
- ➡️ Elements of adverse possession.
- See ➡️ NY: Challenging Adverse Possession in Estate Administration—Lessons from Matter of Elliott
NY Affirmations
- Deciphering the Confusion: Understanding New York's Two New Rules on Affirmations
NY Beneficiary Designation
- Definition: ➡️ beneficiary form. EPTL 13-4.1(a).
- A will can revoke or amend a beneficiary designation. ➡️ EPTL 13-4.6(b).
- 🔑 Generally, a will cannot change the beneficiaries of a life insurance policy
NY Capacity
- 🔑 Competence Is Presumed; Party Asserting Incapacity Must Prove It
- 🔑 Alzheimer’s Patients Not Presumed Incompetent; Incompetence Must Be Proven at Transaction Time
- ➡️ Guardian Cannot Amend Revocable Trust When Capacity Is Required for Amendment
NY Charitable Trusts
- 🔑 Navigating Attorney General Requirements for Wholly Charitable Testamentary Trusts
NY Choice of Law Clause
- 🔑 State Selected In Choice of Law Clause Governs Substantive Issues, Procedural Matters Governed by Forum State
NY Civil Practice Rules (CPLR)
- ➡️ CPLR 3102: Method of Obtaining Disclosure
- ➡️ CPLR Rule 3211: Motion to Dismiss
- ➡️ CPLR Rule 3217: Voluntary Discontinuance
NY Conflict of Laws
- Definition of 🔠 conflict of laws.
- 🔑 Forum State Determines Whether Question Is Procedural or Substantive
- 🔑 Statutes of Limitations are Procedural
NY Construction Proceeding
- 🔑 NY: Surrogate's Court Cannot Interpret Will Before Probate
- 🔑 Construction Proceeding Does Not Violate In Terrorem Clause
- 🔑 Executor’s Adversarial Position in Construction Proceeding Bars Charging Legal Fees to Estate
NY Cooperative Apartments (COOPs)
- ➡️ NY TOD Deed: Not for Coops
NY Contracts Relating to Wills
- 🖇️ NY Joint Will
- 🖇️ NY Mutual Reciprocal Wills
NY Delegation by Trustee
- SCPA 2115: Review of costs of delegation by trustee
NY Discovery
- Methods of Obtaining Disclosure - CPLR 3102
  - Disclsoure Devices: CPLR 3102(a) permits information to be obtaining by one or more of the following disclosure devices:
    - Depositions upon oral questions
    - Depositions without the state upon written questions
    - Interrogatories
    - Demands for addresses
    - Discovery and inspection of documents or property
    - Physical and mental examinations of persons
    - Requests for admission
  - Discovery Methods: CPLR 3102(b) governs disclosure methods.
    - CPLR 3102(b) identifies three disclosure methods, unless otherwise provided by the civil practice law and rule or by the court:
      - Stipulation
      - On notice
      - By leave of the court
    - CPLR 3102(b) states that disclsoure is generally obtained by stipulation or on notice iwthout leave of court.
  - Before Action Commenced: CPLR 3102(c) allows disclosure even before an action is started but only by court order.
    - CPLR 3102(c) identifies the reasons for pre-action disclosure:
      - To aid in brining an action
      - To preserve information
      - To aid in arbitration
    - CPLR 3102(c) states that acourt may appoint a referee to take testimony.
  - After Trial: CPLR 3102(d) states that after a trial is commenced, dislcosure can only be obtained by court order on notice, unless CPLR 5223 provides otherwise.
  - Actions Pending in Another Jurisdiction: CPLR 3102(e) governs diclosure when an action is pending in another jurisdiction.
  - Action to Which States Is Party: CPLR 3102(f) states that when the state is a party (whether as plaintiff, defendant or otherwise), disclosure by the state will be available as if the state were a private person.
  - Discovery in Probate Proceedings
    - 22 NYCRR § 207.27: ➡️ Uniform Rules for Surrogate’s Court § 207.27 usually imposes a five-year discovery period in contested probate proceedings, but courts may extend this period beyond the limit if “special circumstances” are demonstrated.
      - See 🔑 NY: Discovery Time Limit In Probate Proceedings.
      - See NY: Probate Discovery Limits Upheld in Matter of Landau
    - SCPA 1404 pre-objection discovery: SCPA 1404 permits limited depositions of witnesses and document production in probate proceedings.
    - Probate Discovery Limits Upheld in Matter of Landau
NY Equitable Doctrine of Substituted Judgment
- Courts apply this doctrine to determine whether to approve a gift on behalf of persons who lack the capacity to handle their own affairs.
- The doctrine of substituted judgment is available in a Mental Hygiene Law Article 81 guardianship. See MHL 81.21.
- Courts disagree on whether the doctrine of substituted judgment is available in a SCPA Article 17-A guardianship.
  - SCPA Article 17-A does not have a list of factors like that available for an Article 81 guardianship in MHL 81.21.
  - Not Available in New York County Surrogate's Court: In Matter of John J.H., Surrogate Glen held that the court cannot exercise substituted judgment on behalf of article 17-A wards who never had the capacity to handle their own affairs and that an Article 81 guardianship would be required.
  - Available in Bronx County Surrogate's Court: In Matter of Joyce G.S., 913 N.Y.S.2d 910 (Sur. Ct. Bronx Co. 2010), Surrogate Holzman held "that, under the law as it presently exists, it has the power to invoke the equitable doctrine of substituted judgment to approve gifts or tax saving transactions on behalf of article 17-A wards.").
NY Equitable Estoppel
NY Estate Tax
- ➡️ NY Estate Tax: Why Clawed-Back Gifts Don’t Get a Basis Step-Up
- Sinkhole
  - Resources on the NY Estate Tax Sinkhole
    - Paul S. Forster & Laurence Keiser, The New York State Estate Tax Regime and the Santa Clause Revisited: It Only Gets Worse On or After January 1, 2019, NYSBA Trusts and Estates Law Section Newsletter, Vol. 50 No. 4, Winter 2017.
NY Estates, Powers and Trusts Law (EPTL) 🔗
- Article 1: General Provisions
  - Part 1: Short Title: How Cited; References; Severability; Application
    - EPTL 1-1.1 Short title; how cited
    - EPTL 1-1.2 References
    - EPTL 1-1.3 Rules governing use of certain words
    - EPTL 1-1.4 Severability
    - EPTL 1-1.5 Application
  - Part 2: Definitions
    - EPTL 1-2.1 Codicil
    - EPTL 1-2.2 Creator
    - EPTL 1-2.3 Demonstrative disposition
    - EPTL 1-2.4 Disposition
    - EPTL 1-2.5 Distributee
    - EPTL 1-2.6 Estate
    - EPTL 1-2.7 Fiduciary
    - EPTL 1-2.8 General disposition
    - EPTL 1-2.9 Incompetent
    - EPTL 1-2.9-A Infant or minor
    - EPTL 1-2.10 Issue
    - EPTL 1-2.11 Per capita
    - EPTL 1-2.12 Person
    - EPTL 1-2.13 Personal representative
    - EPTL 1-2.14 Per stirpes
    - EPTL 1-2.15 Property
    - EPTL 1-2.16 Representation
    - EPTL 1-2.17 Specific disposition
    - EPTL 1-2.18 Tetamentary beneficiary
    - EPTL 1-2.19 Will
    - ➡️ EPTL 1-2.20 Lifetime trust
- Article 2: Rules Governing Dispositions Subject to This Law
  - Part 1: Substantive Rules Governing Dispositions
    - EPTL 2-1.1 Heirs at law and next of kin defined
    - EPTL 2-1.2 Issue to take per capita, per stirpes or by representation
    - EPTL 2-1.3 Adopted children and posthumous children as members of a class
    - EPTL 2-1.4 Words of inheritance unnecessary
    - EPTL 2-1.5 Advancements and their adjustment
    - EPTL 2-1.6 Disposition of property where a person dies within on hundred twenty hours of another person or any other event
    - EPTL 2-1.7 Presumption of death from absence; effect of exposure to specific peril
      - ➡️ Text of EPTL 2-1.7 and some 🔑 notes.
    - EPTL 2-1.8 Apportionment of federal and estate or other death taxes; fiduciary to collect taxes from property taxed and transferees thereof
    - EPTL 2-1.9 Distributions in kind by executors and trustees
    - EPTL 2-1.10 Provisions relating to infants and minors
    - EPTL 2-1.11 Renunciation of property interests
    - EPTL 2-1.12 Credit shelter formula bequests
    - EPTL 2-1.13 Certain formula clauses to be construed to refer to the federal estate and generation-skipping transfer tax laws applicable to estates of decedents dying after December thirty-first, two thousand nine and before January first, two thousand eleven
    - EPTL 2-1.14 Right to recover state estate and gift taxes where decedent retain interest
    - EPTL 2-1.15 Consequences of partly ineffective dispositions of trust principal to two or more beneficiaries
- Article 3: Substantive Law of Wills
  - Part 1: Who May Make and Receive Testamentary Dispositions of Property; What Property May Be Disposed of By Will
  - Part 2: Execution of Wills
  - Part 3: Rules Governing Testamentary Dispositions
    - 🔑 EPTL 3-3.5: Conditions Qualifying Dispositions; Conditions Against Contest; Limitations Thereon
  - Part 4: Revocation of Wills and Related Subjects
    - ➡️ EPTL 3-4.4: Conveyance of property of an incompetent or conservatee, previously disposed of specifically by will, not revocation or ademption
  - Part 5: Rules Governing Wills Having Relation to Another Jurisdiction
- Article 4: Descent and Distribution of an Intestate Estate
- Article 5: Family Rights
  - Part 1: Rights of Surviving Spouse
    - ➡️ EPTL 5-1.4: Revocatory effect of divorce, annulment or declaration of nullity, or dissolution of marriage on disposition, appointment, provision, or nomination regarding a former spouse
  - Part 3: Rights of Family Unit
  - Part 4: Rights of Members of Family Resulting from Wrongful Act, Neglect or Default Causing Death of Decedent
- Article 6: Classification, Creation, Definition Of, and Rules Governing Estates in Property
- Article 7: Trusts
  - Part 1: Rules Governing Trusts
    - EPTL 7-1.1 When trust interests not to merge
    - EPTL 7-1.2 Trustee of passive trust not to take
    - EPTL 7-1.3 Purchase-money resulting trust abolished
    - EPTL 7-1.4 Purposes for which trust may be created
    - EPTL 7-1.5 When trust interest inalienable; exception
    - EPTL 7-1.6 Application of principal to income beneficiary
    - EPTL 7-1.7 Interest remaining in creator of trust
    - EPTL 7-1.8 Duration of trust for benefit of creditors
    - EPTL 7-1.9 Revocation of Trusts
    - EPTL 7-1.10 Provision by non-domiciliary creator as to law to govern trust
    - EPTL 7-1.11 Application of principal to creator of trust as reimbursement
    - ➡️ EPTL 7-1.12 Supplemental needs trusts established for persons with severe and chronic or persistent disabilities
      - ➡️ Understanding EPTL 7-1.12: Third-Party and Self-Settled Supplemental Needs Trusts in New York
      - See 🖇️ New York Supplemental and Special Needs Trusts
    - EPTL 7-1.13 Division of trusts and establishment of separate trust
    - EPTL 7-1.14 Who may make a lifetime trust
    - EPTL 7-1.15 What property may be disposed of by lifetime trust
    - EPTL 7-1.16 Revocation of lifetime trust by will
    - EPTL 7-1.17 Execution, amendment and revocation of lifetime trusts
    - [EPTL 7-1.18 Funding of lifetime trust(https://www.willstrustsestates.info/why-you-need-to-ensure-your-new-york-revocable-trust-has-title-to-your-assets/#eptl-7-1-18)
    - EPTL 7-1.19 Application for termination of uneconomical trust
  - Part 2 Rules Governing Trustees
    - EPTL 7-2.1 Extend of trustee's estate
    - EPTL 7-2.2 When estate of trustee ceases
    - EPTL 7-2.3 Trust estate not to descend on death of trustee; appointment, duties and rights of successor trustee
    - EPTL 7-2.4 Act of trustee in contravention of trust
    - EPTL 7-2.5 Suspension of powers of trustee in war service
    - ➡️ EPTL 7-2.6 Resignation, suspension or removal of trustee
    - EPTL 7-2.7 Accounting by trustee in supreme court
    - EPTL 7-2.8 Commissions of trustee to sell real property for benefit of creditors
  - Part 3 Rights of Purchasers, Creditors and Other Persons
  - Part 5 Bank Accounts in Trust Form
  - Part 6 Uniform Transfers to Minors Act
  - Part 7 Child Performer Trust Account
  - Part 8 Honorary Trusts For Pets
- Article 8: Charitable Trusts
- Article 9: Perpetuities and Accumulations
- Article 10: Powers
- Article 11: Fiduciary: Powers, Duties and Limitations; Actions By or Against in Representative or Individual Capacities
  - ➡️ EPTL 11-1.1: Fiduciaries' Powers
  - ➡️ EPTL 11-1.7: Limitation on Powers and Immunities of Executors and Trustees
- Article 11-A: Uniform Principal and Income Act
- Article 12: Actions By Creditors and Other Persons Against Distributees and Testamentary Beneficiaries
- Article 13: Other Provisions Affecting Estates
  - Part 1: Assets of Decedent's Estate
  - Part 2: Statute of Frauds Requirements
  - Part 3: Miscellaneous Provisions
  - Part 4: Transfer-on-death Security Registration
    - EPTL 13-4.1 Definitions
      - ➡️ EPTL 13-4.1(a) defines "beneficiary form."
    - EPTL 13-4.2 Registration in beneficiary form; sole or joint tenancy
    - EPTL 13-4.3 Applicable law
    - EPTL 13-4.4 Origination or registration in beneficiary form
    - EPTL 13-4.5 Form of registration in beneficiary form
    - EPTL 13-4.6 Effect of registration in beneficiary form
      - ➡️ EPTL 13-4.6(b) allows testators to revoke or amend a beneficiary designation.
    - EPTL 13-4.7 Ownership on death of owner
    - EPTL 13-4.8 Protection of registering entity
    - EPTL 13-4.9 Nontestamentary transfer on death
    - EPTL 13-4.10 Terms, conditions, and forms
    - EPTL 13-4.11 Rules of construction
    - EPTL 13-4.12 Application
- Article 13-A: Administration of Digital Assets Summary of Article
- Article 14: Repealer; Derivation and Distribution Tables; Effective Date
NY Executor
- Unresponsive executor
  - If a nominated executor becomes unresponsive before the probate petition, then a lawyer who is safekeeping their client's will can 🔑 file the will in court.
- Powers of executors
- Duties
  - Executor has a duty of impartiality
    - An executor "owes an absolute duty of impartiality to all the beneficiaries of the estate." Estate of Muller, 24 N.Y.2d 336 (1969) (surcharging executor-legatee for advances from the estate with interest for the time he had the use of the estate funds because "[a]n executor must at all times discharge his fiduciary duties so that all legatees are treated in like manner and without prejudice or discrimination.").
- Surcharge of executor
  - Estate of Muller, 24 N.Y.2d 336 (1969): Where an executor-legatee made avances from an estate, thereby violating the executor's "absolute duty of impartiality to all the beneficiaries of the estate," the executor was surcharged with interest for the time he had the use of the estate funds because "[a]n executor must at all times discharge his fiduciary duties so that all legatees are treated in like manner and without prejudice or discrimination.").
- Legal fees & executors
  - 🔑 Executor’s Adversarial Position in Construction Proceeding Bars Charging Legal Fees to Estate
NY Family Exemption
- [🔑 NY: Petition to Compel Set Off of Family Exemption (Sample from Rockland County)(https://www.willstrustsestates.info/ny-petition-to-compel-set-off-of-family-exemption-sample-from-rockland-county-2/)
NY Fiduciaries
- Definitions
- Fiduciary Responsibilities
  - Fiduciaries are responsible for making decisions and may face personal liability for their actions. See ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
- Judicial Oversight of Fiduciaries
  - Courts oversee fiduciary actions but do not substitute their judgment for that of the fiduciary. See ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
NY Fiduciary Accounting
- 🔑 Computer Programs for Preparing Surrogate's Court Accounting
- Accounting Proceeding
  - Burden of Proof Is on Accounting Fiduciary
  - Compulsory Accounting Proceeding
    - Surviving Spouse Can Commence Compulsory Accounting
      - Executor Can Object to Compulsory Accounting By Alleging Surviving Spouse Lacks Standing
  - Standing: Who has standing in an accounting proceeding?
NY Duty of Impartiality
- 🖇️ Executor owes an absolute duty of impartialtiy to all beneficiaries.
- “[A] state statute that permits the trustee to make adjustments between income and principal to fulfill the trustee’s duty of impartiality between the income and remainder beneficiaries is generally a reasonable apportionment of the total return of the trust,” and thus ordinarily will be respected for federal income tax purposes. Treas. Reg. § 1.643(b)-1.
NY Trustee's Duty of Loyalty
- Self-Dealing
- Commingling
- Overreaching
- Impartiality
- Resources on the Duty of Loyalty in New York
  - 2 NY Practice Guide: Probate & Estate Admin § 26.01 Duty of Loyalty (🔒 Lexis Link)
NY Guardianship: Article 81
- ➡️ Guardian Cannot Amend Revocable Trust When Capacity Is Required for Amendment.
- Guardianship services for nursing home: 🔑 Sample language in retainer agreement.
NY Historic District for Home
- ➡️ How to Find Your Home’s Historic District in New York: A Step-by-Step Guide
NY In Terrorem Clause
- When Enforceable?
  - 🔑 NY: In Terrorem Clauses Enforceable Whether or Not a Gift Over Exists
- Whether a no-contest clause is triggered: Which actions trigger an in terrorem clause?
  - Safe Harbors
    - 🔑 Construction Proceeding Does Not Violate In Terrorem Clause
- Nicole L. Johnson, No One Can Contest a New York Will If It Includes an In Terrorem Clause. Right? Right?!?!?!!?, National Review, Dec. 23, 2024.
NY Incorporation By Reference
- Applies to wills, but not lifetime trusts.
  - Matter of Jakobson, 169 Misc. 2d 630 (N.Y. Sur. Ct. Nassau Co. 1996): "It is clear on review by this court that the doctrine of incorporation by reference applies to wills (Booth v Baptist Church of Christ, 126 N.Y. 215) and not inter vivos trusts which are contractual agreements as opposed to testamentary instruments."
NY Insolvent Estate
- Frank T. Santoro, Guideposts in Addressing Claims in a Potentially Insolvent Estate, NYSBA Trusts and Estates Law Section Newsletter, Vol. 46 No. 1, Spring 2013.
NY Irrevocable Trust
- Uses of Irrevocable Trusts
  - Asset Protection
  - Charitable Planning
  - Estate Planning
  - Elder Law Planning (Long-Term Care Planning)
    - See 🖇️ NY Medicaid Asset Protection Trust (MAPT).
  - Retirement Planning
  - Tax Planning
- Funding a Lifetime Irrevocable Trust
  - ➡️ Why You Need to Ensure Your New York Revocable Trust Has Title to Your Assets - Discusses EPTL 7-1.18.
- 🔑 Real Property in Irrevocable Trust: Beneficiaries Don’t Own the Real Property
NY Joint Venture
- "[A]s a general proposition, absent an agreement to the contrary, partners, joint venturers, and tenants in common look solely to the appreciation of their interest in the endeavor for their financial rewards, and are not entitled to separate compensation for services rendered (see, Levy v Leavitt, 257 N.Y. 461, 467; Myers v Bolton, 157 N.Y. 393, 399)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
NY Joint Will
NY Landlord & Tenant
- ➡️ New Notice of Petition and Petition in Summary Landlord & Tenant Proceedings
- Deceased Tenant
  - ➡️ RPL § 236-A Termination of lease of a deceased tenant
- New York City Marshals Handbook of Regulations, April 24, 2013.
NY Law of the Case
- "The law of the case doctrine is part of a larger family of kindred concepts, which includes res judicata (claim preclusion) and collateral estoppel (issue preclusion). These doctrines, broadly speaking, are designed to limit relitigation of issues. . . . . As distinguished from issue preclusion and claim preclusion . . . law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment." People v. Evans, 94 N.Y.2d 499, 502 (2000) (citations omitted, emphasis in original).
- "[I]t does not foreclose reexamination of a question where there is a showing of subsequent evidence (see Applehole v Wyeth Ayerst Labs., 213 AD3d 611 [1st Dept 2023]) . . . ." Matter of Hoppenstein v. Hoppenstein, 225 AD 3d 489 (NY App. Div. 1st Dept. 2024).
- "[I]t only to legal determinations that were necessarily resolved on the merits in the prior decision (see 47 E. 34th St. [NY] L.P. v BridgeStreet Worldwide, Inc., 219AD3d 1196, 1201 [1st Dept 2023]; Metropolitan Steel Indus., Inc. v Perini Corp., 36 AD3d 568, 570 [1st Dept 2007]). The court's July 29, 2019 decision denying the prior motion for summary judgment was based on providing objectants with the opportunity to obtain discovery, and the decision did not resolve the issues on the merits." Matter of Hoppenstein v. Hoppenstein, 225 AD 3d 489 (NY App. Div. 1st Dept. 2024).
NY Legal Fees in Litigation
- 🔑 Executor’s Adversarial Position in Construction Proceeding Bars Charging Legal Fees to Estate
NY Life Estate
- ➡️ NY: When Executors Have No Authority Over Real Estate – Lessons from In re Purdy
NY Lifetime Trusts
- NY SCPA 207: Lifetime Trusts; Jurisdiction and Venue
NY Limited Liability Company (LLC) 🔗
- Membership Interest in an LLC Is Personal Property
- 🔑 LLC Management and MAPTs: Balancing Control and NY Medicaid Eligibility
- Assignment of Membership Interest
  - Assignable? Are membership interests assignable?
    - Default Rule: Membership interests are assignable in whole or in part. LLCL § 603(a)(2).
    - Exception: Operating agreement can override the default. LLCL § 603(a).
  - Effect of Assignment?
    - Dissolution? Does an assignment of membership interests cause a dissolution?
      - Default Rule: No dissolution. LLCL § 603(a)(2).
      - Exception: Operating agreement can override the default. LLCL § 603(a).
      - Sample Clause: Example of a 🔑 clause from an Operating Agreement treating assignment as dissolution.
    - Management (Vote)?
      - Default Rules:
        
        Assignee does not participate in management. LLCL § 603(a)(2), 603(a)(3).
        
        Assignor can no longer participate in management because "a member ceases to be a member and to have the power to exercise any rights or powers of a member upon assignment of all of his or her membership interest." LLCL § 603(a)(4).
      - Exception: Operating agreement can override the default. LLCL § 603(a).
    - Profits and Losses? What happens to the distributions and allocations of profits and losses?
      - Default Rule: Assignee gets assignors share of profits and losses. LLCL § 603(a)(3).
      - Exception: Operating agreement can override the default. LLCL § 603(a).
  - What Does Assignee Get? As outlined below, the default rule is that the assignee only gets the assignor's share of distributions and allocations of profits and losses. LLCL § 603(a)(3). But the operating agreement can override this default. LLCL § 603(a).
    - Distributions and Allocation of Profits and Losses?
      - Default: Yes. LLCL § 603(a)(3).
      - Exceptions:
        
        Operating agreement can override the default. LLCL § 603(a).
        
        Assigneed becomes a member per LLCL § 604(a). See 🔑 How an LLC Assignee Becomes a Member Under NY Law.
    - Liabilities?
      - Default: No, not until the assignee becomes a member. LLCL § 603(c).
      - Exceptions:
        
        Assumption agreement can override the default. LLCL § 603(c).
        
        Operating agreement can override the default. LLCL § 603(c).
        
        Assigneed becomes a member per LLCL § 604(a). See 🔑 How an LLC Assignee Becomes a Member Under NY Law.
    - Management?
      - Default: No. LLCL § 603(a)(2).
      - Exception: Operating agreement can override the default. LLCL § 603(a).
    - Member? Does the assignee become a member?
      - Default: No. LLCL § 604(a).
      - Exceptions:
        
        Operating agreement can override the default. LLCL § 604(a).
        
        Members other than assignor can vote or consent by writing to admit the assignee as a member. LLCL § 604(a).
      - For more information, see 🔑 How an LLC Assignee Becomes a Member Under NY Law.
    - Participate in Affairs?
      - Default: No. LLCL § 603(a)(2).
      - Exceptions:
        
        Operating agreement can override the default. LLCL § 603(a).
        
        Assigneed becomes a member per LLCL § 604(a). See 🔑 How an LLC Assignee Becomes a Member Under NY Law.
    - Powers of Members?
      - Default: No. LLCL § 603(a)(2).
      - Exceptions:
        
        Operating agreement can override the default. LLCL § 603(a).
        
        Assigneed becomes a member per LLCL § 604(a). See 🔑 How an LLC Assignee Becomes a Member Under NY Law.
    - Rights of Members?
      - Default: No. LLCL § 603(a)(2).
      - Exceptions:
        
        Operating agreement can override the default. LLCL § 603(a).
        
        Assigneed becomes a member per LLCL § 604(a). See 🔑 How an LLC Assignee Becomes a Member Under NY Law.
  - Resources
- Certificate of Membership? See LLCL § 603(b).
- Member Dies. See 🔑 NY: What Happens When an LLC Member Dies or Becomes Incompetent?.
- Member Becomes Incompetent. See 🔑 NY: What Happens When an LLC Member Dies or Becomes Incompetent?.
- Operating Agreement
  - 🔑 Form: Simple LLC Operating Agreement for One Member
NY Kiniship Proceedings in Surrogate's Court 🔗
- 🔑 NY: Sample Kinship Affidavit for Non-Marital Children of a Male Decedent
NY Matrimonial Law
- ➡️ New York County Supreme Court Grants Unsealing of Matrimonial Case File for Deceased Father’s Daughter
NY Medicaid Asset Protection Trust (MAPT)
- Generally
  - ➡️ Definition
- Benefits of a MAPT
  - Medicaid Planning: A New York Medicaid Asset Protection Trust (MAPT) safeguards assets from being counted towards Medicaid eligibility after a lookback period. This trust also protects assets from Medicaid recovery after the grantor’s death, preserving them for loved ones. See ➡️ The Primary Purpose of a NY Medicaid Asset Protection Trust (MAPT).
  - Avoid probate
  - Tax savings are possible
    - Grantor trust
    - Stepped up basis
- Structuring the MAPT
  - ➡️ IF appreciated (i.e., low basis) THEN estate tax inclusion FOR stepped-up basis
- 🔑 Clause: Statement of Intent in a Medicaid Asset Protection Trust
- 🔑 Clause: Residence Provisions in Medicaid Asset Protection Trust
- 🔑 LLC Management and MAPTs: Balancing Control and NY Medicaid Eligibility
- 🔑 Form: Annotated Medicaid Asset Protection Trust
- Resources
  - Christina Lamm, A Tax Map to Your MAPT, NYSBA Elder and Special Needs Law Journal, Vol. 31, No.3, 2021.
NY Motion to Dismiss Complaint
- NY CPLR Rule 3211: Motion to Dismiss
- Insufficient Complaint: If the complaint does not state a cause of action.
  - 🔑 NY: Affidavits Irrelevant in Motion to Dismiss Based on Complaint’s Sufficiency
- Court’s Review Process: What does the court consider when reviewing the motion?
  - 🔑 NY: Affidavits Irrelevant in Motion to Dismiss Based on Complaint’s Sufficiency
NY Mutual Reciprocal Wills
NY Partnership
- "Partners, however,and particularly managing partners, owe a fiduciary duty to the other partners (see, Meinhard v Salmon, 249 N.Y. 458, 468)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
- "[A]s a general proposition, absent an agreement to the contrary, partners, joint venturers, and tenants in common look solely to the appreciation of their interest in the endeavor for their financial rewards, and are not entitled to separate compensation for services rendered (see, Levy v Leavitt, 257 N.Y. 461, 467; Myers v Bolton, 157 N.Y. 393, 399)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
NY Preliminary Executor
- Role of Preliminary Executor
  - "A preliminary executor is charged with marshalling assets not distribution of estate assets. Paramount to the court is that estate assets be preserved." Estate of Theodore Cohn, File 2023-838/B, (NY Sur. Ct., NY County, decision dated March 7, 2025).
- When Bond Required
  - A court can require a bond in specific circumstances, notwithstanding contrary language in a will.
    - Estate of Theodore Cohn, File 2023-838/B, (NY Sur. Ct., NY County, decision dated March 7, 2025): "Here, the Respondent has failed to appear in court after being duly cited, has not provided the court with a change of address and as per the statements provided by Respondent to petitioner appears to have exceeded the scope of his duties as a preliminary executor pending final probate of the will. To ensure that the estate assets are preserved, the Court directs that Respondent obtain a bond, notwithstanding language, in the will waiving a bond (Estate of Laurence J. Gold, 2001 NYLJ LEXIS 2639). The bond to be posted is set at Three Million Two Hundred Fifty Thousand and 00/00 ($3,250,000)."
- Revocation of Preliminary Letters by Court
  - Estate of Theodore Cohn, File 2023-838/B, (NY Sur. Ct., NY County, decision dated March 7, 2025): "With respect to revocation of the preliminary letters issued to Respondent, 'courts are required to exercise the power of removal sparingly and to nullify the testator’s choice only upon a clear showing of serious misconduct that endangers the safety of the estate' (Matter of Farber, 98 AD2d 720, quoting Matter of Israel, 64 Misc 2d 1035, 1043). Although the allegations of Petitioners, if proven true, could render Respondent to have endangered the safety of the estate and could deem him ineligible to continue to manage the estate or receive full letters testamentary, the court is not bound by conclusory allegations of the petitioner (Matter of Vermilye, 101 A.D.2d 865, 475 NYS 2d 888). The court directs that the Respondent’s preliminary letters are limited to collection of assets only, not distribution of assets."
- When Court Will Appoint Administrator C.T.A. Instead of Preliminary Exeuctor
  - Estate of Theodore Cohn, File 2023-838/B, (NY Sur. Ct., NY County, decision dated March 7, 2025): "Petitioner requests that in the alternative, Respondent’s letters be revoked and that an administrator C.T.A. be appointed. Such relief shall not be granted absent an evidentiary hearing setting forth further evidence of Respondent’s misconduct or inability to handle the estate, his opportunity to respond and upon the qualifications of the proposed successor preliminary executor being shown, which were not set forth in their affirmations. Therefore, Petitioner’s request to revoke and appoint an administrator CTA is denied and a hearing before the court shall be conducted."
NY Probate
- NY has solemn form probate.
- Courts will admit a will to probate even when its terms are unenforceable. See Matter of Murray, 84 A.D.3d 106, 921 N.Y.S.2d 161 (2d Dep’t 2011).
NY Probate Decree
- 🔑 NY County Surrogate's Court: Sample Decree Granting Probate
NY Probate Petition
- SCPA 304: Contents of Petition
NY Probate Retainer
- 🔑 Sample Hourly Retainer Agreement for Probate of a New York Estate
NY Powers of Appointment
- 🔑 Explanation of New York EPTL § 6-5.2: Power of Appointment Not to Prevent Vesting
- 🔑 Takers in Default of a Power of Appointment Have Standing in Accounting Proceeding
NY Power of Attorney
- Flaws in New York's Power of Attorney Law
  - Treats the agent as a fiduciary, but . . .
    - the principal can allow the agent to delegate all duties
    - some agents (such as a spouse) can commingle assets with the principal
- Modifications
  - Annuities
  - Beneficiary Designations
  - Business Activities
  - Business Succession Agreements
  - Caregiver Agreements
  - Compensation and Reimbursement to Agent
  - Companionship
  - Credit Cards
  - Deal with Tax Authorities
  - Domestic Pets
  - Domicile
  - Disclaimers and Statutory Elections
  - Duty to Account
  - Employment of Professionals
  - Enforcement Proceedings
  - Estate Transactions
  - Estate and Long Term Care Planning
  - Fixtures and Personality
  - Gifting Powers
  - Gift-Splitting
  - Government Agencies and Benefits
  - HIPAA Auhtorization
  - Insurance Transactions
  - Intent to Return Home
  - Loans and Notes
  - Marital Agreements and Designating of Spouse as Agent
  - Nomination of Guardian
  - Online Accounts, Digital Assets, and Digital Devices
    - Online Accounts
    - Digital Assets
    - Digital Devices
  - Ownership and Rights of Survivorship
  - Powers of Appointment
  - Qualified Plans
  - Reimbursement of Health Care Agent
  - Safe-Deposit Boxes
  - Spiritual and Religious Needs
  - Trusts
  - U.S. Mail
NY Power to Adjust (NY-PTA)
- New York's prudent investor standard (EPTL 11-2.3(b)) also authorizes the power to adjust under EPTL 11-2.3(b)(5). See ➡️ this post.
- ➡️ EPTL 11-2.3(b)(5): Nomenclature
- 🔑 EPTL 11-2.3(b)(5) Adjustments Must Be Reflected in Accounting
- A trustee-beneficiary cannot exercise the NY-PTA.
- GST-exempt is status not affected by equitable adjustments. PLR 200609003 (PDF)
NY Prudent Investor Act (NY-PIA) - EPTL 11-2.3
- Effective for any investment made or held on or after January 1, 1995 by a trustee. EPTL 11-2.3(a).
- Enacts the prudent investor rule. EPTL 11-2.3(a).
  - "incorporates basic principles of Restatement 3d, Trusts, Prudent Investor Rule, as adopted and promulgated by the American Law Institute on May 18, 1990." EPTL-SCPA 3rd Report.
- Resources on the NY-PIA
  - Georgiana J. Slade, The Trustee in the New Millennium, NYSBA Trusts and Estates Law Section Newsletter ( Vol. 36, No. 1 Spring 2003).
NY Punitive Damages
- 🔑 Punitive Damages Require a Substantive Cause of Action
NY Remainder Beneficiaries
- 🔑 Remainder Beneficiaries of a Trust Have Standing in an Accounting Proceeding
NY Renunciation
- 🖇️ Renunciation of Letters of Administration C.T.A.
- Renunciation of Property Interests
  - EPTL 2-1.11
    - Added L 1977, ch 861, § 3
    - Amended L 1978, ch 60, § 1, effective April 11, 1978
    - Amended L 1978, ch 67, § 45
    - Amended L 1980, ch 417, § 32, effective June 23, 1980
    - Amended L 1980, ch 570, § 1, effective June 26, 1980
      - Bill Jacket - L 1980, ch 570
    - Amended L 1992, ch 595, § 5
    - Amended L 1993, ch 515, § 2, effective Jan 1, 1994
    - Amended L 2003, ch 589, § 1, effective Sept 1, 2003
    - Amended L 2005, ch 325, § 4, effective Jan 1, 2006
    - Amended L 2010, ch 27, § 1, effective Jan 1, 2011
    - Amended L 2011, ch 285, § 1, effective Aug 3, 2011
    - Amended L 2014, ch 315, § 1, effective August 11, 2014
NY Revocable Trust (RLT)
- Funding
  - ➡️ Why You Need to Ensure Your New York Revocable Trust Has Title to Your Assets - Discusses EPTL 7-1.18.
- If the grantor retained the income interest and the right to revoke the trust, then . . .
  - remainder beneficiaries not entitled to notice
    - Matter of Central Hanover Bank & Trust Co., 176 Misc. 183, 186, affd 263 A.D. 801, affd 288 N.Y. 608: "[A]s they have only a remainder interest in the trust estate they are not entitled to information regarding the disposition of the trust estate or trust income during the existence of the preceding life estate or any right to call upon the trustee for an accounting and hence have no right to file objection thereto."
  - remainder beneficiaries have no standing to bring an accounting proceeding
    - Matter of Central Hanover Bank & Trust Co., 176 Misc. 183, 186, affd 263 A.D. 801, affd 288 N.Y. 608: "the right of accounting is, by the express terms of the instant trust, limited to the grantor life income beneficiary and that she alone is authorized to file objections to the acts of the trustee performed during her lifetime."
- Terms of Revocable Trust Determine Scope of Authority to Revoke or Amend
  - ➡️ Guardian Cannot Amend Revocable Trust When Capacity Is Required for Amendment
- ➡️ Revocable Trusts are Subject to a Surviving Spouse's Right of Election
NY Right of Election
- ➡️ Revocable Trusts are Subject to a Surviving Spouse's Right of Election
NY Rule Against Perpetuities (RAP)
- 🔑 Even Under Common-Law Rule Against Perpetuities, Trusts Can Last for Over a Century
- RAP has a different starting point in testamentary and lifetime trusts. See 🔑 Differences Between Testamentary Trusts and Inter Vivos Trusts in New York.
NY Safe Deposit Box
- Petition to Search Safe Deposit Box
  - 🔑 Form: Petition to Search Safe Deposit Box
NY Specific Devise
- 🔑 Title to Specifically Devised Real Property Vests Immediately at Death
- ➡️ Why Executors in New York Should Be Cautious with Specifically Devised Property
NY Sprinkle Trust
- Definition of 🔤 sprinkle trust.
- 🔑 NY: Prospective Sprinklees of Trust Income Have Standing in Accounting Proceeding
NY Standing
- 🔑 Remainder Beneficiaries of a Trust Have Standing in Accounting Proceeding
- 🔑 Remainder Beneficiaries of a Trust Have Standing in a Proceeding to Remove a Trustee
- 🔑 Takers in Default of a Power of Appointment Have Standing in Accounting Proceeding
- 🔑 Prospective Sprinklees of Trust Income Have Standing in Accounting Proceeding
- 🔑 Appointees Under Powers of Appointment That Have Not Yet Been Exercised Have Standing in Accounting Proceeding
NY Staple Affidavit
- 🔑 Sample Staple Affidavit
NY Statutes of Limitations
- 🔑 NY Conflict of Laws: Statutes of Limitations are Procedural
NY Stipulations
- Summary Judgment & Stipulations
  - 🔑 Court Can Grant Summary Judgment on Stipulation Interpretation When Parties’ Intent is Clear
- Setting Aside a Stipulation
  - 🔑 Courts Favor Settlement Stipulations When Parties Have Legal Representation
  - Grounds for Setting Aside a Stipulation
    - 🔑 Fraud
    - Overreaching (Coercion or Duress)
      - 🔑 Stipulations Can Be Set Aside Because of Overreaching
      - 🔑 Prompt Action Required to Repudiate Stipulation Procured by Duress
    - 🔑 Repudiation
    - Lack of Capacity
      - See 🔑 Stipulation With Incompetent Is Voidable Only By the Incompetent
  - Voiding a Stipulation
    - 🔑 Stipulation With Incompetent Is Voidable Only By the Incompetent
NY Summary Judgment
- Proponent must make a 🔑 prima facie showing of entitlement.
- Then, the 🔑 burden shifts to the opposing party.
- 🔑 Standard for Deciding a Summary Judgment in a NY Probate Proceeding
- 🔑 Court Can Grant Summary Judgment on Stipulation Interpretation When Parties’ Intent is Clear
- 🔑 Fiduciaries Denied Summary Judgment for Use and Occupancy Fees Due to Lack of Proof and Uninhabitability Claims
NY Supplemental and Special Needs Trust (SNTs) 🔗
- Purpose: SNTs provide ﬁnancial support beyond what is covered by government beneﬁts, addressing needs such as food, clothing, shelter, and healthcare.
- Discretionary Nature: The trustee has full discretion over distributions, ensuring that trust assets do not directly replace government assistance.
- ➡️ EPTL 7-1.12: Supplemental Needs Trusts in New York
- ➡️ Understanding EPTL 7-1.12: Third-Party and Self-Settled Supplemental Needs Trusts in New York
- ➡️ How SNT Distributions Affect Government Benefit Eligibility
- 🔑 When Should a Supplemental Needs Trust Allow Basic Needs Distributions? Understanding EPTL 7-1.12
- Terminology: The terms "supplemental needs" and "special needs" are interchangeable.
  - "This article refers to 'supplemental needs trusts' or 'special needs trusts' interchangeably. Both terms broadly describe a trust designed to benefit a person with a disability (the beneficiary) without jeopardizing the beneficiary’s eligibility for public benefits." Mark Brody & Sheila Shea, Birth of a Third Party Agency Trust, NYSBA Elder and Special Needs Law Journal, Fall 2019.
- First Party SNT
  - The beneficiary's assets are used to fund the trust.
  - Must be irrevocable.
  - Purpose: To allow the beneficiary to qualify for government benefits.
  - A governental payback provision is required.
  - Can have a Medicare Set-Aside subtrust
    - This subtrust " when the benefciary is awarded a personal injury settlement or a Workers Compensation award. The amount of the award that should be set aside for future medical expenses related to the injury are funded into the MSA subtrust to be preserved for such use." Ability to Draft an Annotated Self-Settled Special Needs Trust Added to Elder Docx, WealthCounsel, Oct. 6, 2021.
  - Resources on First Party SNTs
    - Guidelines for Trustees of First Party Supplemental Needs Trusts, NYSBA Special Needs Planning Committee.
- Third Party SNT
  - A governmental payback provision not required.
  - A third party SNT can be created as a standalone document or as one part of a larger estate planning document (such as a will or trust).
- Resources on SNTs in New York
  - Trustee Guidelines for Administration of a Supplemental Needs Trust, NYC Department of Social Services.
  - John Lensky Robert, Drafting Supplemental and Special Needs Trusts, NYSBA, Fall 2013.
NY Surrogate's Court
- 🔑 NY: Surrogate's Court Cannot Interpret Will Before Probate
NY Surrogate's Court Procedure Act (SCPA)
- ➡️ The Flexibility of New York Surrogate’s Court Jurisdiction Under SCPA § 202
- ➡️ SCPA 207: Lifetime Trusts; Jurisdiction and Venue
- ➡️ SCPA 304: Contents of Petition
- ➡️ SCPA 711: Suspension, Modification or Revocation of Letters or Removal for Disqualification or Misconduct
- SCPA 1403: Persons to be served; content of process
  - SCPA 1403(1)(d): "Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate's court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate."
    - SCPA 1403(1)(d) can come up when a lawyer 🔑 files a will in Surrogate's Court because a nominated executor is unresponsive.
- ➡️ SCPA 1404: Witnesses to Be Examined; Proof Required
- SCPA 1418: Letters of administration with will annexed; when and to whom granted
  - 🔑 NY: Sample Renunciation of Letters of Administration C.T.A. and Waiver of Process (SCAP 1418)
- ➡️ SCPA 1420: Proceeding for construction of will; effect of decree
  - 🔑 Surrogate's Court Cannot Interpret Will Before Probate
- ➡️ SCPA 2307 Commissions of Fiduciaries Other Than Trustees
- Article 25 Records and Recording
  - 🔑 SCPA 2508: Filing of will of decedent
NY Tax Law (Statutes)
- TL § 954 Resident's New York Gross Estate
  - Text of ➡️ Tax Law § 954
  - ➡️ NY Estate Tax: Why Clawed-Back Gifts Don’t Get a Basis Step-Up
NY Tenants by the Entirety
- Tompkins Community Hosp. v. Tomassini, 157 Misc.2d 42 (N.Y. Sur. Ct., Tompkins Co. 1993): "Unlike the joint tenancy, both members of the tenancy by the entireties are deemed co-owners of every atom of the property during their joint lives. The removal of the spouse, by death, leaves the survivor with the same ownership interest in the same atoms (Kozyra v Goldstein, 146 Misc 2d 25; Matter of Dickie, 55 Misc 2d 976). Hence, no transfer, actual or conceptual, occurs at death."
NY Tenants in Common
- "[A]s a general proposition, absent an agreement to the contrary, partners, joint venturers, and tenants in common look solely to the appreciation of their interest in the endeavor for their financial rewards, and are not entitled to separate compensation for services rendered (see, Levy v Leavitt, 257 N.Y. 461, 467; Myers v Bolton, 157 N.Y. 393, 399)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
NY Testamentary Trust
- 🔑 Sample Retainer for Administration of a Testamentary Trust
NY Title Insurance
- Endorsements
  - ALTA v. TIRSA
    - ALTA = American Land Title Association, which means it is used nationally
    - TIRSA = specific to New York and not national
NY Transfer on Death Deed
- Limitations
- Ancillary transfer documents (like TP-584, RP-5217, and IT-2663) are not required when recording NY TOD deeds, Except in Erie County and Niagara County. See ➡️ No Ancillary Transfer Documents Required for Recording (Except in Erie County & Niagara County).
NY Trust Protector
- Duty: What is the duty of impartiality?
  - Definition of 🔗duty of impartiality.
  - Proposed New York Trust Code
    - 🔑 TELS Recommendations on Proposed Section 7-A-8.3
NY Trustee's Duty to Determine Whether to Retain or Dispose of Initial Assets
- NY EPTL 11-2.3(b)(3)(D): "The prudent investor standard requires a trustee: . . . (D) within a reasonable time after the creation of the fiduciary relationship, to determine whether to retain or dispose of initial assets."
NY Trustees
- Duties
  - 🖇️ Delegation by Trustees
- Commissions
  - SCPA § 2309 governs commissions of trustees for trusts (lifetime and testamentary) created after August 31, 1956.

NY Trusts
- 🖇️ Trustees in New York
- NY EPTL 11-1.1(a)(2) defines a trust for purposes of NY EPTL 11-1.1 (Fiduciary powers): "(a) As used in this section, unless the context or subject matter otherwise requires, . . . (2) [T]he term 'trust' means any express trust of property, created by a will, deed or other instrument, whereby there is imposed upon a trustee the duty to administer property for the benefit of a named or otherwise described income or principal beneficiary, or both. A trust shall not include trusts for the benefit of creditors, resulting or constructive trusts, business trusts where certificates of beneficial interest are issued to the beneficiary, investment trusts, voting trusts, security instruments such as deeds of trust and mortgages, trusts created by the judgment or decree of a court, liquidation or reorganization trusts, trusts for the sole purpose of paying dividends, interest, interest coupons, salaries, wages, pensions or profits, instruments wherein persons are mere nominees for others, or trusts created in deposits in any banking institution or savings and loan institution."
- 🔑 Differences Between Testamentary Trusts and Inter Vivos Trusts in New York
NY Undue Influence
- 🔑 Generally, Burden of Proving Undue Influence Lies with Party Asserting Its Existence
- 🔑 When Confidential Relationship Exists, Burden Shifts to Beneficiary to Prove No Undue Influence
NY Unitrust - EPTL 11-2.4
- Effective January 1, 2002, a trustee-beneficiary can make a unitrust election under EPTL 11-2.4. See Matter of Heller, 849 NE 2d 262 (NY Court of Appeals 2006); Matter of Sackler, 2016 NY Slip Op 32013(U) (Sur. Ct., Nassau County 2016).
- A unitrust election "permits trustees to elect a regime in which income is calculated according to a fixed formula and based on the net fair market value of the trust assets." Matter of Heller, 849 NE 2d 262 (NY Court of Appeals 2006).
- Proceeding to Apply Unitrust
NY Use and Occupancy in Surrogate's Court
- 🔑 Fiduciaries Denied Summary Judgment for Use and Occupancy Fees Due to Lack of Proof and Uninhabitability Claims
NY WebSurrogate
- Link to WebSurrogate: https://websurrogates.nycourts.gov/Home/Welcome/
- ➡️ NY WebSurrogate: Protecting Privacy or Limiting Access?
NY Wills
- ➡️ "I Love You" Will Might Not Show Love to Surviving Spouse
- ➡️ Share the Location of Your Will, or It Will Be Worthless
- Testamentary Capacity
- Scope of a Will
  - A will can revoke or amend a beneficiary designation. ➡️ EPTL 13-4.6(b).
  - 🔑 Generally, a will cannot change the beneficiaries of a life insurance policy
- Staples
  - ➡️ Do Not Remove Staples From a Will
  - 🔑 Sample Staple Affidavit
- Safekeeping a Will
  - Lawyer Can Safe-keep a Will
    - If a nominated executor stops responding before the probate petition, then a lawyer who is safekeeping their client's will can 🔑 file the will in court.
- Construction of a Will 🔗
  - SCPA 1420 Proceeding for construction of will; effect of decree
  - CPLR 4503(b): "Wills and revocable trusts. In any action involving the probate, validity or construction of a will or, after the grantor's death, a revocable trust, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will, revocable trust, or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent."
- 🔑 SCPA 2508: Filing of will of decedent
NY Wills: Power to Continue Decedent's Businesses
- An executor given a discretionary power to continue the decedent's business cannot use general assets of the estate to continue various businesses of the testator: "such authorization merely grants to the executor the power to conduct the various businesses with the funds already invested in them at the time of the testator's death, and to subject only these funds, and not the general assets of the estate, to the hazards of the businesses." Estate of Muller, 24 N.Y.2d 336 (1969).
NY Wrongful Death
- Fiduciaries determine whether to commence a wrongful death proceeding, not the court. See ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
Peak Trust Company
- [[6203ec6e629eb5003bb8ff7d|➡️ Peak Trust Company is Expanding to Delaware, Feb. 9, 2022.
Pension Fund
- Definition of 🔤 pension fund.
Power of Attorney
- 🖇️ New York Power of Attorney
Power to Remove and Replace Trustees 🔗
- Retained Power to Remove and Replace Trustees
  - Sample Clause
  - Income Tax Consequences
  - Estate Tax Consequences
  - Gift Tax Consequences
- Power to Remove and Replace Trustees Given to Trust Protectors
  - Sample Clause
  - Income Tax Consequences
  - Estate Tax Consequences
  - Gift Tax Consequences
- Removal and Replacement of Trustees By a Court
Privacy
- Healthcare Information
  - Health care worker gets 2 years for accessing Ruth Bader Ginsburg’s medical records, AP, Nov. 7, 2024. "Trent Russell, 34, of Bellevue, Nebraska, . . . worked at the time as a transplant coordinator for the Washington Regional Transplant Community and had access to hospital records all over the region . . . ." He was charged and "convicted earlier this year of illegally accessing health care records and destroying or altering records at a jury trial." He was charged "with publishing that information on the internet in 2019," but a jury acquitted him on this count. "[A]t one point [he] suggest[ed] that perhaps his cat walked across the keyboard in a way that mistakenly called up Ginsburg’s data. . . . [U.S. District Judge Michael] Nachmanoff, in issuing his sentence, said he took into account the fact that Russell has a sick step parent who might need care. The judge noted 'with some irony' that the details of the stepparent’s health problems are under seal.
Private Placement Life Insurance
- Private Placement Life Insurance: A Tax Shelter for the Ultra-Wealthy Masquerading an Insurance, Senate Finance Committee, Feb. 21, 2024.
Prudent Investor Rule
- Prudent-investor principles are articulated in Restatement Third of Trusts. They were first articulated in 1992 when the Restatement Third Trusts: Prudent Investor Rule was originally published, and they were articulated again in 2007 when the 1992 Prudent Investor Rule was republished as Volume 3 of Restatement Third Trusts.
- The prudent investor rule has been called "[t]he most challenging part of the . . . subject" of trust administration. Foreword in Restatement 3d Trusts vol.2.
- "[T]he Prudent Investor Rule [is] a rationalization of a trustee's authority to maximize the economic value of the trust estate." Lance Liebman in Foreword to Restatement 3d Trusts, vol.3.
- Restatement (Third) of Trusts § 227: "The trustee is under a duty to the beneficiaries to invest and manage the funds of the trust as a prudent investor would, in light of the purposes, terms, distribution requirements, and other circumstances of the trust."
Prudent Investor Standard
- What is it?
  - The standard is a "modest reformulation of the Harvard College dictum and the basic rule of prior Restatements [that] seeks to modernize trust investment law and to restore the generality and flexibility of the original doctrine." Restatement 3d Trusts: PIR.
- New York: See 🖇️ NY Prudent Investor Act.
Real Property
- 🔑 Real Property in Irrevocable Trust: Beneficiaries Don’t Own the Real Property
Research
- Digital Libraries
- New York Bill, Veto and Recall Jackets
- New York Fair Hearing Decisions by the Office of Temporary and Disability Assistance – "[Y]ou can search all of the Fair Hearing decisions issued by the Office of Administrative Hearings since November 1, 2010."
- New York Slip Decisions
- New York State Library: A-Z Databases
- New York Surrogate's Court Records: 🖇️ WebSurrogate
Residuary Devise
Retained Limited Power of Appointment
- A trust grantor can reserve a limited power to change trust beneficiaries.
- Federal Estate Tax: The property is included in the decedent's gross estate because the grantor retained "the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom." IRC § 2036(a)(1).
Retained Possession or Enjoyment of Trust Property
- A trust grantor can retain the possession or enjoyment of trust property.
- Federal Estate Tax: The property is included in the decedent's gross estate because the grantor retained "the possession or enjoyment of . . . the property." IRC § 2036(a)(2).
Retainer Agreements
- 🔑 Sample Retainer Agreement for Nursing Home: Valuable Language for Collection and Guardianship Services
- Collection services: 🔑 Sample hybrid billing agreement.
- Guardianship services for nursing home: 🔑 Sample language.
Retirement
- ➡️ The Best and Worst States in Which You Can Retire in 2022
- ➡️ Saving for Retirement is Important: It Can Make You a Millionaire
Revocable Living Trust
Rule Against Perpetuities (RAP)
- 🔑 Even Under Common-Law Rule Against Perpetuities, Trusts Can Last for Over a Century
Safekeeping Estate Planning Documents
- ➡️ Share the Location of Your Will, or It Will Be Worthless
SECURE Act (2019)
- Setting Every Community Up for Retirement Enhancement (Secure) Act of 2019 (P.L. 116-94).
SECURE Act Regulations
- IRS Releases Proposed Regulations for SECURE Act
SECURE Act 2.0 (2023)
- ➡️ Chart Shows Surviving Spouses' Options for Inherited Retirement Accounts Under Secure 2.0
Social Security
- "Social Security and Supplemental Security Income (SSI) beneficiaries will receive a 2.5 percent COLA for 2025." [Fact Sheet]https://www.ssa.gov/news/press/factsheets/colafacts2025.pdf), ssa.gov.
Soverign Wealth Fund
- Definition of 🔤 sovereign wealth fund.
Specific Devise
- A type of 🖇️ devise.
- A specific devise is a preresiduary devise. C.f. 🖇️ residuary devise.
- See 🖇️ NY Specific Devise.
Tax Basis
- 🔑 The Backdoor Step-Up in Basis for Intentionally Defective Grantor Trusts
- ➡️ Flashback: Congress Considered Capital Gains Tax on Death in 1969
Tax Loss Harvesting
- "Tax-loss harvesting using long and short positions has significantly increased in popularity. However, caution is warranted regarding several income tax issues, including the economic substance doctrine, fee deductibility, and passive activity losses." Katrina Crafton Fluet & Patrick J. McCurry, Key Takeaways | Family Offices: Evolution & Efficiencies, McDermott Will & Emery, Oct. 29, 2024.
Tax Policy
- Economic Incentives: Tax deductions are strategically used to influence behavior by reducing the cost of certain actions, encouraging employers and individuals to align with policy goals.
  - Daniel Schaffa, Reimagining the Deduction for Employee Compensation, 57 U. Mich. J. L. Reform 417 (2024). This article proposes restructuring the employee compensation tax deduction to incentivize employers to hire and raise wages for low-wage workers, aiming to address wage stagnation and improve labor market participation.
- Populism and Taxation
Tech: Privacy
- ➡️ NY WebSurrogate: Protecting Privacy or Limiting Access?
- IDeviceHelp, STOP Your iPhone From listening to Your Private Conversations!, YouTube, Sept. 6, 2024.
Transfer on Death Deed
- 🖇️ New York TODD
Trump as 47th President 🔗
- Timeline (Not Exhaustive)
  - N.B. This timeline is not all-inclusive.
  - 2025-01-20 Inaugurated as 47th President
    - "Donald Trump took office as the 47th president claiming an electoral and divine mandate to immediately invoke emergency powers on immigration and energy, pursue territorial expansion and reverse Joe Biden’s policies on car emissions and trans rights." Isaac Arnsdorf, Trump declares ‘liberation,’ claims mandate for emergency powers, Washington Post, Jan. 20, 2024 (Apple News link).
  - 2025-01-20 By an executive order, Trump creates the Department of Government Efficiency. See 🖇️ DOGE.
  - 2025-01-25 Judge pauses Trump's birthright citizenship order.
    - See Cheryl Miller, 'Where Were the Lawyers?' Judge Blocks Trump's Birthright Citizenship Order, Law.com, Jan. 23, 2025 ("In issuing a temporary restraining order, U.S. District Senior Judge John Coughenour questioned the legal work that went into what he called a 'blatantly unconstitutional' executive order restricting who qualifies as a U.S. citizen.").
  - 2025-01-25 Trump order pauses federal financial assistance programs from executive departments and agencies, pending review.
  - 2025-01-28 Federal judge pauses funding freeze.
    - See Cheryl Miller, Federal Judge Pauses Trump Funding Freeze as Democratic AGs Plan Suit, Law.com, Jan. 28, 2025 ("A federal judge in Washington, D.C., on Tuesday temporarily blocked a Trump administrative directive freezing grant funding for a myriad of programs, including legal aid.").
  - 2025-01-29 Trump signs Laken Riley Act into law, expanding who can be deported
    - Ximena Bustillo, Trump signs first bill of his second presidency, the Laken Riley Act, into law, NPR, Jan. 29, 2025 (Apple News link) ("The bill is named for a Georgia nursing student who was killed last year by a Venezuelan man without legal status who had a criminal record.").
  - 2025-02-10 Trump instructs U.S. Treasury to stop creating new pennies.
    - "[T]he president ultimately has the authority to decide which coins the Treasury mints . . . ." Ocha & Adedoyin.
    - (+) Cost Savings:
      - "Some argue that the cost savings would be worth it . . . ." Ocha & Adedoyin.
      - "The cost of making a penny increased 20% in fiscal 2024, according to a report by the U.S. Mint." Ocha & Adedoyin.
      - On X, "DOGE said the penny 'cost U.S. taxpayers over $179 million in FY2023.'" Ocha & Adedoyin.
    - (+) Follows Precedent: "Canada said it would stop producing pennies in 2012, while Australia and New Zealand ditched the coins in the 1990s. In those countries, they have rounded to the nearest five- and 10-cent coins for cash transactions." Ocha & Adedoyin.
    - (+) Reflects Demand: "Demand for coins has been on the decline for some time." Ocha & Adedoyin.
    - (+) Reduces Waste: " It is estimated the U.S. throws away as much as $68 million worth of coins a year." Ocha & Adedoyin.
    - (-) Price Increases: "Others say abolishing the coin would have consequences for traders and consumers, because cash transactions would need to be rounded either up or down." Ocha & Adedoyin.
    - (-) Logistical Challenges: "In the event of the Treasury removing the penny from circulation, Congress would likely move quickly to legislate to enable merchants to round transactions to the nearest nickel." Ocha & Adedoyin.
    - Fabiana Negrin Ochoa & Oyin Adedoyin, Trump Tells U.S. Treasury to Stop Minting Pennies, WSJ, Feb. 10, 2025 (Apple News link).
- Consumer Prices
  - "Food and other grocery prices were particularly salient to voters, perhaps even more so than gasoline prices. // But there’s not that much policymakers can do to bring grocery prices down, especially in the near term. Even Mr. Trump himself is now admitting this." Jared Bernstein, Bidenomics Delivered on Its Promises, WSJ, Jan. 20, 2025 (Apple News link).
  - 2025-02-12 Trump called for lower interest rates, even though inflation rose for the third month in a row. See The Editorial Board, Trumponomics and Rising Inflation, WSJ, Feb. 12, 2025 (Apple News link ("Rising inflation means the Fed must be more cautious in cutting rates. . . . The 12-month increase in CPI is now back to 3%, up from a recent trough of 2.4% in September. So-called core prices, less food and energy, rose 0.4% for the month and are now up 3.3% over the last 12 months. . . . Mr. Trump isn’t responsible for this after only three weeks in office. But someone should tell him that the mistake goes back to the Fed’s premature interest-rate cut of 50 basis points in September.").
- Department of Government Efficiency (DOGE) 🔗
  - DOGE has been granted broad, unprecedented access to private taxpayer information, raising serious concerns about privacy, security, and government oversight.
  - (+) Cutting waste and efficiency are laudable goals.
  - (+) Through DOGE, Trump is restoring power to the executive branch of the federal government.
    - William McGurn, Opinion: DOGE Lawsuits May Occasion Scalia’s Revenge, WSJ, Feb. 24, 2025 (Apple News link): "At its essence, the legal fight over Mr. Musk and the Department of Government Efficiency is about the extent of a president’s executive power. Scalia insisted that the division of power among three separate, coequal branches of government was the key to American liberty. Over the decades, Congress and the courts have eroded the president’s authority over his own branch—and Mr. Trump is trying to claw it back."
  - (-) An unelected billionaire is given extraordinary power and unprecedented access to private data with no oversight or transparency.
    - Unprecedented Access
      - Trump's 1/20/2025 ➡️ executive order backing DOGE gave Musk unprecedent access to government data beyond what any citizen has previously held. It states: "(b) Agency Heads shall take all necessary steps, in coordination with the USDS Administrator and to the maximum extent consistent with law, to ensure USDS has full and prompt access to all unclassified agency records, software systems, and IT systems."
      - "Trump has given free rein to Musk to send his operatives into more than a dozen federal agencies to look for evidence of mismanagement and subversion, and to generally create chaos, outside of the usual bounds of oversight and regulation." Chris McGreal, What does Elon Musk believe?, The Guardian, Feb. 8, 2025 (Apple News link).
      - DOGE's reach expands to health payment systems.
        
        Dan Diamond, Lauren Kaori Gurley, Lena H. Sun, Hannah Knowles & Emily Davies, DOGE broadens sweep of federal agencies, gains access to health payment systems, Washington Post, Feb. 5, 2025 (Apple News link).
    - The Great Elon Musk!
      - Official Trump-Vance transition materials referred to Musk in near-religious language--as "➡️ the Great Elon Musk."
    - Elon God?
      - DOGE spelled backward is EGOD, ➡️ a near-homophone for "Elon God". "Whether intentional or not, the Elon God (EGOD) interpretation signals a shift in Musk’s role—from entrepreneur to government powerbroker," I ➡️ wrote.
      - ➡️ DOGE Spelled Backward: Is “Elon God” a Coincidence or a Warning?, Feb. 4, 2025.
  - (-) Conflicts of Interest
    - Soo Rin Kim, As Musk cuts federal spending, his own firms have received billions in contracts, ABC News, Feb. 10, 2025 (Apple News link).
  - Lawsuit by unions
    - ➡️ Unprecedented Access: Legal Challenges Arise Over Elon Musk's DOGE and Taxpayer Data, Feb. 4, 2025.
    - The Editorial Board, DOGE Hits the Courts, WSJ, Feb. 6, 2025 (Apple News link) ("Two federal judges pause buyouts and limit access to Treasury payments.").
    - A federal judge declined to fully block this access but limited it to "read-only" for two DOGE-affiliated individuals. Source: Reuters.
  - Lawsuit by 19 states
    - 2/7/2025 Complaint filed
      - The Complaint for Declaratory and Injunctive Relief is available here.
      - Josh Gerstein & Emily Ngo, 19 states sue Trump, Treasury to halt DOGE access, Politico, Feb. 7, 2025 (Apple News link) ("New York leads the suit in Manhattan federal court alleging highly sensitive data is at risk. . . . Joining James in filing the lawsuit are the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, North Carolina, Oregon, Rhode Island, Vermont and Wisconsin.").
    - 2/8/2025 Judge issues temporary restraining order (TRO)
      - An annotated copy of TRO is here.
      - ➡️ Federal Court Issues Temporary Restraining Order Against DOGE's Access to Treasury Payment Systems
  - Mike Scarcella, Tim Reid & Humeyra Pamuk, Judge declines to bar DOGE from the US Institute of Peace after standoff, USA Today, March 19, 2025 (Apple News link).
  - Ally Mutnick, Holly Otterbein, Sam Sutton & Lisa Kashinsky, Elon Musk presents a new vulnerability for Donald Trump, Politico, Feb. 6, 2025 (Apple News link) ("The billionaire's strategy of moving fast and breaking things isn't going over so well with the public.").
- Inflation
  - "Trump said he will sign a memo directing the government to address inflation, though the details of how that would operate were not provided." Isaac Arnsdorf, Trump declares ‘liberation,’ claims mandate for emergency powers, Washington Post, Jan. 20, 2024 (Apple News link).
  - "As a political matter, an inflation revival may be the biggest threat to the Trump Presidency. Mr. Trump was elected as voters reacted to inflation and falling real incomes under Joe Biden. Real average earnings are flat over the last three months as inflation has bounced up. If this persists, Mr. Trump won’t have a 53% job approval rating for long." The Editorial Board, Trumponomics and Rising Inflation, WSJ, Feb. 12, 2025 (Apple News link.
  - See 🖇️ Trump & Consumer Prices
- Sex Identification
  - "The new administration will officially recognize two sexes (male and female), defined based on the reproduction cells at conception. Government agencies will issue government documents showing people’s sex at conception, stop using gender identity or preferred pronouns, and maintain women-only spaces in prisons and shelters." Isaac Arnsdorf, Trump declares ‘liberation,’ claims mandate for emergency powers, Washington Post, Jan. 20, 2024 (Apple News link).
- Tarrifs
  - "Trump repeatedly praised tariffs in his speech, including by mischaracterizing them as a tax of foreign countries when they are paid by domestic consumers." Isaac Arnsdorf, Trump declares ‘liberation,’ claims mandate for emergency powers, Washington Post, Jan. 20, 2024 (Apple News link).
- Testing the Checks-and-Balances System
  - Gerald F. Seib, Will the Other Two Branches Dare to Push Back Against Trump?, WSJ, Feb. 7, 2025 (Apple New link) ("At what point will Congress stand up for itself? And when and where will the nation’s courts draw the line on the aggressive use of presidential power? . . . For now, a Congress with a paper-thin Republican majority in both chambers seems reluctant to draw lines.").
Trust Companies
- Trust companies operate under charters--national and state.
  - Example: "On February 8, 2022, Peak Trust Company announced that it received conditional approval for a national charter and will open an office under this charter in Wilmington, Delaware in June 2022. The company was founded 25 years ago and operates under separate state charters in Alaska and Nevada." [[6203ec6e629eb5003bb8ff7d|➡️ Peak Trust Company is Expanding to Delaware, Feb. 9, 2022.
  - See ➡️ Why Would a Trust Company Obtain a National Charter Instead of a State Charter?
Trustee
- Selecting a Trustee
  - Individual
  - Professional
  - Corporate
- Appointment
- Reununciation
- Disqualification
- Incapacity
- Other Inability to Act
- Acceptance
- Resignation: Once a trustee accepts the appointment, can the trustee resign?
- Removal
  - By Grantor
    - By Sole Grantor
    - By Survivor of Joint Grantors
  - By Beneficiaries
  - By Trust Protector
  - By Court
- 🖇️ Vacancy of Trustee
- Duties of Trustees
  - Impartiality (Balancing Beneficiary Interests)
  - Prudent Investment
- Accounting by Trustees
Trustee: Co-Trustees
- Appointment of a Co-Trustee
- Independent Trustee
- Resignation of Co-Trustee
- Removal of Co-Trustee
Trustee: Vacancy 🔗
- Filled by Trust Grantors
- Filled by Trust Protectors
- Filled by Court
  - New York: A court can fill a vacancy of a trustee under SCPA 706 or SCPA 1502.
Trusts v. Wills
- Thomas P. Gallanis, American Revolutions in the Law of Trusts, George Mason Legal Studies Research Paper No. LS No. 25-07 (March 17, 2025), ACTEC Law Journal, Volume 51, No. 2 (2026, forthcoming) (SSRN).
- David Horton, In Partial Defense of Probate: Evidence from Alameda County, California, UC Davis Legal Studies Research Paper No. 390, Feb. 2015 (SSRN link).
- David Horton, Reid K. Weisbord & Christopher Ryan, The Trust Transfer Problem, 104 North Carolina Law Review (forthcoming 2025) (SSRN link). The article argues that "states should pass laws declaring that the mere act of executing a rev trust showcases the settlor's intent to funnel all of their assets into it when they die. This forgiving approach would better serve decedents' wishes, reduce burdens on estates and the judicial system, and bring this area into alignment with the functionalism of modern inheritance doctrine."
TX Wills
- ➡️ Article Discusses Texas Wills Issues (and More Footnotes!)
VA Power of Attorney
- ➡️ Virginia Clarifies Power of Attorney Authority Over TOD Deeds in 2024
VA Transfer on Death Deed
- ➡️ Virginia Clarifies Power of Attorney Authority Over TOD Deeds in 2024
Will Substitutes
- Mechanisms by which assets are transferred on death other than the probate system. In other words, assets transfer without the necessity of probate or other court intervention.
- Some will substitutes give lifetime rights; others do not, making them "purely testamentary in nature and . . . virtually indistinguishable from wills, except that resort to the Surrogate's court to effectuate the property transfer is not required." Fourth Report of the EPTL-SCPA Legislative Advisory Committee, April 14, 1995.
- Mechanisms
  - Joint Accounts
  - Life Insurance
    - "The essential elements of a will, i.e., that it is revocable until death and the interests of the beneficiaries are ambulatory, are equally present in the life insurance contract and its beneficiary designation." Fourth Report of the EPTL-SCPA Legislative Advisory Committee, April 14, 1995.
  - Pensions
  - Ladybird Deed
  - Lifetime Trusts (Revocable and Irrevocable)
    - "The Revocable Lifetime Trust is the most flexible will substitute, offering the possibilities of individualistic drafting to accomplish specific goals and obtain tax benefits." Fourth Report of the EPTL-SCPA Legislative Advisory Committee, April 14, 1995.
  - Transfer on Death Deed
- Resources on Will Substitutes
  - John H. Langbein, The Non-Probate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108 (1984) ("The law would function better if it admitted that will substitutes are simply 'non-probate wills.' The inconsistent treatment of identical interpretive questions raised by wills and will substitutes is often linked to mischaracterization of will substitutes as lifetime transfers. The law of wills has reached sound solutions to these interpretive questions and I have urged that these solutions should extend presumptively to the will-like transfers of the non-probate system. The result would be a unified American law of succession.").
  - Fourth Report of the EPTL-SCPA Legislative Advisory Committee, April 14, 1995.
Wills
- ➡️ "I Love You" Will Might Not Show Love to Surviving Spouse
- ➡️ Share the Location of Your Will, or It Will Be Worthless
Writing
- 🖇️ Bluebook
- 🖇️ Chicago Manual of Style
- Finding Joy In Writing About Tax Law
- Footnotes
  - ➡️ Article Discusses Texas Wills Issues (and More Footnotes!)
- ➡️ How AI Gives Me Confidence to Contribute to Professional Discussions
- plainlanguage.gov
ZineHS
- A tag on WTE that collects posts that explore the intersection of law and creativity. See ➡️ Welcome to ZineHS.
- The tag: ➡️ https://www.willstrustsestates.info/tag/zinehs/
- Posts:

☕

Support: If you found this information useful, please consider supporting this website and my research by becoming a Paid Subscriber or buying me a coffee. Your support helps keep this site running and allows me to continue providing valuable content.

Hani Sarji

New York lawyer who cares about people, is fascinated by technology, and is writing his next book, Estate of Confusion: New York.

0 results found in this keyword

0 results found in this keyword

Outline

Hani Sarji

Leave a Comment

Related News

Recent News

NY Budget Proposal Makes Clawback Tax Permanent, Pushes for Deductibility, and Ends Apportionment for Gifts

Business Council’s Testimony Helped Shape Proposed NYTL § 954(a)(3) Amendment

🔑 Redacting Done Right: Lessons from a Surprising Mistake

Tags

0 results found in this keyword

0 results found in this keyword

Outline

Hani Sarji

Leave a Comment

Related News

🔑 Log

New York Bills: 2023-2024 Legislative Session

🔑NY L&T: Stipulation Can Convert Nonpayment Proceeding Into Holdover Proceeding

Recent News

NY Budget Proposal Makes Clawback Tax Permanent, Pushes for Deductibility, and Ends Apportionment for Gifts

Business Council’s Testimony Helped Shape Proposed NYTL § 954(a)(3) Amendment

🔑 Redacting Done Right: Lessons from a Surprising Mistake

Tags