Assets that were properly transferred to a revocable living trust or irrevocable living trust are not subject to probate. With a living revocable trust, the trust owns the assets, but the donor can revoke or change the trust and has control over managing and spending the assets during the donor’s lifetime. With an irrevocable trust, the trust owns the assets and the donor cannot use the assets for the donor’s benefit or transfer assets from the trust to the donor’s personal accounts.
After the trust maker passes away, the trustee follows instructions set forth in the trust which tells the trustee how to manage, handle and distribute the trust assets to the beneficiaries. The trustee must make an accounting of the decedent’s assets. If there are any assets that are discovered that have not been transferred to the trust, the trustee must advise the executor or personal representative of the estate to initiate a probate action. Frequently, a spouse may be the trustee and also the executor of an estate. Assets that may be included in a trust include:
• Real property
• Stocks, bonds and investment accounts
• Jewelry and collectibles
• Automobiles and other items of value
The trust assets are passed to the heirs of the decedent in accordance with the terms and conditions of the trust and not the decedent’s will. Any assets that are not properly passed to the trust and that are held in the sole name of the decedent will be subject to probate in New York. Also, if the donor/trust maker becomes mentally incapacitated, the trust provisions dictate how the assets will be taken care under those circumstances. This can save the trust maker’s family quite a bit of money and time by avoiding a formal guardianship proceeding with the New York Surrogate’s Court.
Trusts and wills are complex matters. Therefore, it is recommended that a person seek the proper legal advice from an experienced New York Estate Planning and Probate Attorney to assist them with the drafting a will and trust to make sure their assets are adequately protected and their heirs receive their inheritances and distributions in the manner that the testator and trust maker desires.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.