A trust attorney can help protect you and your loved ones from losing your hard-earned assets to the government, attorneys, creditors and in-laws. You worked hard to get to where you are today, and it makes sense to reduce financial risk by protecting your assets with a trust. Here are some of the goals that a trust attorney may be able to accomplish for you:
- Qualify for Medicaid. A trust can help you qualify for Medicaid, including home care and nursing home coverage. This helps you avoid spending your hard-earned assets on medical care and long term care, leaving those assets to your family. Learn more about a Medicaid trust.
- Protection from creditors and lawsuits.A Properly executed and funded irrevocable trust will shield the principal of the trust from creditors and lawsuits.
- Avoid probate. Probate proceedings can become expensive and delayed. Property that you transfer to a trust will not have to go through probate.
- Protection from your children’s spouses and creditors. You may not want any of your hard-earned assets to go to your child’s spouse, whether in divorce or as an inheritance. You do not want any of the assets you give to your child to go to your child’s creditors, whether as a result of a lawsuit or in bankruptcy. A trust attorney can make sure that your hard-earned assets remain in the blood family and not be preyed on by people who are not immediately related to you.
- Maintain privacy from creditors. Proceedings in probate court are public record. Any person or organization will be able to find out the extent and location of your assets. Not so with a trust.
- Avoid multiple-state probate proceedings. If you have property in multiple states, you can avoid ancillary probate proceedings by transferring your property into a trust. Upon your death, the property will pass according to the trust and multi-state Surrogate’s Court proceedings will not be required.
- Protection from irresponsible and inexperienced children. A trust provides limits on how your beneficiaries can spend the assets. For example, you can specify amounts upon reaching a specified age.
- Management of funds for minor children or grandchildren. Minor children or grandchildren cannot manage funds and they will need a trustee to manage the funds for them. If children inherit funds without a trust, the children’s parent or guardian will not be able to access the funds without a lengthy court proceeding and tremendous court oversight, we are talking about having the court endorse every check and having to file multiple reports each year.
- Avoid interruption of income and use of assets. A trust provides for the continuity of management of your assets, and avoids interruption of income and use of assets upon your death or disability. Without a trust set up by a Trust attorney, your estate or business may be subject to restrictions imposed by the probate court.
- Provide planning for mental disability. A trust lets you select a trustee – someone you trust to manage your estate on your behalf in the event you become unable to do so yourself. Read more in Planning for Disability.
- Preserve your loved ones’ right to qualify for Medicaid and SSI – if your loved one is disabled and is on means-tested government programs such as Medicaid or SSI, a Special Needs Trust (also known as Supplemental Needs Trust) can help preserve their eligibility. They can continue to qualify to have the government pay for their care, instead of using your hard-earned assets.
- Save money on estate taxes. A trust can help you legally save a substantial amount on estate taxes. Read How to Avoid Estate Taxes to learn more about a credit shelter trust, life insurance trust, “QTIP” trust or QDT trust for the benefit of your spouse can further your tax savings goals.
A Charitable Remainder Trust (CRT) or a Charitable Lead Trust (CLT) helps maximize your tax advantage per charitable dollar. A Grantor Retained Annuity Trust (GRAT), an Intentionally Defective Grantor Trust (IDGT), or a Unitrust are advanced trusts that remove appreciation of your property from your estate. Read more in Advanced Estate Planning.
A revocable a trust does not offer enough protection to be considered a good asset protection tool. The law considers assets in a revocable trust to belong to the person who placed the asset into the trust, so forming an irrevocable trust, although it has some benefits, will have no impact on asset protection. This is because a revocable trust gives a lot of control to the person who established the trust. You can even revoke the trust, reversing it completely. For this reason, only an irrevocable trust can work as a tool that a trust attorney would use in New York.
However, a trust attorney would still use a revocable trust for a number of situations. A revocable trust is flexible because you can change or revoke them any time you like and for any reason. A Revocable trust becomes irrevocable after the death of the person who made them, making it a flexible option but at the same time offering many of the benefits of a trust outlined above.
An Irrevocable Life Insurance Trust (ILIT) is set up to own the life insurance policy, so that when the insured person dies, the proceeds of the life insurance will not become a part of the taxable estate. The insured can still pay the premiums by a “Crummy gift” to the trust. The downside of this trust is that it cannot be changed since it is irrevocable. The upside – no estate taxes (if set up the right way).
A Life Insurance Trust is also an important estate planning tool. They holds your life insurance for the benefit of your beneficiaries. After three years the trust would be deemed the owner of the policy, so as to minimize and chance that your estate will pay estate taxes on the proceeds. It also ensures that any appreciation of the life insurance policy is kept out of your estate. As a note of caution, a Life Insurance Trust has to be carefully drafted by an experienced Trust attorney to meet exacting IRS requirements.
Trust Litigation Attorney
Someone Was Left Out of the Trust
When a trust litigation attorney’s client is cut out of the trust, the attorney investigates whether the decedent was incapacitated, coerced or defrauded. We may also look into accusations of forgery or improper execution. We can even find that a later will is discovered. We strive to get the evidence and argue the legal theory to get the best possible settlement or verdict for our clients in trust contests. If the trust attorney finds evidence of those things, then he takes the case to trial, to try to prove to the judge or the jury that the trust is invalid and should be set aside. We would also defend a trust that a beneficiary is attempting to contest – we can represent either side of the trust contest, whether the proponent of the trust or the objectant to the trust.
Accusations of Stealing from a Trust
Trustees don’t always steal from a trust, but it happens often enough, and when it does, a trust attorney is there to try to reverse the damage to the trust. Trustees have access to the funds, and the temptation is too much to resist for some people. We’ve seen stealing by administrators, trustees, trustees, and even probate attorneys. A trust attorney helps trust beneficiaries bring an accounting proceeding to get a formal report on how the trust is being handled and try to get property back into the trust if it is missing. In the most egregious cases, such as where self-dealing and stealing from the trust can be shown, a trust attorney helps beneficiaries seek fiduciary removal. We can represent either side of the case – the beneficiary who is alleging stealing and the trustee who is saying that everything done in the trust was proper.
A Trust Litigation Attorney Can Help Resolve Disagreements
Disagreements sometimes arise in a trust. Some trustees have a feeling of absolute power and act unreasonably towards the beneficiaries of a trust. On the flip sides, some beneficiaries mount unreasonable demands on a trustee. Some trust disagreements can be resolved without court intervention. This includes disagreements over sell vs. keep, valuation, who gets what, and items with intangible value. We strive to obtain the best possible distribution for our clients.
Unclear Language in a Trust
Unclear instructions sometimes occur when wills, trusts, and other disposition documents are not carefully drafted. Whether the ambiguities work out to your advantage or disadvantage, a trust attorney will make every effort to have the documents interpreted in your favor.
A Trust Litigation Attorney Can Help in Kinship Disputes
When a relationship to the deceased is in question, a kinship proceeding arises and you need the help of an experienced trust attorney to prove your kinship and possibly exclude the kinship of others. In kinship proceedings, we may litigate over situations involving the need to look back multiple generations or unravel vague circumstances.
A trust attorney not only represents beneficiaries of a trust but also represents trustees when one of the following situations occur:
- Relatives of the decedent are trying to overturn the trust
- Beneficiaries are claiming that the trustee has done something wrong
- A person with an interest in the estate is trying to cancel a gift the decedent gave to the trustee
- An heir is trying to cancel a beneficiary designation
- A beneficiary is challenging the trustee’s qualifications
- A spouse of the decedent is presenting inflated spousal elective share claims
- Beneficiary or business partner is claiming a share of the business
A trust attorney can protect the trustee against unfair allegations.
Defend a Trust Against Contests
A resident of New York has the right to cut people out of their trust. A trust attorney can help a trustee clear a trust of allegations and proceeding to close the trust and distribute assets to their rightful beneficiaries, sometimes with small settlements or no settlements at all.
A Trust Litigation Attorney Can Defend Against Allegations of Trustee Wrongdoing
Trustees can be unjustly accused of taking funds or property of the trust and are accused of overspending on trust expenses. In such situations, a trust attorney will work with the trustees to remedy the situation and put any misunderstandings behind them.
Defend Pre-Death Gifts
People are within their right to make gifts during their lifetime. Those gifts are often challenged after the person who made the gift dies. Claimants make arguments that the person “did not really intend to make the gift” and that they were taken advantage of. A trust attorney will provide a vigorous defense to disprove the claimants’ arguments, and if need be, demonstrating that the giver made the gift of their own free will and that whatever issues the claimant has with the gift are not enough to change the fact that the gift was made. A trust attorney often has the capacity to successfully defend most challenges to pre-death transfers of assets.
Defend Beneficiary Designations
Beneficiary designations can be challenged by the people who were not named as a beneficiary or who have received a lesser share than they expected. They will claim that the person who named beneficiaries to their assets was tricked into signing the form or they did not know what they were signing. It is up to the people making those claims to prove their case. Trust attorneys do their best to dispute those claims, and to show the Court that the person who died made the beneficiary designation on their own free will, with full understanding, and without any technical defects.
A Trust Litigation Attorney Can Defend Trustee Qualifications
Beneficiaries of a trust sometimes have a personal problem with the Trustee. Trust attorneys often provide a simple solution to this potential problem by posting a bond, which is like insurance on the trustee’s potential misconduct. A bond sometimes works to put the beneficiaries at ease. If a bond cannot be posted or if the beneficiaries want the Trustee out no matter what, it is up to the beneficiaries to prove why the trustee is not qualified. A trust attorney will do his absolute best to show that the beneficiaries’ claim to have the Trustee disqualified are without basis.
Defend Against Inflated Spousal Elective Share Claims
A disinherited spouse is entitled to a claim of up to one-third of the decedent’s trust. A spouse is also entitled to a third of any property the decedent owned up to a year prior to their death, recapturing the property even if the decedent transferred the property to someone else before they died. A spouse can attempt to overvalue the entire trust in the hopes of receiving a higher elective share. Sometimes, a spouse attempts to include the trustee’s own property in the elective share valuation. If a spouse disagrees with the trustee over the amount of the elective share, it is up to the spouse to prove to the court how the trustee is wrong. Trust attorneys vigorously defend trustees against a spouse’s attempt to overvalue an elective share.
A Trust attorney Can Defend the Trustee’s Share in a Business
Trustees are often in business together with the decedent, having worked in the same company sometimes for decades, has significantly contributed to the company, having a share in the company or receiving compensation from the business. Non-trustees who are not involved in the business tend to challenge the trustee’s share, ignoring the years of hard work that the trustee put into the business. A trust attorney will work hard to show the court that the Trustee is entitled to the share of the business and to the income and control of the business.
Defend Claims Against a Trust
After a person dies, all kinds of people and entities make claims against their trust. The most common claimants are creditors, alleged business partners, life partners, ex-spouses, the IRS, and Medicaid. If often turns out that the alleged claimants cannot provide any sort of proof such as documents or testimony. Even if they do have a claim, it is often overstated. A trust attorney will fight hard to make sure that if a claim is even paid, the claimants only get a reasonable settlement amount.
Albert Goodwin is an experienced New York trust attorney who has successfully represented clients all over New York City, including New York County (Manhattan), Kings County (Brooklyn), Bronx County, Queens County, Richmond County (Staten Island), Nassau County in Long Island, and Westchester County (the White Plains court).
If you are looking for trust attorney in New York, you can call Albert Goodwin, Esq for the best representation. We can be reached at 212-233-1233 or 718-509-9774.