A trusts 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 Trusts attorney may be able to accomplish for you:
- Qualify for Medicaid. There are several types of trusts that can help some individuals 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 Medicaid trusts.
- Protection from creditors and lawsuits. Properly executed and funded irrevocable trusts 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 trusts 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 Trusts 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 trusts.
- 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. Trusts provide 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. Trusts provide for the continuity of management of your assets, and avoids interruption of income and use of assets upon your death or disability. Without trusts set up by a Trusts attorney, your estate or business may be subject to restrictions imposed by the probate court.
- Provide planning for mental disability. Trusts let 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, Special Needs Trusts (also known as Supplemental Needs Trusts) 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. Trusts can help you legally save a substantial amount on estate taxes. Read How to Avoid Estate Taxes to learn more about credit shelter trusts the life insurance trust. “QTIP” trusts or QDT trusts for the benefit of your spouse can further your tax savings goals.
Charitable Remainder Trusts (CRT) or a Charitable Lead Trusts (CLT) help maximize your tax advantage per charitable dollar. A Grantor Retained Annuity Trusts (GRAT), an Intentionally Defective Grantor Trusts (IDGT), or a Unitrust are advanced trusts that remove appreciation of your property from your estate. Read more in Advanced Estate Planning.
A revocable trusts do not offer enough protection to be considered a good asset protection tool. The law considers assets in revocable trusts 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 revocable trusts give a lot of control to the person who established the trust. You can even revoke the trust, reversing it completely. For this reason, only irrevocable trusts work as a tool that a trusts attorney would use in New York. However, a Trusts attorney would still use revocable trusts for a number of situations. Revocable trusts are flexible because you can change or revoke them any time you like and for any reason. Revocable trusts become 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 trusts outlined above.
Irrevocable Life Insurance Trusts (ILIT) are 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 these trusts is that they cannot be changed since they are irrevocable. The upside – no estate taxes (if set up the right way).
Life Insurance Trusts are 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, Life Insurance Trusts has to be carefully drafted by an experienced Trusts attorney to meet exacting IRS requirements.
Trusts Litigation Attorney
Someone Was Left Out of the Trust
When a trusts 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 trusts 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 also defend trusts 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 Trusts
Trustees don’t always steal from trusts, but it happens often enough, and when it does, a trusts 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 trusts 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 trusts 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 Trusts Litigation Attorney Can Help Resolve Disagreements
Disagreements sometimes arise in trusts. Some trustees have a feeling of absolute power and act unreasonably towards the beneficiaries of trusts. 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 Trusts
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 trusts attorney will make every effort to have the documents interpreted in your favor.
A Trusts 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 trusts 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 trusts attorney not only represents beneficiaries of trusts 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 trusts attorney can protect the trustee against unfair allegations.
Defend Trusts Against Contests
A resident of New York has the right to cut people out of their trust. A trusts attorney can help a trustee clear trusts 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 Trusts 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 trusts 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 trusts 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 trusts 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. Trusts 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 Trusts Litigation Attorney Can Defend Trustee Qualifications
Beneficiaries of trusts sometimes have a personal problem with the Trustee. Trusts 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 trusts 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. Trusts attorneys vigorously defend trustees against a spouse’s attempt to overvalue an elective share.
A Trusts 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 trusts 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 Trusts
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 trusts 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 trusts 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 trusts attorney in New York, you can call Albert Goodwin, Esq for the best representation. We can be reached at 718-509-9774 or 718-509-9774.