Estate, Powers and Trusts, § 7-1.14: Who may Make a Lifetime Trust

A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. If you create the trust, you are referred to as the creator or grantor of the trust. A lifetime trust, also referred to as a living trust or "inter vivos" trust, is a trust that is created by the grantor during his or her lifetime. On the other hand, a testamentary trust is created upon the grantor's death. There are many different types of trusts and many reasons to create a trust. One important reason for having a living trust is that while a will must be probated, a trust does not. Probate is the legal process during which your executor winds up you estate and distributes your assets to you beneficiaries. Probate can be costly and can delay the distribution of assets. On the other hand a trust allows a relatively quick distribution of assets. Under New York Estate, Powers and Trusts, section 7-1.14, any person create a trust, as long as that person is at least 18 years old. However, creating a trust that meets your estate planning goals and that is consistent with New York law requires an understanding of the details of New York estate law. If you are considering creating a living trust, it is important that you contact an experienced New York Trust Lawyer who will help you make sure that your trust and other estate planning documents are executed or revoked in a manner that is consistent with New York law.

1. Person: Estates, Powers and Trusts, section 1-2.12
2. What property may be disposed of by lifetime trust: Estates, Powers and Trusts, section 7-1.15
3. Revocation of lifetime trust by will: Estates, Powers and Trusts, section 7-1.16
4. Execution, amendment and revocation of lifetime trusts: Estates, Powers and Trusts, section 7-1.17
5. Funding of lifetime trust: Estates, Powers and Trusts, section 7-1.18

The general requirement for making a lifetime trust is that you must be a person. A “person” is defined in EPTL 1-2.12, as not only an individual, but also an association, board, corporation, court, governmental agency, authority or subdivision, partnership or other firm or the state. If the creator of the trust is an individual, he or she must be at least 18 years old.

According to EPTL 7-1.17, in order for a living trust to be valid, it must:

1. Be in writing
2. Be acknowledged by the creator
3. Be acknowledged by at least one trustee, unless the creator is the sole trustee

The manner of acknowledgement must be the same as required for the recording of a conveyance of real estate. In lieu of such acknowledgement, the trust document may be signed by two witnesses.

It is important to remember that there are many different types of living trusts. In order for your trust to be effective for its intended purpose, it must be properly drafted using appropriate language. For example, special needs trusts are established to provide for the needs of loved ones with disabilities. Such a trust must be set up with the clear intent that it is not to be used to supplant, impair or diminish government benefits that the beneficiary is currently receiving or government benefits for which the beneficiary might otherwise qualify.

Any person, as defined in 1-2.12, may by lifetime trust dispose of real and personal property. A natural person who creates a lifetime trust shall be eighteen years of age or older.

A living trust is an estate planning tool that offers a great deal of flexibility. You can use it for a variety of goals such as leaving assets to loved ones, providing for a disabled relative, or protecting your assets. However, a trust is a complicated document, and in order to receive all of the benefits of a living trust and to minimize tax consequences it must be set up properly. Different types of trusts have different requirements that only someone with experience will understand. To learn more about how a living trust would fit into your estate plan contact Stephen Bilkis and Associates. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate issue.