and Your Family
Westchester County Will Trustee
While the primary purpose of a last will and testament is to specify how your property will be distributed after you pass away, there are many ways to design a will. One way to design a will is to include a testamentary trust. A trust is a fiduciary arrangement that allows the trustee you name to hold assets on behalf of a beneficiary or beneficiaries. A testamentary trust is a type of trust that is created by a will and goes into effect when the testator dies. The role of the person you name as the trustee is to manage the trust property and distribute it according to the terms of the trust agreement. Creating a last will and testament that will result in the establishment of a trust can be complicated. If you are considering include a trust as part of your will, you should contact an experienced Westchester County Will Trustee Lawyer who can explain to you how a testamentary trust works, including the duties of the will trustee.What are the Responsibilities of a Will Trustee?
A will trustee has responsibilities that are similar to the responsibilities of an executor. The job of the executor is to manage your estate once you pass away. Once your will is admitted to probate, the executor will inventory your assets, pay the estate's debts and then distribute your estate's assets to the beneficiaries you named in your will. A trust is an arrangement in which assets are managed by a trustee for the benefit of another person. Rather than leaving properly directly to a beneficiary under your will, in your will you create a trust and name a trustee who would manage the assets on behalf of the beneficiary under terms you specify. Will trusts are often used when leaving property to minors since minors are not able to managing such property themselves.Will a Will Trust Avoid Probate?
Probate is the legal process that occurs once the New York Surrogate's Court determines that a will is valid. The executor then officially takes over the administration of your estate. He or she will collect, inventory and appraise your assets, pay your estate bills, settle claims, and then distribute your assets to your beneficiaries. Depending on the size and complexity of your estate probate can take a few weeks or even a few years. If there is a will contest or any type of estate litigation, probate may be extended.
There are advantages to avoiding probate. If an asset does not part of the estate that is probated, then the beneficiary who you select to receive that asset will receive it a lot more quickly. Furthermore, probate can be expensive. Fees associated with probate will be paid out of estate assets. The more fees involved the fewer assets available for beneficiaries.
If an asset is not part of the estate that goes through probate, the beneficiaries will receive it sooner. One of the advantages of certain types of trusts is that trusts are not subject to probate. However, this is not the case with will trusts. A testamentary trust can only be established once the will that creates it goes into probate.How Should I Select the Trustee?
You should take great care when selecting a will trustee as the trustee will have a significant amount of responsibility and power in managing the trust assets. Accordingly, the trustee you select must be trustworthy. In addition, because the trustee will be responsible for making financial decisions related to the trust assets, the trustee should have a proven track record for making wise investment decisions. Furthermore, the trustee should have an understanding of the tax ramifications of business and investment decisions that he or she will make for the trust. The trustee should understand how to keep accurate business records, as he or she will be required to regularly provide an accounting to the trust beneficiaries regarding how the trust assets have been managed.
Because the trustee will have to interact with the beneficiaries quite frequently, you should select someone who is willing to take on this long-term responsibility. The trustee should also have the appropriate disposition to maintain a good working relationship with the trust's beneficiaries. With trust matters, the trustee must make the interests of the beneficiaries primary and avoid any conflict of interest with the beneficiaries.
In selecting a trustee, you may be tempted to select a family member or a close family friend. However, before making such an important decision, it is wise to consider all of the responsibilities of a trustee in order to determine if that person is the appropriate choice.
In addition to friends and family, you should also consider the advantages and disadvantages of appointing a corporate trustee. Managing a trust is a huge responsibility, with complex responsibilities, particularly if the trust has substantial assets. To make everyone comfortable with the idea of a corporate trust, you could also consider naming co-trustee along with the corporation. The co-trustee could be a trusted family member or friend.
The advantage of hiring a corporate trustee is that with a corporate trustee comes experience, particularly in handling the investment and recordkeeping duties. Furthermore, it may be easier for a corporate trustee to make objective decisions about distributions, causing fewer family squabbles about how the trust funds are managed and distributed. A significant downside to naming a corporate trustee is that corporate trustee charge hefty fees that would be paid out of trust funds, affecting the amount of money available to the beneficiaries.What are the Duties of a Trustee?
The main job of a trustee to carry out the terms of the trust for the benefit of the beneficiaries. This means that the trustee should not make trust decisions with his or her best interests in mind, but with the best interests of the trust and the trust beneficiaries. Depending on the purpose of the trust, the trustee has several responsibilities including recordkeeping, administration, and investment management.
Trust Administration. Administering the trust according to its terms can be a difficult task. It typically involves distributing assets to trust beneficiaries when they make requests, or making payments on behalf of beneficiaries. Beneficiaries can be demanding. It is up to the trustee to care for the current needs and wishes of the beneficiaries, while preserving trust assets for the future needs of the beneficiaries.
The trustee must also keep the trust beneficiaries reasonable informed about trust administration, including an accounting when appropriate or required by law.
Investment management. The trustee must actively manage the trust’s assets by making investment decisions that will help preserve the trust assets for the long-term needs of its beneficiaries. This is particularly important in cases where trust beneficiaries are children.
Recordkeeping. It is critical that the trustee keeps accurate records regarding the management of the assets of the trust. If the trust has substantial assets, the trustee may need to hire an accountant or financial planner to assist with the management of the trust's assets. The goal would be to maximize the trust assets, minimize tax obligations, while also distributing trust assets for appropriate purposes.
The trustee is responsible for tax preparation. He or she must make sure that the trust's tax returns are prepared accurately and filed timely. If the trust is audited, the trustee must resolve the audit, involving an accountant or tax attorney if necessary.
Setting up a will and a trust is a complex undertaking, involving an understanding of New York Estates, Powers and Trusts law. Do not try to complete this task on your own; it is important to work with someone who has experience creating wills and trusts. The staff at Stephen Bilkis & Associates, PLLC has years of experience designing comprehensive estate plans, including wills, trusts, and other estate planning tools. We will advise you on the best course of action for your specific estate planning concerns. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.