Separate the routes an asset may follow
The will, trust terms, and account beneficiary records can perform different functions. Ask who owned each asset at death and what legally effective direction applies to it. A trust’s name on a binder does not establish that a particular account or property was transferred to it. Similarly, an asset listed in an old planning worksheet may have been sold or retitled later.
EPTL § 13-3.2 addresses beneficiary rights under covered retirement, insurance, and related arrangements, protecting those rights from rules governing transfers by will or intestacy, subject to statutory qualifications. Obtain the actual beneficiary record and governing plan information instead of assuming that the will’s residuary clause changes the designation. Applicable federal rules and other restrictions also require review.
Prepare the probate inquiry accurately
Where a will is offered for probate, Surrogate’s Court Procedure Act § 1402 identifies who may petition and information the petition must contain. This includes identifying specified people and their addresses, so far as ascertainable with due diligence. Family relationships and contact information are substantive preparation, not minor clerical details.
Suppose the will names three beneficiaries, but the decedent also had a child from an earlier marriage. The family should disclose that relationship to counsel even if they believe the child receives nothing. The people named in a will and the people whose legal interests require examination are not necessarily the same group. Guessing or concealing a relationship can complicate the proceeding.
Keep the executor’s and trustee’s work distinct
The same person may be nominated to both roles, but should still identify the capacity in which each action is taken. An estate expense, a trust expense, and a beneficiary’s personal expense should not be combined simply because one person handles all the paperwork. Before transferring funds between accounts, determine the authority and purpose for the transfer.
For example, a house may require insurance and repairs while its transfer route is being reviewed. Identify who has authority to arrange that work and which funds can properly pay for it. Preserve invoices and explain any temporary payments made by relatives without promising automatic reimbursement.
Use the experience to improve an existing plan
During lifetime planning, compare the intended recipients with the current ownership and beneficiary records. Update the plan after significant family or asset changes, and tell the designated fiduciaries how to locate the original documents. A coordinated arrangement gives the family a clearer starting point without promising that every asset avoids probate or that administration will be immediate.
Related reading: Wills · Trusts · Probate and Estate Administration.
More information: The Law Office of Craig A. Fine, P.C. · The Fine Line Blog · Craig A. Fine author archive.
Attorney Advertising. General information, not legal advice. Reading this article does not create an attorney-client relationship. Advice depends on the facts and applicable law. Prior results do not guarantee similar outcomes.
Craig A. Fine, Esq.
Attorney and founder of The Law Office of Craig A. Fine, P.C., licensed in New York, New Jersey and Florida. Contributor covering residential and commercial real estate, business law, contracts, landlord-tenant matters, litigation, wills, trusts and estate planning.
