Trusts and Estates Outline

Trusts and Estates Outline

I. Introduction to Estate Planning
– In NYS Trusts & Estates is governed by statute: Estate Powers & Trusts Law (“EPTL”)
o NY ignores the UPC (Uniform Probate Code)
– Justifications and the Social Value of T&E law
o Generates revenue for the Gov’t
o To provide for dependents
o Creates an incentive for people to keep working hard (high work ethic)
o Prevent incentives to waste money
o Rewards for lifetime companionship and care
o Practically – very difficult to prevent future gratuitous transfers
o Cynical – legislatures want to leave money to their dependents
– Definitions
o Estate: Collection of all assets that decedent holds at the time of death.
o Testate: If the decedent dies with a valid will, the decedent is said to have died “testate”
o Testator: The person who dies leaving a valid will.
o Intestate: If the decedent dies w/o a valid will, the decedent is said to have died “intestate”
o Beneficiary: The person who benefits under a will. A person who is designated to benefit from an
appointment, disposition, or assignment (as in a will). One designed to receive something as a result of a legal arrangement or instrument.
o Legacy: A gift of personal property (often money) under a will.
o Legatee: The person who receives personal property under a will. One who has received a
legacy or bequest.
o Devise: A gift of real property under a will.
o Devisee: The person who receives real property under a will
o Bequest: A gift of personal property under a will.
o Trust: A devise for separating legal from beneficial ownership.
o Personal
Representative: The person appointed by the probate court to oversee the administrative process of
wrapping up and probating the decedent’s affairs
o Executor: What the personal representative is called if the decedent dies testate
o Administrator: What the personal representative is called if the decedent dies intestate or testatebut
the will fails to name a personal representative
– Intestacy Definitions
o Heirs: The people who take real property under intestacy. A person who, under the laws of
intestacy, is entitled to receive an intestate decedent’s property (esp. real property).
o Next of Kin: The people who take personal property under intestacy. The person most closely
related by blood to a decedent.
***Heirs and Next of Kin are used interchangeably to refer to anyone receiving property under a
State’s intestate scheme***
o Distributees: The people who take under intestacy in NY. A beneficiary entitled to payment.
o Successors: When people die, they go to probate court and for “letters testamentary.” A person
who succeeds to the office, rights, responsibilities, or place of another.
o Probate: To probate an estate means that the existence and validity of a will is proved. The
judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court.

Non-Probate Property

Distribution of non-probate assets does not involve a court proceeding – it is made in accordance with the terms of a K or trust or deed
Examples of non-probate property:

Joint Tenancy Property – the decedent’s interest vanishes at death, the survivor has the whole property relieved of the decedent’s participation, no interest passes.