Trusts & Estates includes a variety of practice areas that involve Surrogate’s Court and a specialized set of statutes known as the New York Surrogate’s Court Procedure Act.
Meenan & Associates can advise you in the procedures and law that govern trusts and estates matters, and represent you in Surrogate’s Court matters. Our firm also has experience drafting and funding a broad range of trust instruments to meet clients’ needs.
Meenan & Associates has been successful in a substantial number of cases admitting wills to probate, obtaining letters of administration for clients, preparing accountings and obtaining waivers and releases. Most notably, we have successfully represented litigants in complex and challenging will contests. Our attorneys also have experience serving as Guardian ad Litem in Surrogate’s Court matters, in which they represent the interests of minor, incapacitated or unknown persons, and research and write detailed reports to the court with their findings and recommendations.
Meenan & Associates can provide a full range of Trusts & Estates services that combine our extensive knowledge of Trusts & Estates law and procedure with our substantial litigation experience:
Will Contests & Estate Litigation
Probate & Administration
Will Contests & Estate Litigation
At times, dealing with the estate of a loved one who has passed can become more complex when it is discovered that the decedent’s intentions and last wishes have been disregarded, manipulated or exploited. For these reasons, it can be necessary for a family member or interested beneficiary to protect the intentions of the decedent by engaging in litigation to challenge improper conduct.
Meenan & Associates’ experience and knowledge in the area of estate litigation and will contests ensures that our firm provides the constructive advocacy our clients need to seek redress for any wrong doing that has occurred in connection with a decedent’s estate. Meenan & Associates assists our clients with the following:
Will Contests: When the Will of the decedent is offered for probate in Surrogate’s Court, there are times when its acceptance by the Court is challenged by a family member, a beneficiary, or a creditor of the estate, which leads to a “Will Contest.” The Court must be satisfied that the Will is valid before it accepts it and appoints an executor to handle the affairs of the estate. If a Will contest is successful, the Court may determine that all or parts of the Will are invalid. If the Court rejects the Will, then the estate of the decedent is distributed as if the decedent died without a will (by intestacy). There are specific bases for challenging or contesting a Will, such as:
Testamentary capacity: did the decedent have the required mental capacity in terms of being of sound mind when the Will was made?
Execution of the Will: was the Will properly witnessed and signed pursuant to the requirements of New York law?
Fraud: did the decedent only make the Will because another person lied to him/her and influenced him/her regarding how to divide the property in a way that went against his/her wishes?
Duress:did someone exert extreme pressure on the decedent to divide the property in a way that went against his/her wishes?
Undue influence: did someone exert strong influence over the decedent who was in a weakened mental state to put terms in his/her Will that he/she would not have put in the Will, so that the Will went against the decedent’s wishes?
Validity of Will(its genuineness or authenticity): was the Will forged or manipulated in some way that it does not appear to reflect the actual wishes of the decedent?
Administration Challenges: There are instances when the appointment of a fiduciary of an estate of a decedent, who died without a Will, is contested. Meenan & Associates is experienced in addressing challenges to an administration proceeding.
Contested Accountings: Accounting proceedings can be challenged by beneficiaries of the estate, by possible heirs or “distributees” of the decedent, and/or by possible creditors of the estate who claim they are owed money by the estate for debts incurred by the decedent.
Removal of Fiduciaries: If the fiduciary of an estate is claimed to have engaged in wrongdoing while serving as the estate representative or is believed to be unfit to serve, a Surrogate’s Court proceeding can be brought to remove that individual and seek the appointment of someone else to serve as the fiduciary.
Recouping of Estate Assets: If it is believed that assets belonging to the decedent were wrongfully taken while the decedent was alive, or that property of the decedent was not properly marshaled after the decedent passed by the fiduciary of the estate, a discovery and/or turnover proceeding can be brought in Surrogate’s Court to locate and recoup these misappropriated or unaccounted for estate assets.
Probate & Administration
An estate involves the property of an individual who has passed away. The death of a loved one tends to be an emotional experience. This loss is often compounded when the surviving family members are faced with having to navigate the estate of their loved one, and the distribution of his/her assets and property to the beneficiaries or heirs of the deceased’s estate.
Meenan & Associates’ brings its experience and knowledge in the area of estate proceedings and Surrogate’s Court practice and procedure ensures to assist clients in navigating the Surrogate’s Court after the death of a loved one. We assist our clients with the following:
Probate proceedings: A will is a written document expressing his/her wishes and directions regarding how his/her asset are to be distributed to the beneficiaries named in the Will. When a person dies having executed a Will, the Will must be admitted to probate in Surrogate’s Court. Meenan & Associates’ skill and experience ensures all issues involved in probate proceedings are addressed expeditiously, from preparing the required petition for probate and letters testamentary to diligently completing the process to ensure the issuance of Letters Testamentary to the Executor of the estate.
Administration proceedings: When a person dies without a Will, it is necessary for an administration proceeding to be brought in Surrogate’s Court. This proceeding is begun by the filing of a Petition for Letters of Administration, so that a person who is eligible can be appointed the Administrator of the deceased’s estate. The Administrator is responsible for gathering the decedent’s assets and property and distributing them to the decedent’s heirs or next of kin, known as his/her “distributees”. Meenan & Associates’ experience and diligence ensures all issues involved in administration proceeding are addressed expeditiously, from preparing the required petition through to the issuance of Letters of Administration to the fiduciary appointed to take care of the decedent’s affairs.
Accounting proceedings: Finalizing a decedent’s estate often involves bringing an accounting proceeding in Surrogate’s Court. This proceeding is brought in the Court that the initial probate or administration proceeding was filed. It involves the fiduciary of the estate accounting for the expenses and costs paid by the estate and to ensure the final distributions of to the heirs or beneficiaries of the decedent of their inheritance. Meenan & Associates helps its clients navigate this process, whether they are estate fiduciaries i.e., the Executor or Administrator of the estate, or the heir or beneficiary of the decedent’s estate.
Meenan & Associates provides personalized attention to clients in order to ensure that their goals are met and future plans are properly addressed. Meenan & Associates understands that it takes time to establish an estate plan that is right for each client and makes sure that each client is provided the appropriate level of attention. The law firm will guide each client through the estate planning documents and strategies that are appropriate for their situation.
Some examples of the estate planning documents considered are:
A Health Care Proxy is an important document in which an individual appoints a person he/she trusts to make medical decisions on his/her behalf in the event that he/she loses the ability to make those decisions for themselves. The health care agent can be given the power to make end-of-life decisions on behalf of the person appointing him/her. The health care agent can be anyone they choose – it does not need to be a family member. Health care professionals and facilities, such as doctors and hospitals, must follow the decisions of one’s health care agent.
A Living Will is a document that sets forth one’s wishes and choices with respect to end-of-life decisions, such as artificial feeding and hydration, mechanical respiration and CPR. If one is unable to communicate their wishes, the Living Will serves as a statement expressing their wishes and should be followed.
A Power of Attorney is a document which appoints an agent who will be entrusted to manage one’s finances, including to pay one’s bills, collect one’s income and benefits, and handle all other financial matters. An agent acting under a Power of Attorney can have substantial powers and access to one’s finances and assets, including real estate. As such, it is important that this individual is trusted.
Wills are legal documents that allow one to exercise control over the distribution of their assets after they die. If one does not make a Will, their estate will be divided based on the intestacy laws in the State of New York.
Trusts are arrangements by which a trustee takes control over one’s property that is held in the trust. Living trusts are those that are created while one is still alive. Trusts can also be created after one’s death based on the terms of their Will. Trusts can be designed to facilitate many different purposes; for example, to provide for a disabled loved one while not jeopardizing government benefits that they may be receiving, to provide for one’s pets, or to protect one’s legacy from a beneficiary’s creditor or from bad financial judgement.
There can be many factors to consider when deciding who to appoint as a health care agent or power of attorney, what authority they should be given, whether the agents should be compensated, whether one should set up a trust and who should be responsible for their estate or trust. These are not easy decisions to make and the firm guides its clients through the many considerations to create an estate plan that meets their particular situation and wishes.
Planning for the future ensures peace of mind and comfort that oneself and their loved ones will be properly cared for and provided for in the future. Meenan & Associates can effectively help their clients to plan a head.
A trust is a written legal document that creates a legal entity that can hold your assets and/or income. New York and federal law permit a variety of trusts, including revocable and irrevocable trusts created during your lifetime as well as testamentary trusts created in your Last Will &Testament.
Revocable Trust. A revocable trust can be revoked by the Grantor during his/her lifetime, but becomes irrevocable upon the Grantor’s death. Revocable trusts are a useful planning device to avoid the expense and time of probate. In addition, revocable trusts are helpful for individuals who wish to maintain their privacy. A Last Will and Testament must be filed in Surrogate’s Court to be probated after decedent’s death, and the heirs are entitled to receive a copy. A revocable trust, however, need not be filed with the court and generally, only the Grantor and Trustee receive a copy. Revocable trusts also are useful in the case of persons who own property in more than one jurisdiction, as they will help avoid an additional proceeding (ancillary probate) in the other jurisdiction.
Irrevocable Life Insurance Trust.An irrevocable trust can be used to hold a life insurance policy and can be the beneficiary of the policy. Such a trust has potential estate tax savings, because the proceeds of the life insurance policy can be removed from the taxable estate of the person who transferred the policy into the trust, if the transfer was made three years before the date of death.
A life insurance trust is often useful for liquidity purposes. For example, a single parent with minor children can benefit from putting in place a life insurance trust as part of estate planning. If the parent dies while the children are minors, the life insurance policy proceeds are payable to the trust and the Trustee will have immediate access to funds to meet the children’s needs, without waiting for the probate process to be completed.
Irrevocable Medicaid Asset Protection Trust. Individuals who anticipate requiring long-term care and wish to protect their assets for their loved ones may transfer assets into a Medicaid Asset Protection Trust. If the trust is properly drafted, Medicaid will not consider the assets in the trust as “available” or countable in determining whether a person is eligible for Medicaid benefits. Accordingly, these trusts are an important planning tool to enable individuals with assets above the Medicaid eligibility levels to be made eligible for Medicaid. There are specific requirements for such trusts in order for Medicaid to not count the trust assets, including that the person creating the trust (the Grantor) not be able to access the “principal” or assets of the trust. Depending on the nature of the assets transferred to the trust, the tax implications and the client’s preferences, the MAPT may provide that income be payable to the Grantor.
In the case of MAPTs that contain real property or cooperative apartments, the trust may provide that the Grantor has the continued right to use and occupy the premises during his/her lifetime, and the obligation to pay the carrying costs of the premises. This provision protects the Grantor’s right to continue to reside in their home, while simultaneously avoiding having the house be counted as an asset or having Medicaid seek recovery against the home upon the Grantor’s death.
Medicaid has a five-year look-back period for transfers, and any transfers made into a Medicaid Asset Protection Trust that are made within 5 years of an application for Medicaid are penalized.
Supplemental Needs Trusts. A supplemental needs trust (SNT) is a trust created for the benefit of a disabled person age 65 or under that allows that person to maintain important government benefits such as Medicaid. Ordinarily, in order to be eligible for Medicaid, SSI, and many other government benefits, individuals must meet certain income and resources requirements. However, the assets and, in some instances, incomedeposited into a properly drafted SNT are not calculated when determining a person’s eligibility for Medicaid and certain other government benefits. Consequently, beneficiaries of an SNT are able to benefit from the funds in the trusts, while still receiving the government benefits they would otherwise not be entitled to receive. The monies in the SNT can be used to supplement the benefits paid by Medicaid.
There are two types of SNTs: a first-party SNT is funded with the monies of the disabled person, and a third-party SNT is funded with the monies of someone else, usually a relative. The grantor in third-party trust can frequently fund such a trust without incurring normal transfer penalties; this is used frequently as a Medicaid planning tool for elderly parents of disabled children. For a first-party SNT, the trust must provide that the state receives the amounts remaining in the trust when the disabled person dies, up to the total amount of benefits paid by the state on behalf of the disabled person. For a third-party SNT, there is no requirement that the monies remaining in the trust be paid back to Medicaid when the person dies.
Pooled Trusts. A pooled trust is a trust for the benefit of a disabled person that is created and administered by a not-for-profit organization. Several specific organizations operate pooled trusts and have different requirements, such as minimum starting deposits and monthly fees. Similar to an individual SNT, a pooled trust allows a disabled person to be eligible for certain government benefits even if his or her resources exceed the eligibility levels for Medicaid and SSI. However, in a pooled trust, the assets of many disabled individuals are “pooled,” or held in a single trust, for management and investment purposes, with a separate subaccount for each individual. With a pooled trust, the balance remaining on the beneficiary’s death either goes to the pooled trust organization or to the State. Pooled trusts are available to persons over 65, but the funding of a pooled trust with the assets of a person over 65 will result in a Medicaid transfer penalty.
Pooled income trusts are used to protect the income that a disabled person receives in excess of the income levels to determine eligibility for government benefits. In order to receive Medicaid, individuals with an income greater than the maximum set by Medicaid ordinarily must pay the surplus income to the Human Resources Administration. Individuals with a pooled income trust, however, pay their excess to the not-for-profit trustee. The trustee then pays the individual’s expenses from the funds the individual deposits each month into the trust. For many people the existence of a pooled income trust enables them to continue living in the community, since few people can subsist on the maximum income allowable by Medicaid.
It is not uncommon for a person to maintain both types of pooled trusts – one for excess income and the other for excess resources (excess beyond the Medicaid maximums) and many of the not-for-profit organizations manage both types. In all these types of trusts, the beneficiary must be formally designated as disabled. If the beneficiary already receives Social Security Disability or Supplemental Security Income, that determination has already been made. If not, a disability determination has to be made.
Meenan & Associates works closely with clients to identify whether a trust is appropriate for them, based on their circumstances and goals, and, if so, to craft a trust specifically tailored to their needs and preferences. Meenan & Associates has years of experience drafting revocable and irrevocable trusts, lifetime and testamentary trusts, i.e., trusts in Wills, and trusts for a variety of purposes, including asset protection, estate and Medicaid planning, estate tax minimization and special needs planning.
Issues can arise with respect to the management of a trust, whether it is a living trust, an irrevocable trust, a special needs trust, a Medicaid protection trust, or any other kind of trust. These issues may impede the purpose of the trust and it can be necessary for a beneficiary to protect the intentions of the creator of the trust by engaging in litigation. There are also instances when the administration of a trust is challenged and the trustee needs to obtain legal representation to defend his or her actions.
Meenan & Associates’ experience and expertise in the area of trust litigation and Surrogate’s Court practice and procedure ensures that our firm provides the constructive advocacy our clients need to protect the trust creator’s intentions for their beneficiaries, and to seek redress for any wrong doing that has occurred in connection with a trust. Meenan & Associates assists our clients with the following:
Challenges to A Trustee’s Actions: A trustee’s actions can be challenged on the basis of the trustee breaching his or her fiduciary duty, by engaging in self-dealing, or by making imprudent investment or management decisions regarding the assets of the trust. A trustee may also be challenged for failing to make distributions from a trust that a beneficiary was entitled to receive, by failing to cooperate with beneficiaries or provide necessary information, or for having a conflict of interest, which adversely affected the management of the trust.
Accounting Proceedings: Beneficiaries of a trust can be concerned about how the trust has been financially managed and may want to hold the trustee to account for financial losses that appear to be caused by mismanagement. A trustee may have acted properly in performing his or her fiduciary duties, and not have engaged in mismanagement. In an accounting proceeding, a trustee is required to prove that he or she properly managed the trust’s assets and acted in accordance with their fiduciary duties.
Removal of Fiduciaries: If the fiduciary of a trust, the trustee, has acted in a way that appears he or she has failed to undertake their duties, it can be necessary to seek their removal as a fiduciary. A fiduciary removal proceeding involves proving that the trustee acted improperly under specific circumstances, such as engaging in financial mismanagement, using the fiduciary position for personal financial gain, or being hostile or uncooperative in working with others in a way that obstructs the administration of the trust.
Meenan & Associates’ has considerable experience in litigating these trust matters. The diligence and determination our firm provides in advocating for our clients ensures Meenan & Associates vigilantly protects our clients’ interests throughout the process, until their goals are achieved.
In addition to litigating on behalf of our clients in Surrogate’s Court, Meenan & Associates also has experience litigating trust-related matters in other courts, including federal district court and state Supreme Court.
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