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New York Estates, Powers and Trusts Law Section 3-3.7 - Testamentary Disposition To Trustee Under, Or In Accordance With Terms Of Existing Inter Vivos Trust

Legal Research Home > New York Lawyer > Estates, Powers and Trusts > New York Estates, Powers and Trusts Law Section 3-3.7 - Testamentary Disposition To Trustee Under, Or In Accordance With Terms Of Existing Inter Vivos Trust

  § 3-3.7. Testamentary disposition to trustee under, or in accordance with
            terms of existing inter vivos trust
    (a)  A  testator or testatrix may by will dispose of or appoint all or
  any part of his or her estate to a trustee of  a  trust,  the  terms  of
  which  are evidenced by a written instrument executed by the testator or
  testatrix, the testator or testatrix and  some  other  person,  or  some
  other  person,  including  a  trust  established  for the receipt of the
  proceeds of an annuity or pure  endowment  contract,  or  of  a  thrift,
  savings,   pension,   retirement,   death   benefit,   stock  bonus,  or
  profit-sharing plan or system or a funded or unfunded life, group  life,
  industrial  life  or  accident  and  health insurance trust although the
  settlor has reserved any or all rights of  ownership  of  the  insurance
  contracts,  regardless of the existence, size or character of the corpus
  of such insurance  trust  or  other  trust;  provided  that  such  trust
  instrument is executed in the manner provided for in 7-1.17, prior to or
  contemporaneously  with  the  execution  of  the  will,  and  such trust
  instrument is identified in such will.
    (b) The testamentary disposition or appointment is valid, even though:
    (1) The trust instrument is amendable or revocable, or both, provided,
  however, that the disposition or appointment shall be  given  effect  in
  accordance  with  the  terms  of  the  trust  instrument,  including  an
  amendment thereto, as  they  appear  in  writing  on  the  date  of  the
  testator's   death   and,  where  the  testator  so  directs,  including
  amendments to the trust instrument after his death,  if  the  instrument
  evidencing  such  amendment  is  executed and acknowledged in the manner
  herein provided for executing and acknowledging the instrument which  it
  amends.
    (2) The right is reserved in such trust instrument (A) to exercise any
  power  over  any  property transferred to or held in the trust or (B) to
  direct during the lifetime of the  settlor  or  any  other  person,  the
  persons and organizations to whom or in whose behalf the income shall be
  paid or the principal distributed.
    (3) The trust instrument or any amendment thereto was not executed and
  attested in accordance with the formalities prescribed by 3-2.1.
    (c) The property so disposed of or appointed by will becomes a part of
  the  trust  to which it is given, and title thereto vests in the trustee
  to be administered and disposed of in accordance with the terms  of  the
  trust instrument.
    (d)  Any  disposition or appointment to the trustee made by a testator
  who died prior to the effective date of this  section,  which  would  be
  invalid  under  the  applicable  law  of  this  state  pre-existing  the
  effective  date  of  this  section,  shall  be  construed  to  create  a
  testamentary  trust  under and in accordance with the terms of the trust
  instrument which the testator originally  intended  should  embrace  the
  property  disposed  of  or appointed, as such terms appear in such trust
  instrument at the date of the testator's death.
    (e) A revocation or termination of the trust before the death  of  the
  testator  shall cause the disposition or appointment to fail, unless the
  testator has made an alternative disposition.

Last modified: July 31, 2006