Complex Will with Trust - New York

COMPLEX WILL WITH TESTAMENTARY TRUST

(New York – Court-Ready Template)

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Revocation of Prior Instruments
4. Appointment of Fiduciaries
5. Payment of Debts, Expenses & Taxes
6. Specific Bequests & Devises
7. Residuary Estate and Testamentary Trust
8. Trustee Powers, Duties & Standards
9. Fiduciary Compensation, Indemnification & Liability
10. No-Contest Provision
11. Governing Law & Forum Selection
12. General Provisions
13. Execution Block
14. Attestation & Self-Proving Affidavit

1. DOCUMENT HEADER

LAST WILL AND TESTAMENT OF [TESTATOR FULL LEGAL NAME]

This Last Will and Testament (the “Will”) is executed on this ___ day of __________, 20__ (the “Effective Date”) by [TESTATOR NAME], a resident of the County of [COUNTY], State of New York (the “Testator”).

RECITALS
A. Testator is of legal age, of sound mind, and acting free of undue influence.
B. Testator desires to provide for the disposition of Testator’s property at death, establish a testamentary trust, and appoint fiduciaries to administer the estate and trust in accordance with New York law.

2. DEFINITIONS

Unless the context clearly indicates otherwise, the following terms have the meanings set forth below. Defined terms are capitalized throughout this Will.

“Administrator” – Any fiduciary appointed by a court when the nominated Executor is unable or unwilling to serve.

“Beneficiary” – Any person or entity entitled to receive a distribution under this Will or the Trust, including contingent interests.

“Child” or “Children” –

“Executor” – The individual or entity nominated in Section 4.1.

“Fiduciary” – Collectively, the Executor, Trustee, Guardian, and any successor appointed under this Will.

“GST Tax” – The federal generation-skipping transfer tax imposed under I.R.C. Chapter 13.

“Trust” – The Testamentary Trust created in Article 7.

“Trustee” – The individual(s) or entity(ies) nominated in Section 4.2 to administer the Trust, and any successor Trustee.

3. REVOCATION OF PRIOR INSTRUMENTS

3.1 Complete Revocation. Testator hereby revokes all prior wills, codicils, and testamentary dispositions previously made by Testator.

4. APPOINTMENT OF FIDUCIARIES

4.1 Executor.
(a) Nomination. Testator nominates [PRIMARY EXECUTOR NAME] as Executor.
(b) Successor Executor(s). If the Primary Executor does not serve or continue to serve, Testator nominates in the following order:
(i) [1ST SUCCESSOR EXECUTOR];
(ii) [2ND SUCCESSOR EXECUTOR].

4.2 Trustee.
(a) Nomination. Testator nominates [PRIMARY TRUSTEE NAME] as Trustee of the Trust.
(b) Successor Trustee(s). If the Primary Trustee does not serve or continue to serve, Testator nominates in the following order:
(i) [1ST SUCCESSOR TRUSTEE];
(ii) [2ND SUCCESSOR TRUSTEE].

4.3 Guardian of Minor Children. If at Testator’s death any Child is under eighteen (18) years of age, Testator nominates [PRIMARY GUARDIAN NAME] to serve as Guardian of the Person and Property of such Child, with [SUCCESSOR GUARDIAN NAME] as successor.

4.4 Bond Waiver. To the fullest extent permitted by law, no Fiduciary shall be required to furnish bond or other security.

5. PAYMENT OF DEBTS, EXPENSES & TAXES

5.1 Expenses and Claims. The Executor shall pay Testator’s just debts, funeral and burial expenses, estate administration expenses, and all properly allowed claims.

5.2 Taxes.
(a) Apportionment. All estate, inheritance, and similar transfer taxes (exclusive of any taxes attributable to property not passing under this Will) shall be paid from the residuary estate without apportionment, except as provided in Section 5.2(b).
(b) GST Tax. Any GST Tax attributable to property passing to a skip person shall be charged against that property.

6. SPECIFIC BEQUESTS & DEVISES

6.1 Tangible Personal Property. Testator bequeaths all tangible personal property to [BENEFICIARY NAME], if living, otherwise to the Residuary Beneficiaries. Testator may leave a separate written memorandum expressing wishes regarding the distribution of particular items of tangible personal property; because New York does not authorize a will to incorporate an unexecuted separate writing by reference (New York has not adopted UPC § 2-513, and EPTL § 3-2.1 requires that testamentary dispositions be executed with will formalities), any such memorandum is precatory only and not legally binding.

6.2 Cash Bequests. Testator directs the Executor to distribute the following cash bequests free of tax and expense:
(a) $[AMOUNT] to [BENEFICIARY];
(b) $[AMOUNT] to [CHARITY] (EIN [________________________]).

6.3 Real Property. Testator devises Testator’s interest in the real property located at [ADDRESS] to [BENEFICIARY], subject to liens and encumbrances of record.

7. RESIDUARY ESTATE AND TESTAMENTARY TRUST

7.1 Creation of Trust. All property comprising the residuary estate (the “Trust Estate”) shall pour over into the Trust hereby created and governed by this Article 7.

7.2 Trust Name. The trust shall be known as the “[TESTATOR NAME] Family Trust” (the “Trust”).

7.3 Primary Purpose. The Trust is established to provide for the health, education, maintenance, and support (“HEMS”) of the Beneficiaries, and to preserve assets for succeeding generations.

7.4 Beneficiaries & Distribution Provisions.
(a) Initial Beneficiaries. During the lifetime of Testator’s spouse, [SPOUSE NAME] (“Spouse”), the Trustee shall distribute so much of the net income and principal as the Trustee, in the Trustee’s sole and absolute discretion, deems necessary or advisable for Spouse’s HEMS, considering other resources reasonably available to Spouse.
(b) Children. Upon the death of Spouse or if Spouse predeceases Testator, the Trustee shall divide the remaining Trust Estate into equal shares per stirpes for Testator’s Children then living and the issue of any deceased Child, with each share to be held in a separate Descendant’s Trust subject to the following terms:
(i) Mandatory Income. All net income shall be distributed at least annually to the Child/issue.
(ii) Discretionary Principal. The Trustee may distribute principal for HEMS.
(iii) Vesting & Termination. Each Descendant’s Trust shall terminate upon the Beneficiary attaining age ☐, at which time the Trustee shall distribute all remaining assets outright.
(c) Default Beneficiary. If no issue of Testator survive the termination of the Trust, the Trust Estate shall pass to [REMOTE BENEFICIARY] in equal shares, per capita.

7.5 Spendthrift Provision. No interest in this Trust shall be assignable or subject to creditor claims, attachment, or legal process prior to actual receipt by a Beneficiary.

7.6 Termination. The Trust shall terminate upon the later of (i) the death of the last surviving Beneficiary described in Section 7.4, or (ii) twenty-one (21) years after the death of the last to survive of the Beneficiaries described in Section 7.4 who were living at Testator’s death, but in no event beyond the period permitted under the New York Rule against Perpetuities (EPTL § 9-1.1), which measures the permissible period by lives in being at the creation of the estate plus twenty-one (21) years (New York has not adopted a flat ninety-year permissible period).

8. TRUSTEE POWERS, DUTIES & STANDARDS

8.1 Incorporation of Statutory Powers. The Trustee shall have all powers granted to a trustee under EPTL § 11-1.1 and SCPA, including the power to retain, invest, reinvest, and mortgage Trust assets, without limitation by any statute relating to investment by fiduciaries.

8.2 Discretion. Discretionary distributions shall be exercised in good faith under the distribution terms of this Will, with due regard to the interests of current and remainder Beneficiaries. The Trustee shall invest and manage Trust property under the prudent investor standard of EPTL § 11-2.3.

8.3 Recordkeeping & Reporting. The Trustee shall maintain accurate accounts and shall provide annual statements to the adult Beneficiaries and the Guardians of minor Beneficiaries.

8.4 Directed Trusts.

9. FIDUCIARY COMPENSATION, INDEMNIFICATION & LIABILITY

9.1 Compensation. The Executor (and any other fiduciary other than a trustee) shall be entitled to statutory commissions pursuant to SCPA § 2307, and any Trustee shall be entitled to statutory commissions pursuant to SCPA § 2309 (individual trustee) or § 2312 (corporate trustee), unless such Fiduciary waives compensation in writing.

9.2 Indemnification. A Fiduciary may be reimbursed from the estate or Trust for reasonable expenses properly incurred in good-faith administration, to the extent permitted by law. This provision does not indemnify a Fiduciary for a failure to exercise reasonable care, diligence, or prudence.

9.3 Liability. No provision of this Will limits a Fiduciary's personal liability or a beneficiary's remedy where New York law does not permit that limit.

9.4 Standard of Care. Each Executor and Trustee shall exercise reasonable care, diligence, and prudence. Nothing in this Will exonerates a Fiduciary from liability for failing to meet that standard. See EPTL § 11-1.7.

10. NO-CONTEST (IN TERROREM) CLAUSE

If a Beneficiary contests this Will or a Trust created under it in a manner that is subject to an enforceable no-contest condition under EPTL § 3-3.5, any share given to that Beneficiary shall pass as though the Beneficiary had predeceased Testator without issue. This clause does not cause forfeiture for acts protected by EPTL § 3-3.5, including a probable-cause contest asserting forgery or revocation by a later will; an infant's or incompetent person's opposition to probate; an objection to jurisdiction; disclosure of probate information; refusal to join in probate or waive notice; a preliminary examination under SCPA § 1404; or a proceeding to construe this Will. It also does not penalize a challenge to a fiduciary immunity prohibited by EPTL § 11-1.7(c).

11. GOVERNING LAW & FORUM SELECTION

11.1 Governing Law. All questions pertaining to the validity, construction, and administration of this Will and any Trust created hereby shall be determined in accordance with the internal laws of the State of New York (without regard to its conflict-of-laws principles), including EPTL and SCPA.

11.2 Court and Venue. Proceedings concerning this Will or a Trust created under it shall be brought in a court with jurisdiction and proper venue under applicable law. For a decedent domiciled in New York at death, SCPA § 205 generally places Surrogate's Court venue in the county of that domicile. References to the “Court” below mean the court properly exercising jurisdiction over the proceeding.

11.3 Arbitration and Jury Trial. This Will does not require arbitration. A party may demand a jury trial on a controverted question of fact in a probate proceeding as provided in SCPA § 502. This Will imposes no jury waiver.

11.4 Injunctive Relief. The Court may grant injunctive relief to enforce the Trust or restrain breaches of fiduciary duty when authorized by applicable law.

12. GENERAL PROVISIONS

12.1 Severability. If any provision of this Will is determined to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

12.2 Headings. Headings are for convenience only and shall not affect construction.

12.3 Gender & Number. References to the singular include the plural and vice versa; references to any gender include all genders.

12.4 Definitions Incorporated. All capitalized terms have the meanings set forth in Article 2.

12.5 Execution. Execute this Will as one complete instrument under the formalities in EPTL § 3-2.1 currently in effect. The Testator shall sign at the end, declare this instrument to be the Testator's will to each attesting witness, and have at least two witnesses attest and sign with their residence addresses within the statutory period. A copy or electronic transmission is not a substitute for the signed original under this clause.

12.6 Entire Instrument. This Will constitutes Testator’s entire testamentary plan, superseding all prior wills and codicils.

13. EXECUTION BLOCK

IN WITNESS WHEREOF, I, [TESTATOR NAME], have subscribed my name to this Will on the date first written above in the presence of the undersigned witnesses, who at my request and in my presence, and in the presence of each other, have hereunto subscribed their names as attesting witnesses.

_________________________________
[TESTATOR NAME], Testator

ATTESTATION CLAUSE
We, the undersigned, hereby declare under penalties of perjury that on the date written above, [TESTATOR NAME], the Testator, declared this instrument to be Testator’s Last Will and Testament, signed it in our presence, and requested us to act as witnesses, and that we, in Testator’s presence and in the presence of each other, signed our names as witnesses. We further declare that Testator appeared to be of sound mind and not under duress, restraint, or undue influence.

14. SELF-PROVING AFFIDAVIT

(State of New York)
(County of __________)

We, the undersigned attesting witnesses, being duly sworn, depose and say:

1. The instrument shown to us is the Will of [TESTATOR NAME] that we witnessed on [__/__/____]. The Testator signed at the end of the Will in our presence, or acknowledged to each of us that the signature there was the Testator's signature.
2. During the execution ceremony, the Testator declared to each of us that the instrument was the Testator's Will.
3. At the Testator's request, we each signed as an attesting witness at the end of the Will and wrote our residence address. We both did so within one thirty-day period.
4. At execution, the Testator appeared competent to make a Will and free of restraint, duress, and undue influence.

_________________________________ ___________________________________
Witness 1 (Signature) Witness 2 (Signature)

Witness 1 name and residence address: [________________________________]

Witness 2 name and residence address: [________________________________]

Subscribed and sworn to before me on this [____] day of [____________], 20[____], by the above-named witnesses.

_________________________________
Notary Public
My Commission Expires: __________