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Trust & Probate

Staten Island Trust & Probate Attorney

Contrary to popular misconceptions, “estate planning,” “trusts,” “probate” and “estate administration” are not terms that apply only to the affairs of the very wealthy. Just about everyone can profit from financial guidance when it comes to spending and saving, enjoying the present while preparing for the future. At Merlino & Gonzalez, our attorneys have the skills and sensitivity to assist clients of every income level.

While most individuals are aware of the purposes of a Last Will and Testament, many are unfamiliar with the benefits of trusts in estate planning. Trusts can serve many purposes for the grantor (the person leaving money or property to others), including :

  • Minimizing taxes
  • Avoiding the time-consuming, expensive process of probate
  • Managing assets for young, inexperienced, or thoughtless beneficiaries

When we establish a trust, we are basically setting up an arrangement whereby one person of your choosing holds property on behalf of one of your heirs. When we create trusts for your estate, we are helping you to authorize a third party -- the trustee -- to manage assets for the beneficiary you have named.

Types of Trusts

There are various types of trusts, each designed to meet a particular need. It is important to have a competent attorney so that the trusts created are legally binding and have the desired results.

Trusts for Minors

It is extremely common for our clients to leave money or property to their children or grandchildren. Putting such valuables in trust for their heirs is most often a good plan, both for our clients and for their heirs. Trusts serve as protective devices to ensure that youngsters receive money as needed for support, education, and medical expenses, but also stipulate when, and under what circumstances, the beneficiaries will inherit the full amount of their inheritance.

It is often written into the trust for a minor that the latter will reach a certain age, or accomplish a certain goal, such as graduating from college, before he or she is eligible to inherit the full amount of the bequest. Whether you are a parent, grandparent, friend or other relative, you may feel more comfortable putting your money in trust for your loved one since this enables you to maintain a greater measure of influence and guidance, even after you pass away.

Special Needs Trusts

There are a number of situations in which a beneficiary is an individual with special needs. Such a person may be mentally, physically, or psychologically challenged to the point that special arrangements must be made for his or her care. In most cases, people with special needs are receiving government assistance in the form of Medicaid or Medicare and such benefits would be jeopardized by their receipt of a sudden influx of money. In most cases, they would lose their benefits altogether.

Special needs trusts, in which the grantor appoints a trustee to administer the funds, allow the special needs individual to continue receiving government benefits because the money is not in his or her name. Instead, the trustee dispenses money to the beneficiary for expenses that will enrich the heir’s quality of life.

Marital Trusts

There are two reasons couples may want trusts for their spouses included in their wills, or drafted separately: to minimize taxes or for property protection. In years past, marital trusts were necessary for some couples to profit from estate tax exemptions. Though that is not the case right now, couples may want to be prepared in case the laws, as expected, change again.

Marital trusts are also frequently used when there is a second marriage. It is entirely possible, for example, that one spouse with children from an earlier marriage, wants to provide for her spouse during his lifetime, but thereafter wants her children to inherit what remains of her property. A marital trust ensures that this will happen.

Revocable Living Trusts

Revocable living trusts are designed to complement wills in order to fulfill the grantor’s wishes. Primarily used to avoid probate, especially in states in which probate is particularly difficult to navigate, these trusts may also be helpful for grantors who own land in multiple states.

Irrevocable Life Insurance Trusts

These trusts, also known as ILITs, can be utilized to keep life insurance benefits separate from the grantor’s estate. They are primarily used to protect such monies from being taxed as part of the estate.

Spendthrift Trusts

As the name indicates, spendthrift trusts are put into place to protect irresponsible individuals from their own reckless behavior, as well as from the creditors who pursue them. Spendthrift trusts work In much the same way special needs trusts do; the grantor puts a reliable trustee in charge of dispensing funds at his or her discretion, in this case so that the funds will assist the beneficiary without allowing that individual to fritter the money away. Our attorneys understand all types of trusts in depth and have the know-how to use them as means to protect your loved ones and your legacy.

Probate and Estate Administration

Probate is the court-supervised process through which the assets of the decedent are transferred to his or her designated beneficiaries. Before the beneficiaries receive their inheritance, however, the decedent’s debts and taxes must be paid. If the assets of the deceased have been put into properly crafted trusts, the executor should be able to administer the estate without probate. This is typically the best outcome because probate can be time-consuming and expensive, particularly if the estate is large and/or complex.

Steps of the Probate Process

Although one probate process may differ from another in small ways, the probate process most often includes the following steps:

  • Filing a petition with the appropriate probate court
  • Notifying heirs mentioned in the will (or statutory heirs if there is no will)
  • Petitioning appointment of the selected executor or a court-appointed administrator
  • Having the executor or administrator take a full inventory of the estate
  • Having the estate’s assets appraised by professionals
  • Expediting payment of estate debts to legitimate creditors
  • Selling any estate assets that need to be sold
  • Paying any necessary estate taxes
  • Making a final distribution of assets to legitimate heirs

The time and costs of probate may vary, influenced by such factors as the existence of a will, the size and intricacies of the estate, and the location of properties owned by the decedent. If anyone contests the will or disputes with creditors arise, the process will no doubt be longer and more expensive.

Even without complications, there are expenses inherent in the probate process, such as executor fees, attorney fees, accounting fees, court costs, appraisal costs, and surety bonds. Executors are reimbursed for their hard work and diligence. Executors in New York State, in addition to being routinely reimbursed for any legitimate out-of-pocket expenses they incur as they manage and distribute the estate, also receive 5 percent on the first $100,000 of the estate and lesser percentages incrementally if the estate is larger. In exchange for these fees, the executor is held accountable for performing his or her duties with integrity and, if necessary, with professional assistance.

Executor fees in New Jersey are paid somewhat differently. In New Jersey, the executor’s compensation is distributed in the form of a commission, the amount of which is determined by a state statute. The statute establishes that a New Jersey executor is entitled to a 6 percent commission of any income the estate earns.

Probate costs are typically estimated to be up to 5 to 7 percent of the estate’s total value and most estates that have to go through probate are settled in approximately 9 to 18 months. If there is any litigation involved, the process will, obviously, take longer.

Non-Probate Assets

Whether or not trusts have been created, there are certain types of assets that do not have to go through the process of probate. These non-probate assets include:

Property owned jointly with “right of survivorship” Retirement accounts, like IRAs or 401ks, which already have designated beneficiaries Life insurance policies with designated beneficiaries Bank accounts with “payable upon death” (POD) or “in trust for” designations Property owned by a living trust -- as described earlier

Contested Wills

Wills can only be contested by individuals who have “legal standing” to raise objections, generally speaking children or spouses of the decedent. Careful legal work during estate planning almost always avoids contested wills. The attorneys at our offices are fully aware of the situations that tend to provoke contested wills and know precisely how to avoid them. Typically, wills are contested when a child is left out of a will, when siblings are left unequal inheritances, or when there has been a change from an earlier version of the will. In some cases, the choice of the executor is questioned.

How Merlino & Gonzalez Can Help

As you plan to save for your retirement, preserve your assets, and protect the future of your loved ones, the knowledgeable attorneys at Merlino and Gonzalez are well-prepared to help you. Our fervent commitment to listening to you carefully helps us to assist you in developing realistic goals. Our familiarity with all aspects of estate planning -- drafting wills, establishing trusts, avoiding probate, minimizing taxes, protecting your assets, avoiding family conflicts -- enables us to help you realize them. Contact us today.



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394 Manor Road, Staten Island, NY 10314
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