NYLE: TRUSTS, WILLS AND ESTATES questions with
verified answers
B. Codicils: EPTL 3-2.1 Ans✓✓-A codicil requires the same formalities as a will. If
the codicil is not executed with the formalities of section 3-2.1, it is ineffective
and the will remains as originally executed.
B. Types of trusts
1. Revocable: EPTL 7-1.16, 7-1.17 Ans✓✓-If a trust provides that it is revocable, a
grantor may amend or revoke the trust in a writing that is executed and
acknowledged with the same formalities as the initial trust instrument (EPTL 7-
1.17 [a]). The governing instrument can eliminate the need for formalities, but all
revocations or modifications must be in writing. Additionally, the grantor may
revoke or amend a lifetime trust in his or her will, provided that he or she
specifically refers to the trust (EPTL 7-1.16).
B. Types of trusts
2. Irrevocable: EPTL 7-1.9, 7-1.16 Ans✓✓-A lifetime trust is irrevocable unless the
trust instrument expressly provides that it is revocable (EPTL 7-1.16).
Notwithstanding, an irrevocable trust may be revoked or amended pursuant to
EPTL 7-1.9 (see Trusts and Estates, V.D.).
B. Types of trusts
3. Testamentary: EPTL 3-2.1 Ans✓✓-A testamentary trust is a trust created in a
will. Consequently, a testamentary trust only becomes effective upon the death of
the testator.
B. Types of trusts
,4. Pour-over: EPTL 3-3.7 Ans✓✓-A testator may direct in his or her will that his
assets be poured over into a lifetime trust. This pour-over trust need not be
executed with the same formalities as a will and may be amendable or revocable,
but it must be in existence before or be executed contemporaneously with the
will. The trust must be in writing, signed by the creator and at least one trustee,
and either acknowledged like a deed or signed by two witnesses.
B. Types of trusts
5. Charitable, including cy pres: EPTL 8-1.1 Ans✓✓-In New York, a disposition for
charitable purposes is valid despite the lack of a definite or ascertainable
beneficiary. The state Attorney General represents beneficiaries of charitable
trusts. A charitable trust will not fail for lack of a trustee. Rather, title will pass to
the court with jurisdiction to appoint a trustee.
A charitable trust may be reformed under the cy pres doctrine. In order to reform
the charitable trust, a court must find the following three conditions:
· The gift or trust is charitable in nature;
· The language of the will or trust instrument indicates that the donor
demonstrated a general, rather than specific, charitable intent; and
· The particular purpose for which the gift or trust was created has failed, or has
become impossible or impracticable to achieve.
C. Alienability of trust interests and spendthrift trust provisions, rights of
creditors: EPTL 7-3.1, 7-1.5, 7-1.6, 7-3.4; CPLR 5201, 5205 Ans✓✓-In New York,
income interests in a trust are not alienable and therefore beyond the reach of
creditors (i.e., spendthrift protection), unless the grantor of the trust expressly
makes them alienable in the trust instrument (EPTL 7-1.5). For example, if a trust
directs income to A for life, remainder to B, A may not sell or assign his income
interest, and A's creditors cannot reach the income, unless the grantor provides
otherwise. Notwithstanding spendthrift protection, an income beneficiary may
assign all or part of his income to a spouse or children he is legally obligated to
support, or income over $10,000 per year to his heirs pursuant to an
, acknowledged document (EPTL 7-1.5 [N). In addition, EPTL 7-1.6 provides that a
court may in its discretion make an allowance from principal to any income
beneficiary for the beneficiary's support and education.
Remainder interests are freely alienable unless by specific provision in the trust,
the grantor makes the trust remainder inalienable. In the example above, B can
sell his remainder interest during his lifetime or bequeath it in his will, even if the
remainder interest is contingent.
Creditors of the creator and income beneficiaries have certain statutory rights.
For example, a disposition in trust by a creator for his own benefit (a self-settled
trust) is void against existing or subsequent creditors (EPTL 7-3.1). CPLR 5205 (d)
allows creditors to reach 10% of the income from a trust, and pursuant to EPTL 7-
3.4, unless a trust requires the accumulation of income, a creditor may levy
against the income in excess of what is necessary for the income beneficiary's
support and education.
C. Incorporation by reference Ans✓✓-In New York, the doctrine of incorporation
by reference is generally not recognized (Booth v Baptist Church of Christ of
Poughkeepsie, 126 NY 215, 247-248 [1891]). In other words, a will may not
incorporate by reference any document that was not signed and attested with the
formalities of EPTL 3-2.1. Exceptions have been carved out via statutes, such as
EPTL 3-3.7. Under section 3-3.7, a testator may direct in his or her will that the
assets be poured over into a lifetime trust. This pour-over trust need not be
executed with the same formalities as a will, but must be in existence before or
be executed contemporaneously with the will. The trust must be in writing,
signed by the creator and at least one trustee, and either acknowledged like a
deed or signed by two witnesses.
D. Amendment, revocation and termination: EPTL 7-1.9, 7-1.16, 7-1.17, 7-1.19,
72.2 Ans✓✓-If a trust is revocable (see EPTL 7.1.16, 7-1.17 [a]), the creator can
revoke the trust without the consent of the beneficiaries by written notice of
revocation delivered to at least one other trustee within a reasonable time if the
person executing the revocation is not the sole trustee (EPTL 7-1.17 [b]).
verified answers
B. Codicils: EPTL 3-2.1 Ans✓✓-A codicil requires the same formalities as a will. If
the codicil is not executed with the formalities of section 3-2.1, it is ineffective
and the will remains as originally executed.
B. Types of trusts
1. Revocable: EPTL 7-1.16, 7-1.17 Ans✓✓-If a trust provides that it is revocable, a
grantor may amend or revoke the trust in a writing that is executed and
acknowledged with the same formalities as the initial trust instrument (EPTL 7-
1.17 [a]). The governing instrument can eliminate the need for formalities, but all
revocations or modifications must be in writing. Additionally, the grantor may
revoke or amend a lifetime trust in his or her will, provided that he or she
specifically refers to the trust (EPTL 7-1.16).
B. Types of trusts
2. Irrevocable: EPTL 7-1.9, 7-1.16 Ans✓✓-A lifetime trust is irrevocable unless the
trust instrument expressly provides that it is revocable (EPTL 7-1.16).
Notwithstanding, an irrevocable trust may be revoked or amended pursuant to
EPTL 7-1.9 (see Trusts and Estates, V.D.).
B. Types of trusts
3. Testamentary: EPTL 3-2.1 Ans✓✓-A testamentary trust is a trust created in a
will. Consequently, a testamentary trust only becomes effective upon the death of
the testator.
B. Types of trusts
,4. Pour-over: EPTL 3-3.7 Ans✓✓-A testator may direct in his or her will that his
assets be poured over into a lifetime trust. This pour-over trust need not be
executed with the same formalities as a will and may be amendable or revocable,
but it must be in existence before or be executed contemporaneously with the
will. The trust must be in writing, signed by the creator and at least one trustee,
and either acknowledged like a deed or signed by two witnesses.
B. Types of trusts
5. Charitable, including cy pres: EPTL 8-1.1 Ans✓✓-In New York, a disposition for
charitable purposes is valid despite the lack of a definite or ascertainable
beneficiary. The state Attorney General represents beneficiaries of charitable
trusts. A charitable trust will not fail for lack of a trustee. Rather, title will pass to
the court with jurisdiction to appoint a trustee.
A charitable trust may be reformed under the cy pres doctrine. In order to reform
the charitable trust, a court must find the following three conditions:
· The gift or trust is charitable in nature;
· The language of the will or trust instrument indicates that the donor
demonstrated a general, rather than specific, charitable intent; and
· The particular purpose for which the gift or trust was created has failed, or has
become impossible or impracticable to achieve.
C. Alienability of trust interests and spendthrift trust provisions, rights of
creditors: EPTL 7-3.1, 7-1.5, 7-1.6, 7-3.4; CPLR 5201, 5205 Ans✓✓-In New York,
income interests in a trust are not alienable and therefore beyond the reach of
creditors (i.e., spendthrift protection), unless the grantor of the trust expressly
makes them alienable in the trust instrument (EPTL 7-1.5). For example, if a trust
directs income to A for life, remainder to B, A may not sell or assign his income
interest, and A's creditors cannot reach the income, unless the grantor provides
otherwise. Notwithstanding spendthrift protection, an income beneficiary may
assign all or part of his income to a spouse or children he is legally obligated to
support, or income over $10,000 per year to his heirs pursuant to an
, acknowledged document (EPTL 7-1.5 [N). In addition, EPTL 7-1.6 provides that a
court may in its discretion make an allowance from principal to any income
beneficiary for the beneficiary's support and education.
Remainder interests are freely alienable unless by specific provision in the trust,
the grantor makes the trust remainder inalienable. In the example above, B can
sell his remainder interest during his lifetime or bequeath it in his will, even if the
remainder interest is contingent.
Creditors of the creator and income beneficiaries have certain statutory rights.
For example, a disposition in trust by a creator for his own benefit (a self-settled
trust) is void against existing or subsequent creditors (EPTL 7-3.1). CPLR 5205 (d)
allows creditors to reach 10% of the income from a trust, and pursuant to EPTL 7-
3.4, unless a trust requires the accumulation of income, a creditor may levy
against the income in excess of what is necessary for the income beneficiary's
support and education.
C. Incorporation by reference Ans✓✓-In New York, the doctrine of incorporation
by reference is generally not recognized (Booth v Baptist Church of Christ of
Poughkeepsie, 126 NY 215, 247-248 [1891]). In other words, a will may not
incorporate by reference any document that was not signed and attested with the
formalities of EPTL 3-2.1. Exceptions have been carved out via statutes, such as
EPTL 3-3.7. Under section 3-3.7, a testator may direct in his or her will that the
assets be poured over into a lifetime trust. This pour-over trust need not be
executed with the same formalities as a will, but must be in existence before or
be executed contemporaneously with the will. The trust must be in writing,
signed by the creator and at least one trustee, and either acknowledged like a
deed or signed by two witnesses.
D. Amendment, revocation and termination: EPTL 7-1.9, 7-1.16, 7-1.17, 7-1.19,
72.2 Ans✓✓-If a trust is revocable (see EPTL 7.1.16, 7-1.17 [a]), the creator can
revoke the trust without the consent of the beneficiaries by written notice of
revocation delivered to at least one other trustee within a reasonable time if the
person executing the revocation is not the sole trustee (EPTL 7-1.17 [b]).
