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By John M. Bigler A major concern for many middle-class seniors is the best way to plan their estate to most effectively pass their assets to their beneficiaries at the time of death. Recently, many people have considered setting up a revocable trust rather than preparing a will.
As has been demonstrated from our earlier articles on revocable trusts, this vehicle is not effective in protecting assets for Medicaid eligibility, as the assets in the trust are still considered available to the applicant. The trust has also been advertised as a way of avoiding litigation by family members regarding the estate. The idea of a revocable trust is to put all of one's assets in a trust during lifetime, typically naming oneself as trustee with an alternate trustee (to take over upon death) who will collect the assets in the trust and distribute them to the beneficiaries named in the trust. In this way, it is theoretically not necessary to file or probate one's will with the court. For the benefit of our readers, I thought it wise to speak with the people who deal with these issues regularly. With the help of Joe Gibbons of Southold, a well-known estate planning attorney, I was fortunate to have an interview with Surrogate Judge A. Gail Prudenti and her Chief Clerk Michael Cipollino. The Suffolk County Surrogate's Court, where all estate matters are handled under the guidance of Judge Prudenti, is one of the most respected and efficient Surrogate's Courts in the state. There are more than 40 employees including the Chief Clerk, Deputy Chief Clerk and five attorneys in the law department. There are departments for probate of wills, administration of intestate estates, guardianship proceedings, adoptions accountings and records. Judge Prudenti emphasizes that the purpose of the Surrogate's Court is to serve the public, pointing out that the employees in this Court are public servants whose main purpose is to be of assistance. "We like the public to take advantage of our service". Both the Judge and her staff make themselves available to speak to various groups including senior citizen centers. Judge Prudenti points out that one of the fears people have of probating a will is that the cost will be excessive. However, she noted that for small estates there are simplified procedures that typically don't require the need to retain an attorney. For larger estates it is necessary to retain an attorney but the Judge points out "attorneys fees should be very clear-cut. It is appropriate to ask an attorney how much it is going to cost". The Judge warns that the idea of settting up a revocable trust to avoid legal fees at the time of death may not always be wise. Many unsuspecting clients may end up paying as much to set up a revocable trust as they would save later at the time of probate. The Judge also advises that revocable trusts don't necessarily avoid probate, because more often than not, not all of the assets are placed in the trust and there is still the need to probate for assets not in the trust. Also, if there is a family disagreement, then possibly the best place for it to happen is in the court setting. "The Court can oversee the will on behalf of the deceased who can no longer protect themselves. The court is there to protect the decedent's wishes," said Judge Prudenti. The Judge noted that when a family is upset, "someone has to take a cool, hard look and weigh the equities." Joe Gibbons, who has handled many family disputes of this nature, states that if there is going to be a problem in the family, "I want the case to be under the Court's authority". The Judge stated that the Court has been witness to increasing litigations by individuals attempting to set aside revocable trusts and that the idea of relying on revocable trusts to avoid litigation over will contents is a fallacy. Reprinted with permission of the Suffolk Times © 1999 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
People who travel to states such as Florida or California, where trusts are very popular, have often returned to New York believing a revocable trust is essential. Seminars in which the benefits of revocable trusts are espoused have been sprouting up everywhere. They have been advertised as solving all estate planning problems including avoiding probate with streamlined administrative procedures, reducing estate costs, providing significant tax savings and have even advertised to assist in Medicaid eligibility.