Legal Question in Wills and Trusts in New York

My father passed away & his Condo, IRA & several investments were put into His Irrevocable Family Trust 3 years before his 2nd marriage. My brother & I are the sole beneficiaries. His wife has exercised her right of election pursuant to section 5-1.1-A of NY estates, powers and trusts. I want to know if the following statement means the Trust will protect that or if she is still entitled to it s well as all that is in probate:

Notwithstanding the foregoing, a transaction, other than a transaction described in clause (G), that is irrevocable or is revocable only with the consent of a person having a substantial adverse interest (including any such transactions with respect to which the decedent retained a special power of appointment as defined in 10-3.2), will constitute a testamentary substitute only if it is effected after the date of the marriage.

(G) Any money, securities or other property payable under a thrift, savings, retirement, pension, deferred compensation, death benefit, stock bonus or profit-sharing plan, account, arrangement, system or trust, except that with respect to a plan to which subsection (a) (11) of section four hundred one of the United States Internal Revenue Code applies or a defined contribution plan to which such subsection does not apply pursuant to paragraph (B) (iii) thereof, only to the extent of fifty percent of the capital value thereof. Notwithstanding the foregoing, a transaction described herein shall not constitute a testamentary substitute if the decedent designated the beneficiary or beneficiaries of the plan benefits on or before September first, nineteen hundred ninety-two and did not change such beneficiary designation thereafter. (H) Any interest in property to the extent the passing of the principal thereof to or for the benefit of any person was subject to a presently exercisable general power of appointment, as defined in section two thousand forty-one of the United States Internal Revenue Code, held by the decedent immediately before his or her death or which the decedent, within one year of his or her death, released (except to the extent such release results from a lapse of the power which is not treated as a release pursuant to section two thousand forty-one of the United States Internal Revenue Code) or exercised in favor of any person other than himself or herself or his or her estate.

Thank you -


Asked on 9/02/16, 1:20 pm

1 Answer from Attorneys

Bunji Fromartz Fromartz Law Offices

This is too specific a question to answer here. There is also more information needed before the question can be answered. You need to have consultation with an estate attorney asap.

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Answered on 9/23/16, 5:21 am


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