Legal Question in Wills and Trusts in New York

Tom died in July, in New York, NY, leaving a 2004 will that, among other provisions, states, "I direct the largest amount that can pass free of Federal Tax by reason of the Unified Credit, the State Death Tax Credit, and any other estate credits allowed by the Internal Revenue Code, be distributed to a trust by my Executors and Trustees hereinafter mentioned for the benefit of my wife Mary..."

During Mary�s life she is to receive all of the net income of the trust and, if needed, portions of the principal. Upon Mary's death, Tom�s will continues, "my Trustee shall deliver the remaining trust principal and any accumulated income to my nephew, Brad."

After the tax exempt funds have been distributed to the trust, the will states "I give, devise, and bequeath all the rest, residue, and remainder of my estate, real and personal and mixed of whatsoever kind or nature and wheresoever situated of which I may die, seized, or possessed, unto my beloved wife, Mary...for her use and enjoyment absolutely and forever."

Tom owned a house, listed in his name only. Would that asset stand outside of the Trust? In other words, does the house become Mary�s possession, for her to sell or bequeath as she wishes?

Asked on 10/04/10, 12:32 pm

Arnold Nager Arnold H. Nager, Esquire

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The house becomes Mary's.

Answered on 10/09/10, 6:55 pm

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