Report in support of Office of Court Administration Proposed Legislation to Amend EPTL § 3-3.7 relating to testamentary disposition to trustee under or in accordance with terms of existing inter vivos trust
Section 3-3.7 of the New York Estates, Powers and Trusts Law (the “EPTL”) permits a testator to make a testamentary gift to a trust, regardless of whether or not the trust holds any property during the testator’s lifetime, provided that the trust instrument was “executed in the manner provided for in [EPTL §] 7-1.17 prior to or contemporaneous with the will.” The Trusts, Estates and Surrogate’s Courts Committee issued a report in support of proposed legislation by the Office of Court Administration (OCA 2016-76) which would make two amendments to EPTL § 3-3.7. One is intended to clarify that the trust need not hold any assets prior to the death of the testator, and the other is intended to allow a trust instrument created by the testator, as grantor, to be signed by a third party trustee AFTER the execution of the testator’s will, provided that the testator signed the trust agreement prior to or contemporaneous with the will. The first change is intended to resolve an apparent conflict in the EPTL. The second is intended to address the holding in Matter of D’Elia, 40 Misc.3d 355 (Surrogate’s Court, Nassau County 2013). In addition, the proposed legislation would make additional changes to make the statute gender neutral.