Legal Question in Wills and Trusts in New York
Beneficiary
My father died 11/06. He designated my brother as executor, and also stipulated in his will the following: '' give, bequeath and devise all my real property or interest in real property including insurance policies related thereto to my beloved sons (xxx -me), per capita, IN TRUST as hereinafter described, and (xxx - my brother) , per stirpes, in equal shares, share and share alike. .....
In the event that my beloved son (xxx-me) should take under this will, then I give, bequeath and devise the share designated for my son to a trustee hereinafter named, IN TRUST,to apply to the use of the beneficiary of the trust at any time and from time to time, so much or all of any accumulated income or so much or all if the principal as the trustee, in his discretion may deem advisable for the support and welfare of the beneficiary; the trustee in his discretion may disregard the other income of the beneficiary herein and shall make such application, among other methods, by payments to the beneficiary herein or to the person with whom same shall reside.
My question is: does this mean that my brother has unlimited discretion to determine how my father's assets are distributed? He wants me to wait until I'm 62, which is 10 years from now.
1 Answer from Attorneys
Re: Beneficiary
I have not seen the full Will language, but this appears to be the creation of a Testamentary Trust (one created by Will) for your benefit, and subject to the terms of the Will. If the Will states that the trust is to remain in effect for 10 years, or until you reach age 62, you are bound by the language of the Will. The Executor must comply with the language of the Will and if it gives him discretion, he must act reasonably, but can make all reasonable decisions.
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