Legal Question in Wills and Trusts in New York

Re: Waiver of process

Your children should have received a copy of the Will with the notice. They are entitled to see it. If they have not received a copy they should request it from the executor. It is hard to answer your question without reading the language of the trust set up under the Will. If you'd like, you can FAX me a copy and I will try to interpret the language. Traditionally, in these instances (long-term trusts) the executor-trustee has discretionary rights to use income and principal for the children, and could use the funds for the purposes you question (education and purchasing a house). This discretionary right would depend upon the language in the Will. I know I include this type of language in the Wills I prepare, and it is somewhat general and many attorneys drafting Wills with these trusts also do so. Again, the language written is important as to what can and cannot be done.

Re: Waiver of process

What gets paid depends on the terms of the Trust Agreement. The "waiver" is so that the child does not have to receive a "citation" when the Will is probated.

It is reasonable to have each "child" ask for a copy of the Trust Agreement.

Re: Waiver of process

Ask for a copy of the Trust; it may be a separate agreement or it may be contained in your ex-husband's will. Have an attorney review it to determine your children's rights.

It would not be unusual to have a Trust that gave the Trustee discretion to pay "reasonable" expenses. Usually the Trustee has broad discretion as to what is reasonable. If your kids disagree, they can go to court and ask a judge to order the release of trust funds, but the Court will usually defer to the Trustee, so get a firm opinion from your attorney before going to court.