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date of trust distribution?

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unclelou

Guest
What is the name of your state? State of NY:

In his will, Uncle Lou left a trust for his wife, which, upon her death, was to be distributed to his heirs as though he "had died intestate at the time of distribution." When she died, the living heirs were 1 surviving nephew (out of 6 neices/nephews) and 10 surviving greatneices/nephews. The disposition should therefore be 1/6 to the nephew and 1/10 of the remaining 5/6, or 1/12, (1/10 * 5/6 =1/12) to the each of the greatneices/nephews.

Now the problem is that the executors procrastinate and before the trust can be distributed, the nephew dies, leaving 3 surviving children. Thus, there are now 13 surviving greatnieces/nephews. The executors say that the nephew's 1/6 share gets divided equally among his children so that they each get 1/3 * 1/6 = 1/18, while the other greatnieces/nephews still get 1/12. A big difference!

QUESTION:

Since Uncle Lou's will says the trust should be distributed as though he "had died intestate at the time of distribution", is there a case for saying that all 13 greatnieces/nephews should get an equal share (1/13)?

Thanks for your free advice.
 


Dandy Don

Senior Member
The distribution, as already determined by the strict instructions of the trust, is what is going to be accomplished, and it can not be changed in the interest of making "equal" distribution amongst all of the beneficiaries. Be happy with what you are receiving--it is just a small difference and not a large one.
 
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unclelou

Guest
Dandy Don,

I guess what is small to some is large to others. The other 10 greatneices/nephews are getting $21K, while I and my 2 siblings are getting $14K.

The instructions that the greatuncle left was to distribute the trust as though he had "died intestate at the time of distribution". My point is that the trust has not been distributed yet, so all greatnieces/nephews should be on an equal footing since there are now no surviving direct nieces/nephews. Thus, each of us would get almost $19K.

Other legal opinions?

Walt
 
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Dandy Don

Senior Member
Equal footing can not apply and can never apply--the heirs of the deceased nephew are entitled to receive what he would have gotten, therefore there was never an equal footing to begin with.

DANDY DON
 
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unclelou

Guest
Ahhh - There's the problem. In NY, distribution is by representation. My father was getting 1/6 because he was the only one representing his generation. Now that he has passed away, the only representation is at the greatniece/greatnephew generation. If my father had died before uncle lou's wife, all of us greatnieces/greatnephews would have been treated equally. My father survived Lou's wife, but did not survive the DISTRIBUTION of the trust. And since the will explicitly states that the trust should be distributed as tho Lou had died "intestate at the time of DISTRIBUTION", shouldn't the disbursement be made, according to the laws of NY, "by representation"? Thus, all the greatnieces/greatnephews are treated equally.

Anyway, that's my interpretation; but I'm afraid that I don't have a case.
 

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