As a NY estate lawyer with more than two decades of experience probating NY wills for families we get some unconventional requests when planning estates. From people trying to set up trusts for their furry little pets, which there is nothing wrong with, to clients just trying to plan around their children’s requirements, everyone has their own individual estate planning needs. However as a NY estate lawyer I really recommend trying to keep your NY estate planning as simple as possible.
For some clients a simple NY will just will not cut it. For those NY estate planning clients seeking to do something more elaborate I should note that there are bounds within which your NY estate lawyer must remain when drafting your NY estate plan. One of the main parameters a NY estate lawyer must adhere to is the Rule Against Perpetuities.
The cardinal rule which every single NY estate lawyer learns in law school is EPTL 9-1.1(b) of the NY estate law known as the Rule Against Perpetuities. This is a fancy legal way of saying a NY will cannot control or alienate property in perpetuity, meaning forever. When your NY estate lawyer drafts your estate plan your property must vest, be handed over to someone or some entity at some fixed point in time. And according to the NY estate law’s Rule Against Perpetuities that property must vest no later than 21 years from a life in being.
To simplify this rather abstract legal principal to its basic form, your NY estate plan must disperse all of your property within twenty-one years from the date of death of a person who is alive at the time of your will’s drafting. Hence life in being plus twenty-one (21). For example if a client comes to their NY estate lawyer desiring to leave a building to their great grandchildren who are not even born yet the bequest would probably fail. The best they could do would be to leave the building to a living heir plus (21) years from the time of their passing. If their only living heir is a child it would be impossible to meet the requirements held within the Rule Against Perpetuities.
When provisions of a NY estate plan do not vest within a life in being plus twenty-one (21) years the provision fails and that portion of the NY estate plan fails as well. Any provision of a NY estate plan vesting longer than a life in being plus twenty-one years is deemed an unreasonable restraint on property and defeated by the Rule Against Perpetuities. Having said all that there are clients who push these rules of law successfully.
Who was Wellington R. Burt and why was his estate plan important?
Wellington R. Burt was an interesting character who became a very wealthy tycoon in the lumbar and iron industries. Often referred to as a robber baron, this industrialist amassed an estate in excess of One Hundred Million ($100,000,000.00) Dollars. It was not Wellington’s vast wealth that made his estate unusual so much as how it was distributed. You see Wellington’s heirs only received his estate recently. What makes Wellington R. Burt’s Estate incredible is that Wellington died at the age of 87 in 1919. The provisions of Wellington’s Estate did not provide for his Estate to vest for some 92 years after his passing.
How can this be? Wellington Burt had his estate lawyer draft his will more than 100 years ago stating, “my estate is to be distributed 21 years after the passing of my last grandchild”. As it turns out Wellington Burt’s last grandchild died in 1989, adding twenty-one years to that date and we get 2010. As such the Burt Estate finally vested 92 years after his passing in his great, great, great grandchildren.
It is said that Wellington R. Burt was a disagreeable man who fought with each and every one of his children. It was believed Wellington R. Burt drafted his will in this manner so that nobody within his family would realize any of his wealth for the longest period the NY estate law permits. In this case it was the life in being of his granddaughter who died in 1989 plus the 21 additional years totaling 92 years from the date of his passing. In the end the Burt Estate successfully gamed out the Rule Against Perpetuities which was both legal and symbolic. Burt’s Estate plan pushed the boundaries of the NY estate law as far as it could go while sending a clear message echoing for generations within his family. Of course Burt’s messaging was not lost on his children and grandchildren who repeatedly attempted to attack the estate plan in court claiming Wellington was in a diminished capacity at the time of his will’s inception. Unfortunately each of his heirs’ attempts to disrupt his estate plan failed because at its core the will complied in all respects with the estate law.
The moral I take from the Burt Estate as a NY estate lawyer is twofold. First be nice to your parents and grandparents and more importantly try to keep your NY estate plan as simple as possible. Had Wellington R. Burt not had great, great, great grandchildren 92 years after his death, the entire estate plan would have failed. Fortunately for Burt his estate plan did not fail and Burt successfully disinherited his children, grandchildren, and great grandchildren for as many generations as the NY estate law would allow. While it may have worked out in the Burt Estate, as a NY estate lawyer, I never want to push the envelope too far for fear of causing an unintended result.
If you or a loved one are thinking about planning your estate and would like to speak with a New York estate lawyer feel free to call The Law Offices of Jason W. Stern & Associates at (718) 261-2444 for a free consultation. Our New York estate lawyers have 60 years of combined New York estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, and Dutchess.
