2023 New York Laws › EPT - Estates, Powers and Trusts › Article 3 - Substantive Law of Wills › Part 3 - Rules Governing Testamentary Dispositions › 3-3.7 - Testamentary Disposition to Trustee Under, or in Accordance With Terms of Existing Inter Vivos Trust

§ 3-3.7 Testamentary disposition to trustee under, or in accordance with
terms of existing inter vivos trust
(a)  A  testator  may by will dispose of or appoint all or any part of
such testator's estate to a trustee of a trust, the terms of  which  are
evidenced by a written instrument executed by the testator, the testator
and  some  other  person,  or  some  other  person,  including  a  trust
established for the receipt of  the  proceeds  of  an  annuity  or  pure
endowment  contract, or of a thrift, savings, pension, retirement, death
benefit, stock bonus, or profit-sharing plan or system or  a  funded  or
unfunded  life,  group  life,  industrial  life  or  accident and health
insurance  trust  (although  the  person  establishing  such  trust  has
reserved  any  or  all  rights of ownership of the insurance contracts),
regardless of whether any assets have  been  transferred  to  the  trust
prior  to  the death of the testator; provided that the trust instrument
is identified in the will and is executed by the person establishing the
trust prior to or contemporaneously with the execution of the will  and,
unless  such person is the sole trustee, by at least one trustee thereof
prior to the death of the testator, in the manner required by  the  laws
of  this state for the recording of a conveyance of real property or, in
lieu thereof, in the presence of two witnesses  who  shall  affix  their
signatures to the trust instrument.
(b) The testamentary disposition or appointment is valid, even though:
(1) The trust instrument is amendable or revocable, or both, provided,
however,  that  the  disposition or appointment shall be given effect in
accordance  with  the  terms  of  the  trust  instrument,  including  an
amendment  thereto,  as  they  appear  in  writing  on  the  date of the
testator's  death  and,  where  the  testator  so   directs,   including
amendments  to  the  trust  instrument  after  his  or her death, if the
instrument evidencing such amendment is executed and acknowledged in the
manner provided for in paragraph (b) of 7-1.17.
(2) The right is reserved in such trust instrument (A) to exercise any
power over any property transferred to or held in the trust  or  (B)  to
direct  during  the lifetime of the person establishing the trust or any
other person, the persons and organizations to whom or in  whose  behalf
the income shall be paid or the principal distributed.
(3) The trust instrument or any amendment thereto was not executed and
attested in accordance with the formalities prescribed by 3-2.1.
(c) The property so disposed of or appointed by will becomes a part of
the  trust  to which it is given, and title thereto vests in the trustee
to be administered and disposed of in accordance with the terms  of  the
trust instrument.
(d)  Any  disposition or appointment to the trustee made by a testator
who died prior to the effective date of this  section,  which  would  be
invalid  under  the  applicable  law  of  this  state  pre-existing  the
effective  date  of  this  section,  shall  be  construed  to  create  a
testamentary  trust  under and in accordance with the terms of the trust
instrument which the testator originally  intended  should  embrace  the
property  disposed  of  or appointed, as such terms appear in such trust
instrument at the date of the testator's death.
(e) A revocation or termination of the trust before the death  of  the
testator  shall cause the disposition or appointment to fail, unless the
testator has made an alternative disposition.