MHL ARTICLE 81 - New York State Unified Court System

trust prior to its funding (SCPA 405(1)(b)
Matter of Mathew Ryan F., NYLJ, 2/19/04, p. 20 (Sup. Ct., NY Cty).(Berler, J).
Where SNT is created by Art. 81 guardian, legal fees paid by the trustees are inherently reviewable
by the Art 81 Court, even if the trustee does not object to paying such fees. SNT’s cannot be used
to circumvent the protections of guardianship. While most trusts leave legal fees to the discretion
of the Trustee, SNT’s are unique. In this case, the Court reduces the fees because many were
charged to assist the trustee to learn about matters that did not require the assistance of a lawyer. A
simple call to DSS by the trustee would have yielded the same results.
i. Court supervision of trusts
Matter of Petition to Create First Party Supplemental Needs Trust Pursuant to EPTL §7-1.12
for the Benefit of David Berke, NYLJ, 11/29/06, p. 25, col. 6 (Surr.Ct., NY Cty) (Surr. Glen)
First party SNT for mentally competent, physically disabled adult under the age of 65 was approved.
Court directed that the accountings be submitted to the Department of Social Services and also to
Mr. Berke, the trust beneficiary, but stated that it was unnecessary to submit the accountings to the
court.
Matter of Paul Harris, NYLJ June 10, 2005, p. 34 (Surr Ct., Kings Cty) (Surrogate Tomei)
Court requires SNT to provide for annual accounting and bond and continuing court supervision NY
even though TTE plans to move out of state until another court in the next state assumes jurisdiction
over the trust.
Matter of Kevin Pete Kaidirimaoglou, NYLJ, 11/5/04, p.28 (Surr Czygier) (Surr Ct. Suff. Cty.)
Court (1) dispenses with requirement that trustee file annual accounting, reasoning that (a) trustee
must notify DSS if he will make large expenditure depleting the estate and (b) trustee must judicially
settle account prior to his discharge. Court states: “The undersigned has opined on a number of
occasions that a supplemental needs trust trustee should not be treated differently than a testamentary
or inter vivos trustee. There are safeguards in place to protect the lifetime beneficiary and DSS, for
example, the trustee must give notice to the social service district in advance of certain transactions
[see 18 NYCRR 360-4.5 and Article 5.2 of the proposed trust] and is required to post a bond.
Furthermore, this court has the authority to compel a trustee to account at any time and an interested
party may petition for same. It is therefore unnecessary to mandate an annual accounting and burden
the trust with the inherent costs. Accordingly, the request of DSS to include a provision directing
the filing of an annual accounting is denied.” BUT holds that SNT may not provide for automatic
succession of true successor trustee. successor must be approved by court at time of successions.
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