DECISION Petitioner Andrew M. Crisses, as the independent co-trustee of the Non-GST Marital Trust created under paragraph 1 of Subdivision A of Article VI of the declaration of trust creating the Raymond R. Herrmann, Jr. Revocable Trust dated February 19, 2019, as amended (“Marital Trust”), brings this proceeding for conversion of the Marital Trust into a unitrust pursuant to EPTL 11-2.4(e)(2)(B). The decedent’s wife, Mariana C. Herrmann, is the lifetime income beneficiary of the Marital Trust (“Mariana”), while decedent’s son, Christian Raymond Kai-Nielsen, and Weill Cornell Medical College and the Metropolitan Museum of Art, are the remainder beneficiaries. The Marital Trust also provides a discretionary power to the trustees to invade the principal of the trust, to the extent of expending the entire principal, for the benefit of Mariana. In determining whether the unitrust provisions of EPTL 11-2.4 should apply, the statute sets forth a nonexclusive list of relevant factors to be considered: (1) the nature, purpose and expected duration of the trust; (2) the decedent’s intent in creating the trust; (3) the identity and circumstances of the beneficiaries; (4) the needs for liquidity and preservation and appreciation of capital; and (5) the nature of the assets held in the trust (EPTL 11-2.4[e][5][A]; Matter of Ives, 192 Mis2d 479 [Sur Ct, Broome County 2002]). Currently, half of the Marital Trust’s substantial assets consists of shares held in the decedent’s company which will be repurchased within the next three years. As a result, the liquid, investable assets in the Marital Trust are anticipated to substantially increase. It is clear from the terms of the Marital Trust that the decedent intended to provide for Mariana during her lifetime. Converting the Marital Trust into a unitrust would facilitate the independent co-trustee’s ability to invest these assets while providing Mariana with adequate resources to enjoy her standard of living. It would also alleviate the need the invest the trust assets for income production, thereby protecting the interests of the remainder beneficiaries. Additionally, given the size of the trust, it does not appear that the trust assets are in any danger of depletion. In light of the above, as well as the statutory presumption favoring the application of the unitrust provisions (see EPTL 11-2.4[e][5][B]), the petition is granted and the optional unitrust provisions of EPLT 11-2.4 shall apply to the trust. Decree signed. Dated: September 24th, 2024
