Surrogate Edward McCarty III

A petition was filed by the trustees of a trust created for the benefit of daughter Carpenter by the Last Will and Testament of Owen who died in 1974. The will provides for the creation of a trust for the benefit of her spouse and daughter. The trustees of that trust were directed to pay all net income to Carpenter during her lifetime and then, upon her death, the trustees are to pay all of the net income in quarterly installments to Carpenter’s issue until her youngest surviving child reaches 30 years of age, at which time the trust corpus will be distributed to her then living issue, per stirpes. If no issue is then living, the trust corpus will be paid to the trustees of a trust created under decedent’s will, created for the benefit of Carpenter’s son and his issue rather than for the benefit of Carpenter and her issue. Petitioners sought a decree directing that the optional unitrust provision under EPTL 11-2.4, but not the provisions of EPTL 11-A, apply retroactively to the trust. The court granted the relief and directed that retroactive to January 1, 2001, EPTL 11-2.4 will apply, and that EPTL 11-A will not apply, to the trust, finding that the interests of Carpenter’s grandchildren and the grandchildren of her son are genuinely represented in this proceeding.