Appendix C. A Unitrust Court Case in New York State

• Author: Seymour Goldberg
• Profession: Senior partner in the law firm of Goldberg & Goldberg, P.C., in Woodbury, New York
• Pages: 161-168

APPENDIX C

A UNITRUST COURT CASE

IN NEW YORK STATE

161

In Re Heller

COURT OF APPEALS OF NEW YORK

(6 N.Y.3d 649; 849 N.E.2d 262; 816 N.Y.S.2d 403)

May 4, 2006

SUMMARY OF IN RE HELLER, A NEW YORK COURT OF

APPEALS CASE REGARDING UNITRUST TRUSTS

In re Heller resolves the issues of whether an interested trustee is pro-

hibited from making a trust a unitrust, and whether a trustee may apply

a unitrust election retroactively. In In re Heller, the appellant sought

to have a retroactive unitrust election annulled. The trustees made the

unitrust election in March 2003 and applied it retroactively to Janu-

ary 1, 2002, the date on which unitrust provision [for this trust] became

effective. The appellant argued that the trustees were prohibited from

making the trust a unitrust because of their status as interested trustees.

The appellant also argued that the unitrust election could not be applied

retroactively to the effective date of the unitrust provision [for this trust].

The New York Court of Appeals afrmed the Appellate Division’s rul-

ing that an interested trustee is not prohibited simply by his status as an

interested trustee from making a trust a unitrust and that a trustee may

choose to apply the unitrust election retroactively to the effective date

of the unitrust provision [for this trust].