Appendix I. In Re Heller

• Author: Seymour Goldberg
• Profession: Senior partner in the law firm of Goldberg & Goldberg, PC in Woodbury, New York
• Pages: 111-118

APPENDIX I

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

111

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 January 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 ruling 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 uni-

trust provision [for this trust].

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