NY State Senate Bill 2025-S7498

Current Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 21, 2025	referred to judiciary

2025-S7498 (ACTIVE) - Details

See Assembly Version of this Bill:: A3381
Current Committee:: Senate Judiciary
Law Section:: Surrogate's Court Procedure Act
Laws Affected:: Add §1510, SCPA
Versions Introduced in 2023-2024 Legislative Session:: A7750

2025-S7498 (ACTIVE) - Summary

Provides a mechanism for establishing the existence of a writing creating or amending a lifetime trust which was either lost or destroyed.

2025-S7498 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S7498

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the surrogate's court procedure act, in relation to
proof of lost or destroyed trusts

 
PURPOSE OR GENERAL IDEA OF BILL:

Provides statutory provisions for proving and establishing lost or
destroyed lifetime trusts

 
SUMMARY OF PROVISIONS:

Section one of the bill amends the surrogate's court procedure act by
adding a new section 1510 to that provides for statutory provisions for
proving and establishing lost or destroyed lifetime trusts

Section two provides for the effective date

JUSTIFICATION:

The New York legislature has not directly addressed the issue of lost or
destroyed lifetime trusts. However, the enactment of SCPA § 1407 clari-
fied this issue with regard to testamentary trusts, giving practitioners
clear guidance as to how to probate a will that has been lost or
destroyed, including one that creates a testamentary trust. Once the
proponent has established each of the elements of SCPA § 1407, a lost or
destroyed will may be admitted to probate, thus allowing for the
creation and administration of a testamentary trust created under a lost
propounded will. The absence of a parallel statute for lost or destroyed
lifetime trusts creates a pointless dichotomy where testamentary trusts
established in lost wills have a set procedure to be created while none
exists for lost lifetime trusts.

Despite the absence of a statute, there is some New York case law on
point. Such case law has consistently held that the absence of the
executed original of an agreement pursuant to which a lifetime trust has
been established does not prevent a finding that a valid trust exists
This line of cases continues to be followed and applied by the Surro-
gate's Court In all cases, the party seeking to prove a trust must prove
the existence of designated trustee(s), the designated beneficiary, a
clearly identifiable res, and delivery of the res by the grantor to the
trustee with the intent of vesting legal title in the trustee.  Where
the presence of all four of the elements has been demonstrated, New York
courts have found that a valid lifetime trust existed, despite a lack of
the original or copy of the trust document.

However, clear statutory guidance is needed. It is essential that assets
held in a lifetime trust continue to be held and administered for the
trust beneficiaries if the existence of the trust can be properly estab-
lished. Simply because the physical document evidencing the trust has
been lost or destroyed does not and should not extinguish the assets of
that trust and the rights and interests therein. When a potential
grantor/testator wishes to establish a trust, he or she should be given
the same measure of comfort that his or her wishes will be honored,
whether the trust is created under a Will or under a separate trust
instrument.
 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
Immediately

2025-S7498 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7498
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                              April 21, 2025
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN  ACT  to  amend  the  surrogate's court procedure act, in relation to
   proof of lost or destroyed trusts
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The surrogate's court procedure act is amended by adding a
 new section 1510 to read as follows:
 § 1510. PROOF OF LOST OR DESTROYED TRUST
   1. A LOST OR DESTROYED TRUST MAY BE PROVED IN A PROCEEDING ONLY IF:
   (A) EXECUTION OF THE TRUST AND ANY AMENDMENTS THERETO  ARE  PROVED  IN
 THE  MANNER  REQUIRED  BY  NEW YORK LAW, OR BY THE APPLICABLE LAW OF THE
 SITUS AT THE TIME OF EXECUTION;
   (B) THE TRUST HAS NOT BEEN REVOKED; AND
   (C) ALL OF THE PROVISIONS OF THE TRUST ARE ESTABLISHED BY  A  COPY  OR
 DRAFT  OF THE TRUST PROVED TO BE TRUE AND COMPLETE, OR IN THE ABSENCE OF
 COPY OR DRAFT OF THE TRUST, BY ESTABLISHING THE FOLLOWING:
   (I) THE DESIGNATED TRUSTEE OF THE TRUST;
   (II) THE DESIGNATED BENEFICIARY OR BENEFICIARIES OF THE TRUST;
   (III) THE DISPOSITIVE PROVISIONS OF THE TRUST; AND
   (IV) THAT IDENTIFIABLE ASSETS WERE TRANSFERRED TO AND ARE HELD IN  THE
 TRUST.
   2.  THERE  SHALL  BE A PRESUMPTION OF DUE EXECUTION WHERE IT IS ESTAB-
 LISHED THAT ASSETS WERE TRANSFERRED TO THE TRUST.
   3. THERE SHALL BE A PRESUMPTION THAT THE TRUST WAS NOT REVOKED.
   4. IN ANY PROCEEDING TO PROVE A LOST OR DESTROYED TRUST:
   (A) THE PERSON OR PERSONS SEEKING TO CHALLENGE  THE  VALIDITY  OF  THE
 TRUST  SHALL  HAVE  THE  BURDEN OF PROOF TO ESTABLISH THAT THE TRUST HAS
 BEEN REVOKED; AND
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07194-01-5
 S. 7498                             2

   (B) THE PERSON OR PERSONS SEEKING TO PROVE THE VALIDITY OF  THE  TRUST
 SHALL  HAVE  THE  BURDEN OF PROOF ON THE REQUIREMENTS CONTAINED IN PARA-
 GRAPHS (A) AND (C) OF SUBDIVISION ONE OF THIS SECTION.
   5. PROCESS MUST ISSUE TO THE FOLLOWING PERSONS, IF NOT PETITIONERS, IN
 A  PROCEEDING  TO  ESTABLISH  OR  CHALLENGE  THE  VALIDITY  OF A LOST OR
 DESTROYED TRUST:
   (A) ALL NOMINATED TRUSTEES OF THE TRUST;
   (B) ALL PERSONS DESIGNATED AS BENEFICIARIES OF THE TRUST;
   (C) ALL DISTRIBUTEES OF THE SETTLOR, UNLESS THE COURT  DISPENSES  WITH
 SUCH PROCESS;
   (D)  THE  FIDUCIARY  OF THE SETTLOR'S ESTATE AS DEFINED IN SUBDIVISION
 TWENTY-ONE OF SECTION ONE HUNDRED THREE OF THIS CHAPTER, IF ANY;
   (E) THE BENEFICIARIES UNDER  THE  WILL  OF  THE  SETTLOR  ADMITTED  TO
 PROBATE OR OFFERED FOR PROBATE IN ANY COURT OF COMPETENT JURISDICTION;
   (F)  THE  ATTORNEY  GENERAL  IF  THE TRUST IS A CHARITABLE TRUST OR IF
 THERE ARE PERSONS UNKNOWN; AND
   (G) ALL SUCH OTHER PERSONS AS THE COURT IN ITS DISCRETION  MAY  DETER-
 MINE.
   § 2. This act shall take effect immediately.

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Senate Bill S7498

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Current Bill Status - In Senate Committee Judiciary Committee

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2025-S7498 (ACTIVE) - Details

2025-S7498 (ACTIVE) - Summary

2025-S7498 (ACTIVE) - Sponsor Memo

2025-S7498 (ACTIVE) - Bill Text download pdf

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Sponsored By

Andrew Gounardes

Current Bill Status - In Senate Committee Judiciary Committee

Actions

2025-S7498 (ACTIVE) - Details

2025-S7498 (ACTIVE) - Summary

2025-S7498 (ACTIVE) - Sponsor Memo

2025-S7498 (ACTIVE) - Bill Text download pdf

Comments