Estate Planning

IRS Proposal To Overturn Common Asset Valuation Planning Met With Fierce Resistance

Published on: August 22, 2016 | by Ettinger Law Firm

Newly proposed IRS regulations meant to curb common estate and gift tax planning tactics is being met with a firestorm of resistance from financial advisers and estate planners across the country. The proposed regulations (REG-163113-02) place limitations on the use of current valuation discounts that reduce the overall value of assets in family-owned businesses, thus lowering a decedent’s estate and gift tax liability at the time of death. The IRS hope to achieve this end by disregarding restrictions that enabled taxpayers to use these discounts in the past.

Wealth Preservation In Closely Held Businesses

Currently, interests in closely held businesses are not taxed the same as other property interests due to their illiquid nature. Many tax and estate planners put a family’s assets in a closely held business to reduce their estate and gift tax liability. While this is a boon for many families seeking to preserve their wealth, others argue that what started out as a helpful tax break for legitimate family businesses is being abused and exploited by those who have no legitimate use of it.

Back To Basics: Witnesses and Your Will

Published on: August 20, 2016 | by Ettinger Law Firm

It is common knowledge that in order for a New York will to be valid that there must be other people to witness you signing your will as well as putting down their own signatures on your will. Despite this knowledge though improper execution of the will is the most common reason that a will is found to be invalid.

Why Do I Need Witnesses At All?

Witnesses provide an important evidentiary function to the probate process. Witnesses to your signing can provide first-hand accounts of the execution of the will. If a will is ever contested, the witnesses can testify about the procedures that were followed when executing the will, the testamentary capacity of the testator as well as the mental capacity of the testator.

Springing and Durable Powers of Attorney

Published on: August 17, 2016 | by Ettinger Law Firm

The Durable Power of Attorney is a powerful estate planning tool that everyone should have. Properly drafted, a Durable Power of Attorney allows for the right person to be able to manage your affairs when you are physically or mentally unable to do so. However, a Durable Power of Attorney goes into effect once executed and generally grants someone else great power to make decisions for you and to enter into agreements on your behalf. Many people may be uncomfortable granting these powers to someone else while they are still capable of managing their own affairs. Is it possible to delay the effects of a Durable Power of Attorney?

What Is A Power of Attorney?

A Power of Attorney is a legal document that is used to delegate legal authority to another. The person who signs a Power of Attorney is called the Principal. The Power of Attorney gives legal authority to another person called the Agent or Attorney-in-Fact to make financial and legal decisions for the Principal. The authority that the Principal grants the Agent can be as broad or narrow as the Principal wishes. It is entirely dependent on what powers the documents grants the agent.

The Rapidly Disappearing Inheritance

Published on: August 15, 2016 | by Ettinger Law Firm

Beneficiaries Often Treat An Inheritance As A Windfall And Spend It As Such

You spend your entire life working hard, accumulating wealth and you want to pass it onto your children, to provide for them and their families after you have passed. But will they appreciate your life’s earnings or will they blow through it without a second thought? Unfortunately, more likely than not any inheritance that you leave behind will most likely be spent much faster than it was earned, and the statistics are alarming.

“From shirtsleeves to shirtsleeves in three generations” the old saying goes and the research shows that the sentiment is true. One third of people who received an inheritance had negative savings within two years. Even if the wealth does last past the first generation to receive it, 70 percent of inheritances are completely gone by the end of the second generation.

The Power To Establish A New Domicile

Published on: August 13, 2016 | by Ettinger Law Firm

An Often Overlooked Power in Durable Power of Attorney Documents

Your elderly mother lives and intends to continue residing in Florida. You live in New York. She becomes mentally incapacitated and you move her in with you to take good care of her. You are her agent as designated by her Durable Power of Attorney documents and you manage and handle all of her affairs like taking her to the doctor and getting her the attention she needs but you start to run into some problems when you attempt to enroll her in your state’s Medicare program and other entitlement programs. The power of attorney documents do not give you the power to establish her domicile. Even though your mother resides in New York now she still is domiciled in Florida and only qualifies for assistance in Florida.

How do you establish a new domicile and what is a domicile? Traditionally, establishing a new domicile is easy. Wherever you consider home, the place you intend to indefinitely stay, is your domicile. Proof of being domiciled in a certain state typically includes where your primary residence is, where you vote and where your family and children live. This is different from where your residence is. You can have multiple residences but only one domicile.

Estate Plan or Wealth Transfer Plan?

Published on: August 11, 2016 | by Ettinger Law Firm

Nearly 55% of American adults die without a will or estate planning documents. This lack of planning can cause years of stress and heartache for your surviving family members and heirs. If you die without an estate plan in place, your family may be subject to:

Attorney expenses and court costs,
Wasted time and frustration, and

Highs or Lows: Which is Best When Valuing Art and Collectibles?

Published on: August 8, 2016 | by Ettinger Law Firm

Art pieces and collectibles can often be difficult to price. After all, the best and easiest way to price an item is to see what other items like it have sold for. But in these cases, art and collections can be one of a kind and have no comparison. When this happens it can be a headache for a person planning their estate to account for the value of aesthetic beauty and rarity of their art. In this uncertainty though, there is room to maneuver to your advantage when it comes to planning out your estate.

Valuing Your Art

In the United States, if you are attempting to transfer a work of art valued over $50,000, the IRS goes through a process by which it independently evaluates the items. It is the IRS Art Advisory Panel who will have the final say when it comes to evaluating the value of your art, but this does not mean that they will not accept outside opinions. Traditionally art is valued by experts who work in the field, often those with very special niches, sometimes even down the individual artist. When an independent expert values your art, you can submit that assessment to the IRS for consideration.

Determining Incapacity in New York

Published on: August 5, 2016 | by Ettinger Law Firm

Many people believe that estate planning is primarily a tool to minimize taxes by the state and ensure that your assets are passed on to the people you want them to go to. However, an important part of estate planning is ensuring that when you are incapacitated that your wishes will be respected and that you are taken care of when you cannot adequately express your wishes or provide for yourself. But how exactly is that decision made in New York? Who decides when you are incapacitated and when you will need someone else to make your decisions for you?

Your Living Will or Healthcare Directive Can Dictate The Terms of Your Incapacity

The best option for setting forth standards to decide when you are incapacitated is making sure that you are the one dictating the terms of your own incapacity. This can be accomplished through your living will, also known as a healthcare directive. Your living will traditionally acts to provide those making your healthcare decisions with your wishes as to how you would like to be treated in medical situations where you cannot give consent.

Back To Basics: Where To Keep Your Estate Plan

Published on: July 28, 2016 | by Ettinger Law Firm

You have finally done it; you took the necessary and important step to sit down and put together an estate plan with a qualified New York estate planning attorney. You have all of the necessary documents you need to move forward confident into the future about how your assets will be managed and distributed. You have gotten over the biggest hurdle that a majority of Americans never address but now you are faced with a trivial but important matter: where do I keep my estate plan?

Location, Location, Location

Where you store your estate plan matters. As we have written about before, failure to locate the documents in your estate plan at the necessary time could end up with them being treated as if they did not exist at all. Having your wishes written down somewhere that no one knows about does no one any good. Estate planning documents like wills serve an important evidentiary purpose for the courts as they are written proof of your final wishes. No court will probate a will that you cannot find and no hospital or financial institution is going to respect a Power of Attorney if they cannot see and examine the documents themselves.

Gifts to the Dead in New York: Are They Still Effective?

Published on: July 23, 2016 | by Ettinger Law Firm

Most people plan their estate believing that everyone they have left money or bequests to will survive them, such as when a parent specifies that money or property will be left to a child. But sometimes unexpected deaths happen and when it does, many people are left wondering what will happen to the property that they specified to go to the predeceased. It is a tricky situation, but thankfully New York law and proper estate planning precautions can address the problem.

New York “Anti-Lapse” Statutes

Common law followed in the past dictated that gifts to someone who was deceased was null and void. This is due to the fact that a dead person cannot own property. Since they cannot have property, they cannot inherit it. When someone left property to a person who had predeceased them, the bequest would be said to have lapsed. This would have unintended consequences, such as cutting out people who would have inherited the property if the bequest had not failed and others receiving more than the testator intended.