Estate Planning

Gifts & New York Estate Planning

Published on: April 17, 2012 | by Ettinger Law Firm

Passing on wealth to subsequent generations is a crucial part of New York elder law estate planning. At times, giving assets to others as a gift may be an important part of that strategy. While giving a gift may seem like a straight-forward step, in the overall estate planning process it comes with various complications. Tax consequences are at the heart of gifting, and so it is vital to understand how gifts fit into an overall asset transfer plan.

Giving gifts to others is one helpful way to lower a taxable estate. After all, if assets are given away while one is still alive then the total value of one’s estate at death will be lower leading to a smaller tax burden. If an individual planned on giving the asset away at death anyway, why not give it away while alive to save on taxes.

However, it is not necessarily that easy. For one thing, there are limits to what can be given as a gift tax-free each year. Under current law, transfers up to $13,000 per year per person are tax-free. Married couples can pool their exemption and give $26,000 to a person each year without paying taxes. Over a lifetime, the gift tax exemption is connected to the estate tax exemption. Right now the lifetime exemption level is $5.12 million. In other words, currently an individual can give away $5.12 million total without paying taxes while alive and the total amount given away will be applied to the estate tax exemption level at death for estate tax purposes.

Mike Wallace’s Passing Reminder of Planning Needs for Dementia

Published on: April 13, 2012 | by Ettinger Law Firm

Dementia refers to the loss of cognitive ability to a degree beyond what is expected from normal aging. It is not a specific disease but simply a phrase to collectively refer to a set of symptoms. In later stages of the condition, the affected may have severe impairments, becoming disoriented in time and place. They may also be unable to understand who they are or who is around them. Alzheimer’s disease is perhaps the most common form of dementia, but there are many others including semantic dementia vascular dementia, and dementia with Lewy bodies.

Dementia is far more common among the geriatric population. For example, according to the Alzheimer’s Association, one out of every eight Baby Boomers will get Alzheimer’s disease after they turn 65. However, “early onset dementia” can also occur, affecting those under 65 years old. The risks posed by dementia and the uncertainty with which it strikes makes it common sense for elder law estate planning efforts to be put into place ahead of time to guard against the risks. As a Forbes article notes, the recent passing of veteran newsman Mike Wallace is a reminder of this.

Wallace’s son, news anchor Chris Wallace admitted that his father suffered from dementia in his later years. “Physically, he’s okay. Mentally, he’s not. He still recognizes me and knows who I am, but he’s uneven,” the son explained. Our New York elder law estate planning lawyers know that many local residents have families in the same situation. Fortunately for the Wallace family, planning had been conducted to account for this possibility.

The Complex Issues of Disinheritance

Published on: April 10, 2012 | by Ettinger Law Firm

Delineating what family members, friends, and charities will inherit after one’s death is a large part of New York estate planning. However, intrinsic in the process is also distinguishing who will not receive any part of one’s estate. Disinheritance is therefore just as much a part of the process as anything else. There are many high-profile stories of wealthy families who have children intentionally ignored in the inheritance process.

Perhaps the most well-known example involves “Mommie Dearest,” Joan Crawford, who disinherited her children “for reasons known to them.”

However, the issues involved affect all families, not just the rich. An MSNBC story last month touched on some of the complex motivations woven into disinheritance.

Farm Families Reminded of Need for Estate Planning to Smooth Transition to Next Generation

Published on: April 6, 2012 | by Ettinger Law Firm

Over the past few months there has been a surge in awareness efforts by agricultural publications around the need for farm families to take estate planning seriously. For example, late last week Agri-View published an article re-emphasizing the need for families to get serious about their succession planning if they would like to preserve their farm for generations to come. Our New York estate planning lawyer appreciates that the principles outlined in the article can be applied to contexts outside of farm families and are apt for all families with small businesses which may wither without proper preparation for transitioning from one generation to the next.

The article reminds readers that a succession plan is not the same thing as an estate plan. The estate plan is best viewed as one part of the process to prepare for business transitioning. The overall succession plan in not a one-time event–it is a gradual process that is completed with consultation with a variety of professionals, including estate planning lawyers. The estate planning component of the process will strategize ways to transfer assets to ensure tax savings and a smooth transition of property and responsibilities to younger generations.

Getting legal documents in place is just the beginning. In addition, the succession planning process will also involve the family elders answering questions about what they’d like their future to hold. For example, the older generation of the farm family should think seriously about what they’d like to do when their time isn’t filled with farming. The answer to this and similar question will dictate how much money will be needed to meet those goals in retirement. From there, concrete strategies can be crafted which provide the older generation with needed resources while preserving the younger generation’s ability to inherit and continue family business endeavors in the future.

New York Estate Planning Feud Ends for Astor Family

Published on: April 4, 2012 | by Ettinger Law Firm

The New York Times reported last week on the seeming end to one of the most high-profile New York estate planning feuds in decades. For almost five years Brooke Astor’s only son was engaged in a prolonged battle to settle his inheritance and control over other portions of the family estate. The extended legal saga was yet another reminder of the perils of trying to transfer significant assets in a straight-forward, conflict-free manner.

Mrs. Astor had a fortune estimated at roughly $100 million at the time of her death. Reports indicate that Mrs. Astor had dementia in her later years, dying in 2007 at the age of 107. Three years ago her son, Anthony D. Marshall, was convicted of stealing from her. Another man who handled Mrs. Astor’s affairs was also convicted of similar crimes. Both men were sentenced to one to three years in prison for their conduct, but they remain free pending appeal. The criminal proceedings are separate legal affairs from the probate process which resolves Mrs. Astor’s estate. However, the conduct of Mr. Marshall as revealed in the criminal matter likely affected the ultimate resolution of the New York estate plan dispute.

Mrs. Astor signed a will in 2002 that left a sizeable amount of money to charity. However, the will was amended in 2003 and then twice-again in 2004. The changes essentially gave Mr. Marshall more money as inheritance and control over her estate. The legal fight centered on whether Mrs. Astor was tricked into signing those subsequent revisions and whether she was competent at the time.

Mental Capacity Issues in Estate Planning Fights

Published on: April 2, 2012 | by Ettinger Law Firm

“Lawsuit-proofing” an estate is a common goal in estate planning. Of course, this refers to use of strategies and tools to ensure the inheritance process does not lead to legal fights down the road. A benefit of having an experienced New York estate planning lawyer involved in the preparations is that the legal professional will be able to anticipate possible challenges and incorporate those risks into the work that is performed. In this way, proper planning requires strategizing and unique legal maneuvering, not simply filling out lines on legal documents.

For example, one of the most common ways that an inheritance plan in attacked is by questioning the capacity of the settlor. If one is unhappy with the way that a senior decided to manage their estate or dispose of their trust assets at death, challenging that senior’s mental capacity is a common. A Lake County News article last week discussed this possibility by highlighting real appellate cases where capacity was at issue.

In one case, an elderly settlor decided to leave most assets to his long-term romantic partner instead of his children. The senior, who was known to be forgetful, changed his trust documents to leave the majority of the assets to the partner. He also named her as beneficiary for his retirement accounts. The man’s children, with whom he had strained relationship, did not find out about these changes until the man’s death. They initiated a legal suit seeking to attack the changes to the trust and retirement plan. The argument that they made in the legal challenge was that their father did not have the requisite capacity to control his affairs at the time that he made changes to his trust documents. A key issue in that case is obvious: what level of understanding is required to make the senior’s actions legally sufficient?

Estate Planning Challenges For the “Asset Rich and Cash Poor”

Published on: March 29, 2012 | by Ettinger Law Firm

This week the USA Today shared a helpful story that analyzed some estate planning difficulties faced by certain families, often farmers, who have many physical assets but few liquid cash stockpiles. One obvious challenge for these families is dealing with the uncertainty of the estate tax. Estate tax considerations are of clear concern, because the family may be unable to pay the tax burden that comes with inheriting the assets without being forced to actually sell those very assets.

Currently, there is a $5 million exemption level for the estate tax. However, without federal action, that exemption level will drop to $1 million by the end of the year. All inherited assets that exceed that level will then be taxed at various rates up to 55%, with a 5% surcharge on estates over $10 million.

Our New York estate planning attorneys appreciate that these estate tax issues are of paramount importance to certain community members, like farm families or those with family-owned businesses. For example, it does not take much for farms of various sizes to cross over that $1 million threshold when taking into account land, buildings, and equipment. In addition, for many farmers, land values have risen steadily with advances in natural resource technology because of the increased profitability of available minerals. Many resources can now be extracted from land that was previously unattractive to the mineral industry. This increases the value of land but makes estate tax considerations a real concern for more families.

Estate Planning Lessons from Etta James

Published on: March 23, 2012 | by Ettinger Law Firm

Classic female crooner Etta James left the world an indelible collection of timeless musical standards. Beyond her music, estate planning attorneys have explained that since her passing earlier this year, Ms. James has also left the world a wealth of estate planning lessons regarding both the good and bad ways to conduct these financial, legal, and medical preparations. In fact, The Discovery Channel is set to shoot an episode of a series it runs called “The Will” on the lessons to be learned from the Etta James estate case.

Like in so many families, feuding began in Ms. James’ case even before she passed away. Ms. James son, Donto James, and her husband, Artis Mills, began fighting in court over control of the ailing singer’s care last year. Spouses and step-children often engage in these disagreements.

Previous planning efforts by Ms. James named her husband as the one in charge of her personal care and health care. However, interestingly, end of life care was supposed to be made jointly by her husband and two sons. This is a unique approach that, while good-intentioned, is rife with potential complications. As our New York estate planning attorneys would have explained, without a “tie-breaking” mechanism to settle disagreements about such life-ending care, these sorts of split decisions leave the door to in-fighting wide open. Of course it is always hoped that these sorts of situations can be resolved amicably. But the entire purpose of planning for these affairs is to anticipate potential issues and plan for them to avoid fighting, stalling, and legal complications. Clear planning should provide fair, logical, and streamlined decision-making.

Increase in Blended Families Cited For Causing “Uglier” Estate Fights

Published on: March 19, 2012 | by Ettinger Law Firm

The world is a different place today than it was in 1950. Several decades ago the vast majority of families were of similar make-up: father, mother, kids, dog, house, and car. Inheritance planning in those situations often followed very predictable patterns. A spouse received the assets after a death, and the children split the remaining assets when the second parent moved on. However, our New York estate planning lawyers know that there is much more complexity these days.

That is true for several reasons. On one hand, the law has changed, with different tax situations, legal tools, long-term care concerns and other realities forcing estate plans to take more into account. In addition, families are much more diverse these days than in the past.

Blended families are quite common, necessitating families take special care to account for their inheritance wishes. “Default” statutory inheritance rules may have been a bit less off-putting several decades ago. However, considering the unique make-up of most families these days, it is incumbent upon local residents not to risk their estate being split via default intestacy rules. As a new USA Today story explains, it is no longer a luxury to have the help of an estate planning lawyer–it is a necessity.

DOMA Developments May Have Implications for Married Same-Sex New York Couples

Published on: March 9, 2012 | by Ettinger Law Firm

The Defense of Marriage Act (DOMA) is a federal law passed in 1996 that defines marriage for federal purposes as only between one man and one woman. As our New York estate planning lawyers have often discussed, this means that same-sex couples married in our state are still not considered married for federal purposes. This has serious implications for tax preparation, estate planning, and a host of other concerns facing these residents. DOMA prevents married individuals from filing joint federal tax returns, receiving Social Security benefits, or having tax-free inheritances.

Many advocates on all sides of the aisle are working to overturn the law. Bills have been advanced in Congress which would repeal DOMA. However, with the current partisan split it appears unlikely that these legislative measures are likely to pass anytime soon. But that does not mean DOMA is here to stay. Most of the recent action on the issue has taken place in the courts. Several federal lawsuits have been filed which challenge the constitutionality of the legislation. President Obama has refused to defend the measure, and so the law is currently being defended under the auspices of the Republican leadership in the U.S. of Representatives.

Last month a U.S. District Court judge in one of those cases found that DOMA (or at least section 3 of the law) violates the equal protection clause of the U.S. Constitution. The case is being appealed to the federal appellate court. This particular ruling relates only to one provision of the law as applied to one couple. However, it is a clear indicator that the entirety of DOMA may one day–perhaps soon–be found unconstitutional.