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The Santa Clause in Estate Planning — 2025

Published on: January 11, 2025 | by Ettinger Law Firm

The current New York estate tax exemption stands at $7.16 million while the Federal exemption is at $13.99 million. While the Federal government only taxes the amount over the Federal exemption, New York takes a different approach. Once you go more than 5% over the exemption amount in New York, they tax the whole estate! You’re “over the cliff”.

New York’s “fiscal cliff”, as it has been termed, leads to the absurd result that you would end up with less after taxes on a seven and a half million dollar estate than on a seven million dollar estate.

The “Santa Clause” is intended to avoid the tax “fiscal cliff” by providing that any amounts that would cause the fiscal cliff to be triggered are to be given to a qualified charity. This lowers the amount of the estate subject to estate tax to no more than the exemption amount.

Taking Back Control with a Living Trust

Published on: August 23, 2024 | by Ettinger Law Firm

In the fall of 1990, some thirty-four years ago, your writer first heard of the proposition that if you set up a living trust your estate doesn’t have to go to court to settle – the so-called probate court proceeding for wills. Having spent the previous eleven years as a litigation attorney, and having faced numerous problems probating wills, this sounded too good to be true.

At the time, some of the best estate planning lawyers were in Florida. Perhaps you can guess why. In any event, off I went to Florida to train as an estate planning lawyer and, upon returning, closed the litigation practice and founded Ettinger Law Firm in April 1991, to keep people just like you, dear reader, out of probate court.

The reason I was so excited about the living trust, and continue to be so to this day, is the concept of taking back control from the courts and government and giving it back to you and your family. After all, who doesn’t want control over their affairs?

Second Marriage Planning

Published on: July 12, 2024 | by Ettinger Law Firm

In second marriage planning, a co-trustee is sometimes recommended on the death of the first spouse. While both spouses are living and competent they run their trust or trusts together. But when one spouse dies, what prevents the other spouse from diverting all of the assets to their own children? Nothing at all, if they alone are in charge. While most people are honorable, and many are certain their spouse would never do such a thing, strange things often happen later in life. A spouse may become forgetful, delusional or senile or may be influenced by other parties. Not only that, but the children of the deceased spouse tend to feel very insecure when they find out their stepparent is in charge of all of the couple’s assets.

If you choose one of the deceased spouse’s children to act as co-trustee with the surviving spouse there is a conflict that exists whereby the stepchild may be reluctant to spend assets for the surviving spouse, because whatever is spent on that spouse comes out of the child’s inheritance. Then what if stepparent gets remarried? How will the stepchild trustee react to that event? What if it turns out the stepchild liked the stepparent when his parent was living, but not so much afterwards?

Here is where the lawyer as co-trustee may provide an ideal solution. When one parent dies, the lawyer steps in as co-trustee with the surviving spouse. The lawyer helps the stepparent to invest for their own benefit as well as making sure the principal grows to offset inflation, for the benefit of the deceased spouse’s heirs. The stepparent in this case takes care of all their business privately with their lawyer. The trusts cannot be raided. These protections may also be extended for IRA and 401(k) money passing to the spouse through the use of the “IRA Contract”. Surviving spouse agrees ahead of time that they will make an irrevocable designation of the deceased spouse’s children as beneficiaries when the IRA is left to the surviving spouse, and further agrees that any withdrawals in excess of the required minimum distribution (RMD) may only be made on consent of the lawyer.

The Attitude of Gratitude

Published on: November 21, 2023 | by Ettinger Law Firm

Gratitude has to do with appreciation. Appreciation means to add value to. Things that appreciate tend to grow, just as being grateful for something or someone raises its or their value in our estimation. Even though, at any given time, countless more things are going right than going wrong in most of our lives, too many of us focus more on what’s going wrong and take for granted what’s going right — our health, our loved ones, our resources.

“Gratitude interventions” is the term used for cultivating the attitude of gratitude in our lives. The father of positive psychology, Martin E. P. Seligman, suggests an exercise called “Three Good Things” whereby at the end of the day you write down three good things that happened to you and why. The “why” is very important.

An app called “Gratitude Plus” allows you to (1) share gratitude with your favorite people (2) easily reflect on the good in your life (3) create groups with friends and family (4) hear from people around the world (5) track progress and understand trends (6) use streaks to build a habit (7) get creative with a variety of prompts, and (8) stay positive with daily affirmations. As to the latter, your writer has found reading daily affirmations to be an invaluable resource for maintaining a positive mindset. The great motivational speaker Zig Ziglar notably said that “People say that motivation doesn’t last. Neither does bathing – that’s why we recommend it daily”. Daily positive affirmations may be found by googling “daily affirmations” and choosing one of the free services that appeals to you.

Keeping The Lights On

Published on: November 17, 2022 | by Ettinger Law Firm

Adapted from author Doug Armey, the following are keys to keeping your brain “lit” as you age.

Flow. A sedentary life causes brain deterioration. Blood flow to the brain keeps oxygen in your brain cells which gives them life. Keep moving, walking and get some exercise.
Energize. Junk food clogs your arteries and lowers energy, causing a sedentary lifestyle. Healthy food gives energy to your body and brain. Refuel and brighten the lights.

Avoiding Guardianship in New York

Published on: October 13, 2022 | by Ettinger Law Firm

For the ever-increasing number of those who become legally incapacitated later in life (i.e. unable to handle their legal and financial affairs) having a legal guardian appointed looms as a distinct possibility.

A guardianship proceeding may be commenced by a hospital, nursing home, assisted living residence, family member or a professional involved in the affairs of the “alleged incapacitated person” or “AIP”. These proceedings arise for various reasons such as the facility looking to secure payment or a family member or professional finding that the AIP is either not handling their affairs well or is being taken advantage of financially.

Once the proceeding is commenced a vast bureaucratic process begins to unfold. Notice of the proceeding and of the date and location of any hearings are sent to all interested parties, including all immediate family members.

Critical Issues to Consider When Estate Planning

Published on: May 24, 2022 | by Ettinger Law Firm

Estate planning varies substantially between individuals and is influenced greatly by a person’s goals. Each individual also has a unique situation as well as a background to consider. Two individuals with similar kinds of assets are worried about protecting property from future elderly care centers that might sound like they have similar estate plans. If one person is a disabled veteran, while the other has no military service though, estate planning between the two can be substantially different. When it comes to estate planning, countless important estate planning issues should be considered.

# 1 – Decide On Your Estate Planning Goals

Each person should assess his or her goals when deciding on what he or she would like to achieve with an estate plan. If the main goal is to make sure that a spouse inherits assets and can make choices after the individual becomes incapacitated, a plan involving a last will and testament and powers of attorney might be all that is required. If the primary objective of an estate plan is to guard against future liabilities, trust planning might be critical.

Economy’s Condition Thrives Off Obamacare

Published on: May 5, 2022 | by Ettinger Law Firm

The states currently resisting Medicare are currently falling behind in job-market strength as well as the growth of income. Meanwhile, even the states that later signed up for Obamacare are witnessing more prosperous economies.

Obamacare created a substantial debate in the country before it was passed into law. One question raised by critics of Obama care is the measure’s impact on the economy. Supporters argued that Obama would help companies flourish because they would realize many of the costs associated with healthcare, while critics warned that Obamacare would result in tax increases.

Data after Obama’s decade-long existence now reveals that states that have fully embraced the measure are enjoying stronger economies than states that assumed these measures.

New Community-Based Palliative Care Model Proposed

Published on: November 22, 2021 | by Ettinger Law Firm

A possible palliative care demonstration care model recently got substantial support from the House Ways and Mean Committee. Ten members of the committee wrote a letter to the Centers for Medicare and Medicaid Service Administrator requesting either a new community-based palliative care demonstration model or building on the Medicare Care Choices Model, which permits beneficiaries who are eligible for both Medicare and Medicaid to receive supportive care services that are often utilized hospice in the midst of receiving curative services.

The National Hospice and Palliative Care Organization President who had been fighting to secure a demonstration model for years expressed encouragement from the committee’s support.

The President also commented that through continued advocacy, the organization is starting to see Members of Congress coalesce around the need for a community-based palliative care model to make care access fairer, lower prices, deliver better services, and improve life quality for patients.

Estate Planning Advice for Single Parents

Published on: November 19, 2021 | by Ettinger Law Firm

Our lawyers recently heard of a divorced individual who passed away and left two children below the age of 18 years. When the person passed away, the individual had no will in place. As a result, it was uncertain who the deceased individual wanted to appoint as a personal representative of the estate.

Remember, a person passes away without appointing a personal representative, New York law dictates who can apply to be appointed as a personal representative. Because the deceased individuals were below the age of 18, they could not apply to the court for appointment as personal representatives.

The surviving family filed the appropriate paperwork with probate court hoping for the nomination of a conservator for each child. After the court-appointed conservators, the conservators selected a personal representative for the estate. The person chosen by the conservators then filed paperwork requesting the appointment of a personal representative. This person then gathered all of the deceased parent’s assets, paid the deceased person’s creditor claims, and then divided and transferred the remaining assets to each minor child’s conservator. These conservators must hold assets for the children until the children reach eighteen years of age. This case took a long time to resolve and involved substantial costs. Besides court fees, accounts, conservators, and lawyers also had to be paid.