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Inheriting Partial Ownership

Published on: November 14, 2016 | by Ettinger Law Firm

Inheriting physical real estate, such as a home or vacation cabin, can be tricky to navigate. You have to consider your desire for the property, potential expenses involved in ownership, and the process of transitioning ownership of the property to your name. These situations become more complicated when you add joint ownerships and partial interests.

People have been known to leave homes or vacation properties to their children to have in equal shares. This is common in cases where the property has been in the family for generations. Property left to multiple people is considered equally owned as “tenants-in-common” or “co-tenants”. All co-tenants have the right to use all of the property and share in any profits or liabilities from it.

“I don’t want a cabin in the woods if my brother’s there too.”

Physician Assisted Suicide and The Election

Published on: November 9, 2016 | by Ettinger Law Firm

Physician Assisted Suicide and The Election

Physician assisted suicide has continued to be a widely controversial, but popular topic across the country over the past decade. With the presidential election coming to a close very soon, the future of physician assisted suicide, or dying with dignity, may become a more widely spread practice, legal medical practice available to those terminally ill patients. Thus far, The Death with Dignity Act, or a similar version, has been passed in Oregon, Washington, Vermont, California and Montana.

California recently passed the California End of Life Option Act in June of 2016, after years of deliberation, voting and criticism, Governor Jerry Brown ultimately signed the bill into effect in the fall of 2015. Many families are relieved that this may become an option for a terminally ill loved one. What is different about death under this Act, is that it is no longer viewed as suicide, and will legally allow loved ones to retain what their terminally ill family member has designated for them after their passing.

Back to Basics: Estate Planning Vocabulary

Published on: November 7, 2016 | by Ettinger Law Firm

Estate planning can be a tricky matter. If it wasn’t difficult enough to make decisions regarding the end of your life and your estate beyond your lifetime, you are also expected to learn and understand a slew of new words and phrases. What are the main phrases you must know to be able to plan and understand your estate? Here’s our breakdown:

Beneficiary: A beneficiary is someone who receives an inheritance through a will. Beneficiaries can be designated on certain financial assets, such as retirement accounts and life insurance policies. These designated beneficiaries will supercede the will.

Bequest: A bequest is a provision in a will that leaves property or assets to someone specific.

What is a Discretionary Trust and When Should I Use it?

Published on: September 21, 2016 | by Ettinger Law Firm

What Is It?

A Discretionary Trust is another type of trust that is commonly used by a grantor seeking to distribute assets to a class of people or their family. Unlike a mandatory trust which requires distributions of income and principal be made according to a set schedule that is executed in the trust document, discretionary trusts allow the trustee to make determinations about when and how much beneficiaries are to receive in capital and income from the trust. Beneficiaries of discretionary trusts do not have entitlement to a specific interest in the trust, they have a right to be considered for the appointment of property or income from the trust

When and Why To Use a Discretionary Trust

Ademption: A Stumbling Block To Your Estate Plan

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

Your estate plan exists to make sure that your wishes are known and fulfilled. In particular, you have a will to make sure that your family is provided for and that your assets go to the people you want to care for and believe are deserving. However, failure to keep your will up to date or not managing your assets while keeping your will in mind can cause major problems with ademption.

Ademption and Your Will

Ademption occurs when the property that the Will leaves to someone is not present in the Testator’s estate when the Testator dies. Ademption only applies to specific bequests which are particular pieces of personal or real property.

What is a Delaware Directed Trust?

Published on: September 18, 2016 | by Ettinger Law Firm

A directed trust is a type of investment trust that appoints a particular trustee, usually a bank or firm, to administer specific aspects of the trust. Trustees who are responsible for directed trusts generally have a number of other professionals who assist in their administration of the trust by providing investment recommendations and distribution recommendations to the beneficiaries. By delegating these duties, the trustee as well as the beneficiaries are benefitted because the beneficiaries now are receiving expert advice in areas such as investing, while trustees can focus on maintaining the purpose of the trust and can in some cases limit their liability, depending on the state law.

Delaware directed trusts are a specific type of directed trust that is administered in the state of Delaware. Trustees will recommend that a trust be held and administered in Delaware depending on the nature of the assets that a party holds and what they seek to do with those assets. Many advisors or trustees will recommend a Delaware directed trust if the grantor, or maker of the trust, had assets that are concentrated, illiquid or difficult to manage. Illiquid assets are those assets which cannot be sold without a substantial drop in value or assets and are unique in that they are difficult to sell because there is not an immediate demand or interest by investors to purchase the asset. Other examples of concentrated or difficult assets that may be suited for Delaware directed trusts include stocks or other securities which have historical value to the family or that the beneficiaries think will perform well long term. Here, the trustee can continue to be responsible for managing the diversified assets, while an investment advisor can work with the beneficiaries in handling the concentrated asset.
Other benefits of this type of trust involves protecting the grantor’s interest by appointing a trust protector who will act on the behalf of the grantor to ensure his or her goals come to fruition, which includes the ability to remove a trustee they feel is not following the grantor’s wishes. A distribution advisor can also be appointed to assess what is important in their specific situation when making future distributions. Additionally, in the majority of situations, Delaware’s tax laws apply to trusts as well. Delaware courts also do not require court filings in an effort to maintain the privacy of individuals and grantors can restrict a beneficiary’s access to some information, depending on the situation and trust.

Back To Basics: Preventing Will Contests

Published on: September 16, 2016 | by Ettinger Law Firm

Every family has at least one horror story of a death in a family turning into a protracted legal tragedy well documented publicly by a probate court. An angry heir dissatisfied with their share of inheritance or a disinherited family member desperately trying to claim a stake of the predeceased’s estate contests the will and alleges a whole manner of improprieties in order to invalidate the will or one of the bequests made under it. A testator considering a future will contest can take steps to protect his or her estate from challengers and minimize the negative effects that a challenge can have.

Destroy All Previously Revoked Wills

A common occurrence in the probate court is for someone who was to inherit under an older version of a testator’s will to present the revoked copy as the testator’s true and most recent will. This can only happen though if the testator does not take proper steps to discard and make it apparent that an older will is now revoked. Writing ‘void’ or ‘revoked’ on each page of an older will or physically destroying the will shows everyone that the will is no longer valid.

The Right to Die: New York’s Medical Aid in Dying Act

Published on: July 12, 2016 | by Ettinger Law Firm

Nationwide

The Death with Dignity Act gained national attention when it Brittany Maynard, a 29 year old woman suffering from an incurable brain tumor, chose to end her life with the help of a lethal dose of medication. Since then, a national debate has resurfaced about terminally ill patient’s ability to decide when, not if, they are going to die. Currently, the Death with Dignity Act has been passed in California, Oregon, Vermont and Washington, with proposals in many more states, including New York.

New York

What To Do When There are Multiple Wills Written: Which Takes Precedence?

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

Over the course of your life, you go through many stages. For some people that includes moving to and from different states, entering or dissolving a marriage, having children, losing loved ones, and having significant changes in income. As these events shape your life, your outlook and perspective on how you want your assets to be taken care of may change. If you decide your wishes have changed and you execute a new will, you should carefully assess whether any previous wills or documents differ from the terms of your new will, as to make sure your wishes are properly followed.

Two Wills

Traditionally, in estate planning if a person leaves two wills and both are offered into probate, the court will look at the surrounding circumstances to determine which will ends up taking precedence and which will be considered revoked. The best way for the maker of the will to express that the most recent will is the one they want followed, is by explicitly revoking the earlier will in the writing of the new will. Issues can arise in probate court when it is not clear whether the maker of the will, also known as the testator, wanted the first will completely revoked.

ARBITRATION CLAUSES IN WILL OR TRUST

Published on: February 3, 2016 | by Ettinger Law Firm

NEW YORK RULE ON ARBITRATION FOR PROBATE DISPUTES

The idea of using quasijudicial means to settle disputes is as old as the country itself. More specifically arbitration is a method that parties utilize that is usually cheaper, quicker and often with much less formality, yet still adheres to principles of fundamental fairness. George Washington famously included a proviso in his will that outlined a method to arbitrate certain disputes in the execution of his will. Certainly this was no minor matter, as President Washington was perhaps the wealthiest landowner in Virginia and by extension maybe the wealthiest American at the time.

In today’s dollars, President Washington would be worth an estimated half a billion dollars, succeeded by perhaps only President John F. Kennedy’s wealth. By the time of President Washington’s passing in 1799, arbitration was already well established in the United States. New York no longer permits arbitration in the context of a dispute over a last will and testament, as it would unconstitutionally interfere with the power of the Surrogate’s Court to adjudicate disputes involving the disposition and transfer of property of decedents, the administration of estates and probate of wills. Matter of Jacobovitz, 58 Misc. 2d 330 (Nassau County, 1968). The same cannot be said of arbitration clauses in trust documents. There is much diversity of treatment of arbitration clauses found in trust documents, with New York taking a middle of the road approach to interpretation and enforcement of arbitration clauses in trust documents. That principle, however, only applies to the application of the transfer of property via an individual’s last will and testament. It does not apply to the mediation and adjudication of disputes in trust documents controlled by New York law.