New York Estate Planning & Elder Law Blog

The Insolvent New York Estate

Published on: October 19, 2016 | by Ettinger Law Firm

The legal entity that owns and controls a person’s property after they die is known as an estate. The person who leaves behind an estate is called the decedent. It is customary for the decedent to appoint someone to administer the estate and act as the executor of the estate in his or her last will and testament.

The executor of the estate fulfills many roles and responsibilities for the estate throughout the probate process. One of the most important duties that an executor performs is to pay off any final expenses that the decedent incurred as well as to pay off any debts and claims against the estate. New York Surrogate’s Court Procedure Act dictates what debts and expenses should be paid out of a decedent’s estate first. However, sometimes it is not possible for an estate to satisfy all of its debts and obligations.

The Insolvent Estate

Special/Supplemental Needs Trust

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

Special needs trust are a type of trust by which the beneficiary is provided for through the trust income, but has no control over the distributions of the trust. Generally, special needs, or supplemental needs trusts, have been used to provide for those loved ones with disabilities or who are unable to care for themselves any longer.

Once a special needs trust is established, family or a loved one can put the assets in the trust for the benefit of the beneficiary in order to provide them with any number of resources they feel the beneficiary deserves. The trust funds can be used to compensate for additional medical bills not fully covered by insurance, for personal leisure, travel, or anything the grantor feels the beneficiary may want or benefit from.

Eligibility for Benefits & Being a Beneficiary

What Assets Go Through Probate In New York?

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

Probate is the legal process that takes place after a person passes away. It typically involves submitting a valid will to the surrogacy court in New York state, taking inventory of the deceased’s estate’s assets, paying off the estate’s liabilities and distributing the estate assets to the beneficiaries designated in the will. What assets go through probate though are not always what the deceased or the future beneficiaries expect. Only certain assets are considered probate assets and pass ownership through New York probate proceedings.

Probate Assets

Probate assets are those who are owned individually by the decedent or person who has passed away. These assets are a part of the decedent’s estate because they have not been disposed of through other testamentary instruments like a trust or been passed on through a survivorship right or named beneficiary designation. Typical examples of a probate asset is all the property left in a person’s residence, the residence itself, bank accounts and cars.

Why Spendthrift Trusts Can be Important to Your Inheritance Plan

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

Spendthrift trusts are a type of irrevocable trust in which the grantor seeks to leave property or assets to a beneficiary, under the terms they outline, by which the beneficiary cannot alter, because they have no legal claim to the trust property. An irrevocable trust is a type of trust by which the beneficiary cannot modify the terms of the trust without the first obtaining the permission of the grantor.

Irrevocable trusts allow the grantor to create this trust document in which they transfer their rights to the property into the trust and the trustee, a third party manager of the trust, now technically holds legal title, until the trust allows for vestment in the beneficiaries. Beneficiaries are not the only ones who lack control in these trust situations; in an irrevocable trust, once it is created, the grantor cannot undo the trust to obtain title to the property without first getting the consent of the trustee and beneficiaries.

When To Use a Spendthrift Trust

IRS Allows Trust Modification Without Forfeiting Exemption

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

A Recent Private Letter Ruling By The IRS Concluded That A Modification To A Faulty Fiduciary Provision Did Not Result In A Loss Of The Trust’s Grandfathered Generation Skipping Transfer Exempt Status

The taxpayer who submitted the modifications to the inter vivos trust for an IRS private letter ruling found himself bound a set of unfortunate circumstances. Due to the requirements of the successor trustee and appointment provisions and distribution requirements under the terms of trust, future trustees could not be appointed and distributions could not be made to the beneficiaries of the trust. Essentially the terms of the trust had frustrated the purpose of the trust. The beneficiaries were not benefiting from the corpus of the trust and the future of the trust was at risk.

Satisfying Treasury Regulations

Arbitration and Nursing Home Contracts

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

In continued efforts to protect the rights of elders, The Department of Health and Human Services has passed a rule to further ensure that elders are not taken advantage of and have the right to decide whether they seek a trial or alternative dispute resolution measures when bringing a legal claim. Currently, a majority of nursing home contracts contain arbitration clauses in the event that a residents bring a claim against the nursing home for incidents such as safety, quality of care, sexual harassment, elder abuse, as well as wrongful death.

Arbitration is a method of alternative dispute resolution that is used as a way to settle a legal claim instead of using litigation. Arbitration involves both parties and a third party neutral arbitrator, who listens to both sides present their case, similar to a judge, and renders a decision after both sides are heard. While arbitration can be a very useful and effective legal tool, the implementation of mandatory arbitration has left room for abuse of the system and injustice for residents and their families who seek legal recourse when bringing their claim. One benefit of arbitration is that it is also a private process; unlike legal proceedings, arbitration proceedings and their rulings will not be made public record, which makes it more difficult to measure rates concerning legal claims brought by elders against nursing homes.

Currently, there are roughly 1.5 million elders in nursing homes who are said to be affected as a result of this rule change, and this number will continue to grow. There may be some confusion regarding the applicability of this new rule however; the rule will only apply to new nursing home contracts that are entered into going forward. Those nursing home contracts already existing that contain a mandatory arbitration clause will be enforceable under the Federal Arbitration Act, according to the Center for Medicare & Medicaid Services. Additionally, a nursing home and potential resident can enter into a contract for arbitration if they wish, but it will not be mandatory in their contract.

The Danger of Unrestricted Bequests and Gifts

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

The Inheritance Left To University of New Hampshire By A Long Time Library Employee Was Spent In A Way That Raised A Few Eyebrows

Longtime University of New Hampshire library cataloguer died last year at the age 77. As his final wish to the world he left the entirety of his estate to the university where he graduated from and worked for most of his life. What shocked many though is the size of the humble librarian’s estate: four million dollars accumulated over a lifetime working for the university and living frugally.

But while many at the University of New Hampshire are thankful for the gift, the way the administration has decided to spend it has many asking if the university is honoring the librarian’s memory. One million dollars is being used to install a new video scoreboard at a new University of New Hampshire football stadium. Many students, alumni and community members wonder if this is the best way to use the funds considering the librarian’s occupation and passion for literature.

IRS Rules Now Reflect Updated Same Sex Marriage Rulings

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

New Department of the Treasury and Internal Revenue Service Final Regulations Now Reflect Supreme Court’s Obergefell v. Hodges and Windsor v. United States Rulings

On September 2nd, the final regulations that reflect the holdings of the Supreme Court rulings that upheld same-sex marriage laws around the country as well as Revenue Ruling 2013-173 were released to the public. The new terms in the regulations reflect the new descriptions of marital status of taxpayers for federal tax purposes.

A Brief History Lesson

Estate Planning Measures for Unmarried Couples

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

According to the 2010 Census, over 7.5 million unmarried couples or 15 million people, live together, a sharp increase from the 3.2 million unmarried couples living together in 1990. This increase in cohabitation has been attributed to a number of different factors, including increased living costs, decisions to marry later or not at all, and until recently, due to legal barriers for same sex couples.

There are many legal benefits to marriage, including rights to social security, immigration rights if one party is not a citizen, surviving spouse benefits, estate benefits, as well as joint bankruptcy filings and the right to refuse to testify against a spouse in a legal proceeding. However, these reasons alone are not justification to get married, which many couples are finding is not for them.

In order to ensure that your partner gets inheritance in the event of your passing, it is critical that the couple executes estate planning documents such as a will or trust. Naming your partner in your will ensures that they will be the beneficiary of the assets and property executed in the document. Additionally, name your partner as your beneficiary on all pensions, retirement accounts, and insurance policies and check those policies to determine if naming a non-family member is allowed or subject to specific rules.

What You Need To Know About Multinational Estate Planning

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

One of the more unique present day aspects of estate planning comes from the very mobile and connected nature that many people who need estate planning have. Many people will not just move across countries for their jobs but across borders. Globalization has brought the world closer together but added another layer of complexity for when it comes to protecting and planning for assets. A citizen of the United States needs to know what law governs taxation and their estate for their income, assets and holdings both in the United States and abroad.

Taxation Is Everywhere

Despite what many may believe, U.S. citizens and resident aliens are subject to U.S. income and estate tax on their worldwide assets. It does not matter what country those assets might be in, the income and assets must be reported. In fact, U.S. Citizens working overseas and foreign citizens considered residents of the United States must file reports with the IRS if the total value of their foreign financial accounts exceeds $10,000 at any time during the year. U.S. citizens who are officers or directors in a foreign corporation who own more than 10 percent of the foreign corporation must also report ownership.