New York Estate Planning & Elder Law Blog

3 Things to Remember About How Adoptions Impacts Estate Planning

Published on: February 9, 2021 | by Ettinger Law Firm

Many families in New York, as well as the rest of the country, are considered “blended”, which means that many families bring children from previous relationships into new relationships or marriages. Whether or not a family is blended can end up influencing how families should structure estate plans to achieve various goals.

Under New York law, an adopted child is treated identically to how biological children of the adopting parent are. There are, however, unique issues to consider when it comes to adoption and estate planning. Some of these key concepts are discussed in this article.

# 1 – Establishing a Trust

3 Tips on Estate Planning During a New Presidential Administration

Published on: February 7, 2021 | by Ettinger Law Firm

Recent and substantial changes in the country’s executive and legislative branches have many people curious about how the estate and gifts tax will be impacted as well as when such changes will occur. During his campaign, President Biden pledged to cancel many tax policies implemented by President Trump.

Most noticeably, in response to the Tax Cuts and Jobs Act of 2017, President Biden had promised a much more progressive approach focused on increasing the tax burden of high-income individuals.

What Tax Changes Are Likely

3 Critical Things to Remember about New York Holographic Wills

Published on: February 4, 2021 | by Ettinger Law Firm

In the recent case, In the Estate of Hohmann, a person passed away without leaving an executed will. The deceased man’s caretaker, however, found a handwritten document where the deceased man stated his wishes for his assets. The deceased’s cousin later applied to probate the handwritten document like a written will. An heir of the deceased man later filed an opposition to the probate process. The trial court then granted summary judgment for the opponent and the applicant appealed.

The court of appeals subsequently held that valid wills must be in writing, signed by a testator, and attested by two or more credible witnesses. Even if a document does not meet these requirements, however, it can be admitted to probate as a holographic will if it is handwritten entirely by the testator and the testator placed a signature or initials on the document to execute it.

The court then held that the document had not been signed and was not valid. The court also noted that while signatures can be informal and that the location of signatures is of secondary importance, the testator must intend his name or mark to constitute a signature. In this case, however, the court found no evidence indicating that the testator intended the phrase to be used in such a way. The court also found that when the written document is viewed as a whole, the testator’s signed names bore no connection to any other provisions in the document.

3 Pieces of Advice on Estate Planning for Your Digital Assets

Published on: February 1, 2021 | by Ettinger Law Firm

One of the biggest changes to estate planning over the last few decades has been the increase in the number of estates that own digital assets. If you fail to create plans for how your digital assets should be handled after your incapacity or death, undesirable consequence could occur involving the asset. In some situations, your family or loved ones might even be blocked from accessing an account.

With a properly written digital asset plan, you can make sure that your digital assets are adequately handled in case something happens to you. This might mean that the assets are deleted or transferred to the ownership of someone else. The best-written estate plans can also make sure that your services are sufficiently closed if something happens to you and that these assets do not continue to train money from your estate. Additionally, a plan guides what you would like done with your digital assets as well as your online presence.

In the hopes that it will help you gain control over the future of your digital assets, this article reviews some critical things that you should remember about creating an estate plan for your digital assets.

Important Issues to Consider About Federal Estate Tax in 2021

Published on: January 26, 2021 | by Ettinger Law Firm

As we enter into 2021, the country remains in a state of flux. Following the United States Presidential election in November 2020, the beginning of January also saw the Georgia run-off which involved two seats in the United States. While the Republican Party had 50 seats in the Senate before the run-off and Democrats now hold 48 seats, this number after the election changed to 50 seats for the Republican party and 50 seats for the Democrats as well as a tie-breaking vote by Vice President-Elect Kamala Harris as the president of the Senate in favor of the Democrat party. This change in political administrations in the country will almost certainly result in some substantial changes not just the federal estate tax but also other critical estate planning issues.

How the Change in Political Administrations Will Impact Estate Tax Planning

Firstly, certain provisions are already slated to disappear from the law. Other provisions are attainable as part of the give and take of the legislative process, while a third group of legislation is unlikely to be introduced out of concern of alienating voters in the 2022 elections. Some of the provisions likely include:

Ways to Avoid Being “Squeezed” as an Elderly Caregiver

Published on: January 23, 2021 | by Ettinger Law Firm

The term, sandwich generation, was created to refer to a generation of individuals who were taking care of their parents while also having their own children. As the baby boomer generation ages, younger individuals are moving into a similar situation and in many cases are doing so at a younger age than their parents did. While this can be a complex process, adequate planning can help.

A recent AARP study found that approximately one in four family caregivers is a millennial, which refers to individuals born between 1980 and 1996. One reason why younger caregivers are becoming more common is that many baby boomers decided to wait until later in life to have children. Another reason for the increase in millennial caregivers is that divorces are more common and millennials are often acting in the caregiver role that a spouse would have filled.

Caregiving for an elderly loved one is not an easy process. For one, providing care to an elderly loved one is a time-consuming process. Young caregivers also have less secure jobs and are hesitant to discuss caregiving obligations with the previous generation. Even in the best situation, acting as a caregiver while juggling employment and other obligations can be overwhelming. Through adequate planning, you can fortunately avoid some of the stress associated with caring for your loved one. As a result, this article reviews some important support systems that you should make sure to have in place if you are caring for an elderly loved one.

What Ochse v. Ochse Means for Trust Planning

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

In the November 2020 case of Ochse v. Ochse, a Texas court heard a case that could potentially have a ripple effect on how trusts are interpreted. In this case, a mother established a trust that provided the trustee was authorized to make distributions to both the trustee’s son as well as the son’s spouse. At the time the trust was executed, the son was married to his first wife, but later divorced and married a second wife. The son’s children then initiated legal action against the son for breaching fiduciary duties as trustee and joined with the first wife who is also the mother as necessary parties. The first wife and son then filed competing summary judgment motions addressing whether the first or second wife was the son’s “spouse” as referenced in the trust. The trial court then held that the second wife was the correct beneficiary at the time of the suit. The first wife subsequently appealed.

What the Case Involved

The second wife and son argued that the use of the word, “spouse”, in trust documents did not mean the first spouse’s actual name. Instead, these parties argued that the term referred to the class of whoever was currently married to the son. The court of appeals, however, disagreed. The first wife argued that in the absence of contrary intent, a gift to a “spouse” of a married individual must be construed to mean the spouse at the time of the document’s execution instead of a future spouse. The first wife further argued that the terms “primary beneficiary’s spouse” as well as “son’s spouse” referred to the first wife because she was the son’s spouse at the time that the trust was executed. Both interpretations requested the court to view spouses as either statuses or class gifts.

Lessons Learned After IRS Proposes User Fee for Estate Tax Closing Letters

Published on: January 20, 2021 | by Ettinger Law Firm

Executors as well as the personal representatives of estates can be held personally liable for either applying or distributing estate assets when there are unpaid estate taxes owed in case the Internal Revenue Service is not paid. When estate tax returns are not filed, the final amount of estate taxes due is not determined until either the statute of limitations expires or an audit occurs. Consequently, estate fiduciaries are left uncertain about whether or when an adjustment to estate taxes will occur if the Internal Revenue Service has accepted an estate tax return as filled.

This type of response is unfair to both fiduciaries and beneficiaries because the most fiscally responsible fiduciaries can hold back on distributions until the amount taxed is more certain. To assist fiduciaries in assessing whether tax is due, an estate tax return is filed with the IRS. These returns are often issued following review by the Internal Revenue Service and a decision about not to audit or following the completion of post-audit procedures or litigation.

The Role of Estate Tax Closing Letters

Lessons Learned After New York Mail Fraud Case

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

The Department of Justice recently indicted four men including two individuals who are located in Canada and two in the state of New York for a mass-mailing scheme that robbed thousands of senior citizens of tens of millions of dollars.

Based on the Canadian indictments, the accused fraudsters sent mail to thousands of elderly individuals whose names and addresses were obtained from mailing lists. The mail promised cash prizes in exchange for a fee of anywhere from $19.95 to $39.95 and included a return envelope to mailboxes across the United States that were rented using fake identities.

Based on the New York indictments, the accused fraudsters sent mail to hundreds of thousands of elderly individuals in the guise that they could win millions of dollars in cash rewards if they paid a fee between $19.99 to $24.99. Many of the people who sent money in response were elderly. These alleged fraudsters obtained the names and addresses of victims through mailing lists and netted $7.5 million per year.

3 Tips on Discussing Estate Planning with Your Parents

Published on: January 17, 2021 | by Ettinger Law Firm

While many members of the Baby Boomer generation view Millennials as self-involved, the Millennial age group has been maturing. Some Millennials are even currently in their early 40’s. This means that many Millennials are reaching a point where they are having to engage in difficult conversations with their parents about estate planning. While many people falsely believe that estate planning is only the process of designating who should receive what assets as well as how debts are settled after a person passes away, estate planning also involves deciding who should make decisions about incapacity as well as other critical end of life issues. To better help you prepare to have a conversation with your parent, this article reviews some critical estate planning discussion tips that you should remember.

# 1 – What Documents You Need to Prepare

Wills are critical for resolving issues with a loved one’s estate after they pass away. There are also other types of critical paperwork that your parents should prepare while they are still alive. These documents include things like health care proxies, living wills, and powers of attorney. Creating these documents is critical, particularly if your loved one has a history of either Alzheimer’s or dementia. You should also know where your parent stores all of this paperwork. You should additionally ask your parent to create a list of passwords for accounts.