New York Estate Planning & Elder Law Blog

What Are Marital Trusts?: Lessons learned from Comptroller v. Taylor

Published on: October 13, 2019 | by Ettinger Law Firm

An appellate court recently reversed in part and affirmed in part the judgment of the Court of Appeals concerning a decision by the Comptroller of the Treasury to include the value of a marital trust in an estate in a tax assessment. The trust contained qualified terminable interest property that was reported on the deceased individual’s federal tax return but was excluded from the estate’s Maryland estate tax return. The Court of Special Appeals held that the Comptroller lacked the authority to tax the trust assets as part of the Maryland estate. The appellate court, however, found that after the death of the deceased person’s spouse, the qualified trust assets were transferred on her death and that the transfer of the property was subject to Maryland estate tax.

A marital trust is a particular type of irrevocable trust that is designed to hold a deceased spouse’s assets that are greater than the amount capable of being protected from death taxes. Rather than be taxed at the time of the death of the first spouse to pass away, assets are not taxed until the second spouse dies. As a result, if the second spouse has limited financial means, marital trusts can play an invaluable role.

The Three Types of Marital Trusts

Lessons Learned from In re Peter Val Preda Trusts

Published on: October 12, 2019 | by Ettinger Law Firm

The Vermont Supreme Court recently heard the case of In re Peter Val Preda Trusts, which introduced some important estate planning issues that all individuals interested in creating trusts should understand.

Both the individual who created the trust as well as his wife were deceased. In June 2018, the petitioners requested the Georgia probate division to remove the respondent as the individual family trustee of the trustee and appoint the petitioner’s wife as the respondent’s successor.

The basis for removing the trustee was that the petitioner claimed the removal would improve how the trust was administered because the petitioner and respondent did not communicate with one another and that the respondent had failed to pay attention to investments of the trust.

How to Deal with Out-of-State Assets in an Estate Plan

Published on: October 12, 2019 | by Ettinger Law Firm

It is not uncommon in our region for people to own real property outside of New York State. Increasingly, people own other home or investment properties out of state and even out of the country. A will generally disposes of all of an individual’s assets. The rules are different however if the asset is real property. There are three rules to keep in mind and carefully consider when dealing with assets outside of New York as part of your estate planning process.

Consider the following rules when drafting or revising your will:

If the out of state asset is real property it is vital to develop your estate plan in conjunction with the law in that locality. Real estate assets are governed by the laws of the country or state in which they are situated. This means that the law of the other locality will determine if the New York will is recognized as valid there with respect to the real property.

Issues to Consider before Creating a Living Will

Published on: October 10, 2019 | by Ettinger Law Firm

Creating a living will is one of the areas of the estate planning that many people overlook. These documents, which are also sometimes referred to as advance health care directives, describe what types of life-prolonging measure an individual would like if they are placed on life support.

Among other reasons why these documents are overlooked is that making decisions about these issues can be emotionally difficult for people. If you have decided to finally take the valuable step of creating a living will, it is a wise idea to ask yourself some critical questions.

The Worth of Creating a Living Wills

Estate Planning and Alzheimer’s

Published on: October 8, 2019 | by Ettinger Law Firm

Following a diagnosis of Alzheimer’s, you and your loved one will end up facing a number of serious challenges.

For one, there are a number of difficult emotions including fear and uncertainty about what the future holds. Second, there are a number of complex issues involving estate planning.

As a result, this article reviews some important estate planning tips that you should remember following an Alzheimer’s diagnosis of a loved one.

Safeguarding Estate Planning Documents

Published on: October 8, 2019 | by Ettinger Law Firm

Clients call this law firm asking for a copy of their will or other estate planning documents because they cannot locate the original all of the time. Our first response is to tell them that if they cannot find the original document, then they do not really have a will. In New York, only a document bearing the original signature of the testator and witnesses can be submitted to probate. While a photocopy or electronic copy of the document may exist, it is not the original and will be rejected by the Surrogate’s Court when seeking to have an estate probated. It is not until the loved person becomes admitted at the hospital under an emergency or that person passes that those left behind start the search for estate planning documents. Another overlooked catastrophic event is damage or loss of estate planning documents after a natural disaster.

Domestic weather events, including nor’easters, tropical storms, and hurricanes often bring a great deal of water to the shorelines and shore communities of New York State. Emergency plans should include provisions for the preservation of estate planning documents. When people are asked or ordered to evacuate their homes, because of emergency weather conditions, they often only leave with the clothes on their backs and their loved ones. Not all temporary shelters for example, allow people to bring their pets with them and many times the pets stay behind. The last thing on peoples’ mind, when evacuating their homes, is collecting and preserving estate planning documents.

What are estate planning documents?

4 Retirement Mistakes You Should Avoid

Published on: October 5, 2019 | by Ettinger Law Firm

The retirement process is full of challenges. One of the best ways to make sure that you navigate this process successfully is to anticipate the various obstacles that lie ahead of you. The implementation of strategies to avoid or limit the severity of obstacles that do arise should be included in a retirement plan.

The purpose of this article is to review some of the most common mistakes that you should anticipate as you consider and begin the creation of a retirement plan.

# 1 – Failure to Create a Strategy at All

Do You and Your Partner Have Identical Wishes Regarding Your Assets?

Published on: October 4, 2019 | by Ettinger Law Firm

Some couples approach their estate planning lawyer seeking advice on creating a joint will. Generally, the estates lawyer will frown upon such a suggestion because in practice, joint wills are fraught with problems. A joint will can be created by a married couple and is a single will. A joint will is signed by the couple and in it contain provisions leaving all of their assets to each other. The reason why joint wills are not more commonly used as an instrument to bequeath gifts upon death is that usually, even in longtime marriages, most married couples do not have identical wishes regarding their assets.

Joint tenancy vs. tenancy in common

Married couples generally own real estate assets as joint tenants. A lesser form of home ownership is a tenancy in common. The key difference between the two is their effect on the distribution of assets at the death of one of the partners. Joint tenancies contain a right to survivorship. This means that at a partner’s death, their share of any joint assets become the sole property of the surviving partner by operation of law and outside any asset distribution of a will for example. In a will, assets held as a tenancy in common are distributed according to the terms of each person’s will. Tenancy in common may be a better ownership form where couples wish to gift or bequeath their assets or shares in an asset in different ways. This may be an attractive form of ownership for couples with children from a prior marriage particularly if the new spouse has no children of his or her own.

Estate Planning after the Death of a Spouse

Published on: October 3, 2019 | by Ettinger Law Firm

There are few things as painful in life as the death of a spouse. In addition to weathering the devastating emotions like loneliness and sadness that accompany this process, it is still important to plan for your future as a widow or widower.

Unfortunately in some situations, the surviving spouse might have even been left out of financial and estate planning decisions that were made before death.

This article reviews some of the important strategies that you should remember when it comes to estate planning and the death of a spouse.

A Quick Guide to the SECURE Act

Published on: October 1, 2019 | by Ettinger Law Firm

When it comes to preparation for retirement, an overwhelming number of American do not feel secure in their assets. Approximately only one in five Americans believe they have enough for retirement. This means that almost 50% of Americans have little or no confidence in their retirement savings.

The Role of the SECURE Act

The House of Representatives passed the Setting Every Community Up for Retirement Enhancement Act (SECURE) in May, 2019. The purpose of this act was to increase retirement savings. The Act then stalled in the Senate, which makes the future of this body of legislation uncertain.