New York Estate Planning & Elder Law Blog

How Significant is the Initial Hearing of a Contested Will?

Published on: July 23, 2018 | by Ettinger Law Firm

Probate can be a lengthy process if the heirs or beneficiaries of a decedent’s testamentary document disagree about the distribution of property and assets. An Order to Show Cause prepared by the Plaintiff’s attorney constitutes verified complaint, and is the initial hearing procedure of a contested will. Plaintiff testimony concerning the disputed will document is required to be granted a court ordered preliminary injunction. An injunction prevents distribution of the Estate assets while probate due process is undertaken.

Injunction of a Contested Will Matter

Estate laws in the U.S. provide injunctive relief is necessary if a court determines that irreparable harm to the plaintiff of a verified complaint may occur. The court also reviews evidence of any reasonable probability of a greater hardship to the Plaintiff in the interim if an injunction is granted. Finally, “public interest” is considered in the granting of a preliminary injunction, to determine if denial of restraints will have impact beyond the scope of the Plaintiff’s complaint.

Recent Changes to Internal Revenue Service AFRs for Gifts and Estates

Published on: July 21, 2018 | by Ettinger Law Firm

Applicable Federal Rates (“AFRs”) increases signal an upswing in federal taxation of estate and gift transfers to beneficiaries in the immediate future. Internal Revenue Service (“IRS”) AFR regulation mandates tax accountability of gifts and estates, as well as installment sales and intra-family loans. The latest AFR rate hike will make transfers of all kinds less attractive in the near term. Estate planning professionals recommend review of gift and estate-tax planning and portfolio management of interest-sensitive assets for changes in AFR assignment.

How will IRS applicable AFRs affect my estate?

Taxation of interest rates is a key element of the estate financial planning strategy. In accordance with the most recent federal IRS ruling, Applicable Federal Rates (“AFRs”) will increase under IRC Code § 7520. Since January 2018, AFR rate trending has risen from 2.60% to 3.40% in July 2018.

New Jersey Congressman Introduces Proposal for Medicare Long Term Care Insurance Benefit

Published on: July 20, 2018 | by Ettinger Law Firm

Ranking Democratic member of the House Energy and Commerce Committee Frank Pallone, Jr. of New Jersey recently introduced a new proposal aimed at tackling the rising costs of long term health care insurance to give seniors a better life. Under the current system, Medicare only covers very limited long-term care and support for seniors until a senior eventually qualifies for the Medicaid program after they have depleted all of their financial resources.

If adopted, the The Medicare Long-Term Care Services and Supports Act would enact multiple measures to help seniors get the care they need without depleting their finances. Among other things, The Act would includes incentives for people to seek care at home and give much needed relief to overburdened family caregivers by compensating these individuals for lost income other retirement benefits, and career opportunities if they have to cut back on work hours or leave the workforce.

The Act would establish a standard cash benefit within Medicare for anyone who is eligible for Medicare and those under the age of 65-years old who meet certain disability thresholds and begin after a two-year waiting period that functions as a deductible. The proposed legislation would allow individuals to use their self-directed benefits towards all long-term services and supports, including nursing facility care, adult daycare programs, home health aide services, personal care services, transportation, and assistance provided by a family caregiver.

Avoiding Probate in New York

Published on: July 18, 2018 | by Ettinger Law Firm

New York estate owners can avoid probate with stipulation of transfer-on-death (“TOD”) designation of assets within their will or estate testamentary documents. The state presently prohibits TOD deeds for real estate and automobile registration transfer, yet properties held in joint tenancy, bank accounts, and other cash convertible assets like bonds and securities are eligible for payable-on-death (“POD”) or transfer at time of an estate owner’s death.

Designation of POD bank accounts

The law allows for POD designation of estate owner bank accounts, including certificates of

The Tax-exempt Benefits of Spousal Rollover IRAs

Published on: July 16, 2018 | by Ettinger Law Firm

Rules of required minimum distribution (“RMD”) within defined contribution plan retirement funds, are usually relatively little while a participant is still alive. Previously, the rules to RMD were less favorable depending on the terms and conditions of the plan, and form of distribution elected, as well as the relationship between the participant and the beneficiary, and the beneficiary’s age. Now, surviving spouses can benefit from transfer of defined benefits from pension fund accounts to a spousal rollover independent retirement account (“IRA”). The latest rule treatment of RMD payout, surviving spouses and designated beneficiaries can now extend the distribution period.

Calculation of RMDs at Time of Death

When a defined contribution plan participant dies calculation of RMDs (and proxy for beneficiaries 10 years or fewer years younger than the participant) no longer coincides with the Uniform Lifetime Table. The Single Life Table applied to RMDs accorded surviving spouses and beneficiaries of participants, has traditionally afforded a shorter distribution period. Without adequate transfer option, designated beneficiaries have been forced to accept double-sized distributions after the participant’s death. The former rules also prevented surviving spouses from remarrying due to Joint and Last Survivor Table distribution restrictions.

Anthony Bourdain Leaves Bulk of Estate to Daughter but Wife Could Contest

Published on: July 16, 2018 | by Ettinger Law Firm

According to reports, celebrity chef Anthony Bourdain has left the bulk of his $1.2 million estate to his young daughter, which will be placed into a trust that will make two payouts over her lifetime. Bourdain’s estranged wife, on the other hand, was named executor to the estate will receive his personal effects including furniture, cars, books, and even his frequent flier miles which could be quite valuable given the deceased’s career as a professional traveller.

Documents filed with the Manhattan Surrogate’s Court indicate Bourdain’s estate was worth $1.21 million, including $425,000 in savings, $35,000 in brokerage money, $250,000 in personal property and $500,000 in “intangible property” which includes royalties. Media outlets report that Bourdain’s 11-year-old daughter is the primary beneficiary of his trust which will distribute assets when she is 25 and 30, and disperse the remaining balance when she turns 35 years old.

Establishing trusts for minors is a very common practice in estate planning as it is meant to these young persons do not become overwhelmed by receiving an inheritance all at once, which could lead to financial mismanagement. In the meantime, a guardian appointed by the Surrogate Court will safeguard the younger Bourdain’s estate until the final payouts are made. While all this may seem straightforward, experts reviewing Bourdain’s estate situation believe it may be subject to complications, including potential challengers by the spouse.

New York Tax Law Rules of Domiciliary

Published on: July 14, 2018 | by Ettinger Law Firm

With President Trump’s recent immigration reforms impacting the domiciliary status of many New York residents, estate trust administrators are faced with changes to the taxable status of those asset transfers. New York Consolidated Laws, Estates, Powers and Trusts Law (EPTL) applies specific rules to asset transfer procedure when there is a change in domiciliary of a trust holder. The federal Internal Revenue Service (IRS) provides fiduciary income taxation rules for U.S. residents with foreign income (I.R.C. §§ 1, 61), estates, and generation skipping asset transfers (I.R.C. §§ 2001, 2031-2046, 2601). Non-U.S. residents are subject to U.S. income tax from income sourced solely in the country, and are subject to taxation of estate, gift and generation skipping transfer of U.S. situs assets.

New York Rules to Domiciliary

In New York, trust asset transfer falls under three (3) categories of domiciliary: 1) resident, 2) nonresident, and 3) exempt resident.

Research Shows Link Between Anxiety in Middle Age and Dementia Later in Life

Published on: July 10, 2018 | by Ettinger Law Firm

A recent study suggests that people with moderate to severe anxiety in middle age may be more likely to develop dementia as they get older. The study based its conclusions off of data from four previously published studies that tracked a total of 30,000 individuals over a 10-year period and clearly shows a link between living with anxiety in middle age and developing dementia later on in life.

The findings were published in the BMJ Open, a an online, open access journal, dedicated to publishing medical research from all disciplines and therapeutic areas. While the study was not a controlled experiment designed to prove whether or how anxiety might directly contribute to the development of dementia, it is nonetheless shines light on how mental health is just as important as our physical health as we age.

One of the study’s senior authors believes that dementia may develop after anxiety during middle age because of the increase in and constant elevation of stress hormones may cause brain damages across regions associated with memory. However, that same author is unsure whether treating the underlying anxiety and reducing the levels of elevated hormones would end up reducing the risk of dementia in old age.

The Trust as Fund Investor

Published on: July 10, 2018 | by Ettinger Law Firm

The primary benefit of trust and family foundation investment in stock funds, is the transferability of those vested assets to cash. Unlike real property, securities offer wealth enhancement features, as well as a ready source of liquidity. The Securities and Exchange Commission Act of 1934 (“The Exchange Act”) is the legislation binding securities transactions. The Act also applies to rules of securities investment and transfer of shares as part of fund interests or irrevocable trusts within federal and state estate and probate laws. Section 16(b) amendment of the Act in 1999, improved estate planning benefits of transferable stock options, no longer requiring stock options to be non-transferable for trust investors to take advantage of tax-exemption rules.

Still, there are qualifying rules for trust investors. A licensed attorney at law experienced at matters of estate planning and probate law can provide professional advice about securities investment and qualifying rules for trust investors.

Qualifying Rules for Trust Investors

Inheritance Rights of Children with Unmarried Parents

Published on: July 7, 2018 | by Ettinger Law Firm

In the United States, the inheritance rights of children with unmarried parents are virtually the same as those of children with married parents.

New York estate law allows trust holders to leave property to anyone named in a will, trust, or other joint estate or investment device. Where there is no will or trust naming heirs or beneficiaries, however, estate distribution of assets is left up to the courts. For children of unmarried parents, this latter scenario can lead to lengthy probate litigation. Unmarried parents who have not affirmatively left property in a will, or distributed it in a trust, run the risk of leaving their children a serious legal mess.

The “Illegitimate” Child in Estate Law