New York Estate Planning & Elder Law Blog

Important Steps to Take After a Loss: Part 1 – Immediately

Published on: September 13, 2017 | by Ettinger Law Firm

Death is a challenging subject, even more so when we are confronted with it directly. When a loved one dies, it is an immeasurably difficult experience. People experience a range of emotions, and often it can be hard to understand what to do next. In this series, we will explore some of the important steps you need to take after experiencing the death of a loved one. While these are not exhaustive lists, the first part of this series is dedicated to helping you understand some of the things that need to be addressed as soon as possible after the death of a loved one. It is not easy to bring yourself to undertake some of these tasks, but being aware of how crucial many of them are is an important part of finding ways to accomplish them – either personally or by enlisting the help of someone your trust.

Safeguard Property and Secure Arrangements

Depending on the circumstances surrounding a person’s death, it may become crucial to ensure that any property they have left behind is properly secured. This may include their home and/or their vehicle. You will want to make sure everything is locked and stored appropriately, that utilities are shut off, and that anything potentially dangerous to others has been properly taken care of.

How Much Does an Estate to Go Through Probate?

Published on: September 12, 2017 | by Ettinger Law Firm

Planning your estate and having a last will and testament is important to ensuring your final wishes are carried out and your heirs receive everything you intend to pass on to them. Whether you are the testator or executor, there are many duties you will need to perform to make sure an estate passes as quickly as possible through probate court, including calculating the costs associated.

First and foremost, New York probate courts handling estates have a variable schedule of filing fees which depend on the size of the estate. Section 2402(7) of New York’s Surrogate’s Courts Procedure Act (SCPA) are as follows:

Value of Estate or Subject Matter Fee	Fee Rate
Less than $ 10,000	$45.00
$10,000 but under $20,000	$75.00
$20,000 but under $50,000	$215.00
$50,000 but under $100,000	$280.00
$100,000 but under $250,000	$420.00
$250,000 but under $500,000	$625.00
$500,000 and over	$1,250.00

Section 2402(8)(a) of the SCPA also proscribes a fixed fee for filing a petition to commence certain proceedings. These types of fees can range anywhere from $10 to $75, depending on the type of motion filed. Such petitions can include common probate proceedings such as filing wills and suspending a fiduciary.

What are the fees for executors in New York?

Under section 2307 of the SCPA, executor fees are based on the value of the estate. These fees can be between 2 and 5% of the total amount of estate money the executor receives and pays out. Executor’s fees in New York are as follows:

All sums of money not exceeding $100,000 at the rate of 5 percent
Any additional sums not exceeding $200,000 at the rate of 4 percent
Any additional sums not exceeding $700,000 at the rate of 3 percent
Any additional sums not exceeding $4,000,000 at the rate of 2.5 percent

All sums above $5,000,000 at the rate of 2 percent

These amounts come out of the value of the estate and in cases where multiple executors handle an estate, the split is commiserate on the amount of work performed by each individual.

Attorney costs for probate of a will

When going through probate, it is strongly suggested the executor seek help from an experienced and dedicated New York probate and estate lawyer. The fees associated with a probate attorney depend on size of the estate, work put in by the executor, and the complexity of the case.

529 College Savings Plans and Estate Planning

Published on: September 11, 2017 | by Ettinger Law Firm

Today, financial planning and estate planning are inherently intertwined in a number of different ways. Comprehensive estate planning requires responsible financial planning, and responsible financial planning will create assets which comprehensive estate planning will help you protect. One of the world’s most important assets is our children. Once children enter the picture, their future becomes one of the most important focuses of a parent. To that end, one of the most important aspects of a child’s well-being is their education and a college savings plan – typically known as a 529 plan – can be an integral part of financing higher education opportunities, which makes it an important part of your estate planning considerations, too.

Understanding 529 College Savings Plans

A 529 college savings plan is a state-sponsored program that enables parents or other interested individuals to set aside money each year to eventually help offset the rising costs of higher education. These plans are meant for long-term contributions that build the amount by collecting earnings on the principal you contribute to the plan. Eventually, you can make penalty-free withdrawals from the plan as long as you are using those withdrawals to pay for qualified educational expenses. These withdrawals may even be made directly to a school for such expenses. Some states offer various types of plans, but most of them accomplish the same goal.

What is a Qualified Personal Residence Trust?

Published on: September 9, 2017 | by Ettinger Law Firm

When planning their estate, many individuals consider setting up some form of trust to avoid family squabbles over assets, particularly the home. To achieve the goal of a smooth transition of assets and maintaining family harmony, most folks choose to set up some form of trust to avoid probate and reduce the amount of time and money executors need to spend in court.

Although many may not realize the significant wealth they have accumulated over the course of their life, the reality can quickly set it when it comes time to pay estate or gift taxes when passing on a home to heirs. After decades of skyrocketing real estate prices, home that were once purchased for several thousand dollars may now be worth millions, depending on the condition of the home and location.

One way for highly wealthy people to pass on their home with as little tax liability to heirs as possible is the creation of a qualified personal residence trust. Just like any type of estate plan, there are benefits and drawbacks to consider and it is strongly advised individuals consult with an experienced estate planning attorney to draw up trusts and wills.

Estate Planning for Your Pets

Published on: September 8, 2017 | by Ettinger Law Firm

For many people, pets are more than just entertainment. They can easily become part of your family, making memories more special and providing endless enjoyment for their human companions. Given the important role pets play in our lives, it is important to consider them when engaging in estate planning. This is especially true when an individual has a less traditional pet or a pet with special needs that may require extensive care were the pet’s human companion to pass. There are several ways to ensure that your pet or pets are taken care of should something happen to you.

Pet Provisions

While we may view pets as being a member of the family, the law sees them as property. Therefore, it is important to make sure that you include specific provisions in your Will that name the person or persons that will be responsible for caring for your pet. You will also have the opportunity to set aside funds for pet care in your Will. It is important to be specific about whom should inherit your pet as well as what assets you ill bequeath them, if any. It is also a good idea to discuss pet care with the person you have in mind prior to naming them in your Will to determine whether or not they are in a position to adequately care for your pet.

Do Not Forget Yourself in Your Estate Plan

Published on: September 6, 2017 | by Ettinger Law Firm

For the most part, most of your comprehensive estate planning is aimed at making sure other people are taken care of after your death. However, providing for others is not the only goal of estate planning in today’s world. As we begin to live longer lives, we must also take our own potential needs into consideration when designing an estate plan. Recently, Forbes ran an article that pointed out many people make a huge mistake when engaging in estate planning: they forget to plan for their own well-being. In other words, an important part of your estate plan is making sure you put mechanisms in place to address scenarios where you may become seriously ill or disabled, or for circumstances where you may require long-term care. The following important documents should be part of everyone’s estate plan.

Advanced Health Care Directive

An advanced health care directive allows you to nominate an individual that can make decisions about your healthcare should you become incapacitated or otherwise unable to make such decisions on your own. The amount of leeway given to this nominee depends on how you structure the directive, which means that you can make it as narrow or as broad as you would like. These work in tandem with living wills, which can be used to explain the type of medical treatment you do and do not want to receive in certain circumstances. Together, these forms can help spare family members and other loved ones from making difficult decisions that may be contrary to your wishes because they enable you to clearly convey your views on medical care.

Using Portability to Get the Most Out of your Estate Tax Exemptions

Published on: September 5, 2017 | by Ettinger Law Firm

One of the most common estate planning goals for high net worth married couples is to reduce their estate’s tax liability by taking full advantage of state and federal estate tax exemptions. The 2012 Tax Relief, Unemployment Reauthorization, and Job Creation Act (TRA) gave couples much more leeway to plan for their state through the portability of a deceased spouse’s unused estate tax exemption.

In 2017, the estate and gift tax exemption will be $5.49 million dollars for an individual, and just under $11 million for married couples, thanks to the 2012 Act. While there are a number of ways to properly implement the portability of estate and gift tax exemptions, one of the more common ways is to create a family trust where the assets of the first spouse to pass away will be placed in under the individual’s own gift and estate exemptions.

Without portability, couples can end up leaving millions of dollars in assets subject to taxation because of improper planning. Two of the most common reasons couples fail to properly use take advantage of gift and estate tax exemptions are unbalanced asset ownership or an inefficient estate plan.

Medicaid and Estate Planning

Published on: September 3, 2017 | by Ettinger Law Firm

For a long time, Medicaid has had the reputation of being a program that provides insurance and other benefits to poorer individuals throughout the United States. In some ways, recent contentious debates have deepened that image. However, a recent article from Business Insider points out that this is simply not true. In fact, Medicaid often plays a crucial role in estate planning for those in nursing homes or in need of various other forms of long-term care.

Medicaid and Long-Term Care

The article notes that the average price of long-term care options for senior citizens have risen approximately 19 percent since 2011. That is far greater than the amount of social security or pension increases that accompany the increase in these costs. Given that people are living longer lives and that the cost of long-term care is constantly on the rise, this should not be surprising. According to the article, about 28 percent of Medicaid funds are used to finance long-term care costs.

Know the Law: What is a Durable Power of Attorney?

Published on: September 2, 2017 | by Ettinger Law Firm

An important consideration in anyone’s estate plan is to consider appointing a trusted individual to make important health and financial decisions in any case where the testator may be incapacitated and unable to act in their best interest. One way to do this is to create a durable power of attorney in a living will which names another person as an agent or an “attorney in fact” to decide whether or not to continue with life support treatment and other important medical decisions.

In New York, Pub. Health Law §2980, et seq. Health Care Agent and Proxies details the powers of the attorney in fact, the legal requirements to create such an arrangement, when the agreement may be revoked, and the state to state applicability of the durable power of attorney. Specifically, the law allows the attorney in fact to make “Any decision to consent or refuse consent of any treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition.”

Health Law §2980 requires individuals to fill out Standard Form §2981 and name a competent adult to the position. Additionally, the form must be signed in front of two witnesses and indicate the principal wishes his or her agent be able to make healthcare decisions and that this authority begin when an attending physician decides to a medical degree of certainty the principle cannot act on behalf of himself or herself.

Creating a Succession Plan for Your Business

Published on: August 30, 2017 | by Ettinger Law Firm

If you are in sole proprietorship of your business, you have a number of options to hand over your company when it comes time to retirement or pass away unexpectedly. If you do not have partners in your business, you are generally within your right to hand over the entire company to any person you may see fit to do and avoid estate taxes up to a point if you plan ahead of time.

One option to hand over a business to another and avoid some state and federal gift taxes is to gradually gift over percentages to the benefactor overtime before you pass away. If you do die before the entire transfer is complete, the heir may be on the hook for exorbitant estate/gift taxes. Currently, the estate tax exemption is $5.49 million over the life of one individual and up to $11.98 million for couples.

If you do have partners and you would like to retire or sell you your stake in the company, you may consider writing a buy-sell agreement into the language of your partnership agreement. These buy-sell agreements may be mandatory with the full understanding you intend to sell of your stake in the company to another or they may allow only the right of first refusal for the partner to buy the stake or pass and allow an other interested party to buy in.