manhattan elder law

Your Estate Plan and Retiring Abroad

Published on: March 19, 2018 | by Ettinger Law Firm

Retirement is a time to relax and enjoy the things you have worked hard for all of your life. For many people, that means spending more time at the golf course or spoiling grandchildren. For others, it means adventure and traveling to places they have always wanted to go. In many cases, a person or couple’s objectives in retirement can best be met by retiring abroad. Whether you are doing so for the cost of living, to be closer to family, or just because you want to there are important considerations to keep in mind when it comes to your comprehensive estate plan.

Taxes

No matter what country they live in, citizens of the United States are still required to pay taxes to Uncle Sam. If you maintain residence in a state, that state may also continue to impose taxes on you. While you would likely be paying those taxes if you remained in the United States, living abroad could also subject you to taxes in the host country. That means you may face issues of double taxation, and that can have a significant impact on the assets you retain within your estate.

How the New Tax Laws Could Help your Estate Planning Goals

Published on: March 13, 2018 | by Ettinger Law Firm

The new tax laws taking effect in 2018 give both individuals and couples even more flexibility to plan for their estates and ensure the largest possible part of their estate goes to beneficiaries on a tax-free basis. While the changes will remain in effect until 2025, families should start formulating estate plans now in order to take the greatest advantage possible of the reforms and craft the best possible plan for the future.

The tax reform bills substantially increases the individual estate and gift tax exemption from $5.6 million to approximately $11.2 million and up to $22.4 million for a married couple. After December 31, 2025, the numbers will revert back to their 2017 numbers adjusted for inflation. However, law makes no changes to the 40 percent tax rate currently imposed on transfers in excess of the exemption amount.

With the new changes, wealthy individuals and couples should consider immediately making large gifts or create trusts to maximize their federal estate and gift tax exemptions. Having the ability for married couples to transfer up to $22.4 million can benefit multiple generations of family members and avoid any future additional wealth transfer taxes. Furthermore, those who have already expended their gift tax exemptions prior to the end of 2017 will now have an additional $11.2 million to work with.

Mortality Rates Down for Older Americans

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

Promising statistics recently came out early this year indicating the mortality rate for older Americans is down from 2015 to 2016, perhaps due in part to the greater access to healthcare our elders enjoy now that insurance companies cannot deny individuals with pre-existing conditions. For Americans age 75 to 84, the mortality rate improved by 2.3 percent between 2015 and 2016, or twice the rate of improvement seen between 2011 and 2016. The figures come from the Society of Actuaries and is based on data provided by the Centers for Disease Control.

Mortality also improved for those 85-years and older by 2.1 percent, which is more than three times the rate of improvement between 2011 and 2016, according to new analysis from the Society of Actuaries. However, Americans aged 25 to 34-years old saw their mortality rates increase by 10.5 percent in 2016 which represented the highest of all age brackets.

The Society of Actuaries believes the uptick in mortality rates for younger Americans is due to a spike in accidents and the nationwide opioid epidemic. According to the report, opioid deaths are up almost 25 percent across the country in 2016, which constituted the highest increase for any single type of death.

Where Do I File for Probate?

Published on: February 26, 2018 | by Ettinger Law Firm

When someone passes away, he or she typically designates an individual as the executor of the estate in a last will and testament. As the executor of the estate, that individual has tremendous responsibility to fulfill his or her duty to the deceased and carry out that person’s final wishes to distribute property as desired. Unless executors fully embrace their responsibility to act as the representative of an estate and gather all the necessary documentation, complications can arise that may delay what should otherwise be a relatively simple process.

One of the most important primary steps the executor of the estate will have to take is filling the estate with the appropriate probate court in New York State. The proper venue is in the probate court of the county where the deceased lived or intended to return to if he or she was away from their residence at the time of death. If the will is filed with the wrong probate court, the judge hearing the case will likely be forced to reject the will’s entrance to probate.

If the deceased had more than one home, the proper county would be the one where the individual primarily lived or intended to live before passing away. Often times, older people live out their final days in nursing homes or assisted living facilities in counties outside of where there home actually is. Again, the proper jurisdiction to file probate would be where the person lived or would have lived had he or she not been a resident at the nursing home or assisted living facility.

How Do I Obtain a Death Certificate in New York?

Published on: February 22, 2018 | by Ettinger Law Firm

When someone dies, a death certificate records on paper the time and place where the decedent passed away. While the funeral director where you lay your loved one to rest will usually obtain several copies for your records, it may be necessary to obtain a certified copy that has a raised seal and can be used for matters like settling an estate or claiming insurance benefits.

If someone passes away in New York City, Bronx, Brooklyn, Manhattan, Queens, and Staten Island, you can obtain a copy from the New York City Office of Vital Health either online or through the mail. If the decedent passed away outside of New York City but in the state of New York, you can order a certified copy of the death certificate online or by mail from the New York State Department of Health.

It is important to note that death certificates can take anywhere from three to four weeks to receive once ordered and are comprised of two parts: the standard certificate of death and the confidential medical report detailing the cause of death. To obtain the confidential medical report with the death certificate, you must be a relative of the deceased. That person can be: a spouse, domestic partner,parent, child, sibling, grandparent, grandchild, informant listed on the certificate, or person in control of disposition.

What are Advance Directives for Healthcare?

Published on: September 16, 2017 | by Ettinger Law Firm

Advance directives for health care are legal documents that ensure an individual’s wishes are carried out if he or she cannot make decision. New York State recognizes three types of advance directives including a health care proxy, living wills, and do not resuscitate orders (DNR). Even younger and more healthy individuals should consider putting these types of directives into place in case of a serious accident or medical event.

Health Care Proxy in New York

A health care proxy allows individuals to name a health care agent who will make decisions if that person cannot make those decisions for himself or herself. Under state law, these types of decisions can take effect after two doctors examine the individual and determine that person cannot make decisions for his or her health. New York state offers standard forms for a health care proxy.

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.

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.

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.

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.