The New Generation of Estate Planning - Young, Wealth, and Childless

June 2, 2014,

For those who are single or childless, estate planning options are vast and often complicated. It is estimated that over 17 million people who are retirement age are unmarried or childless facing this very dilemma. However, a new wave of estate planners are now facing the same issues of those retirees - the young, wealthy, and childless.

Since the tech boom in the 1990s, a considerable number of young entrepreneurs are becoming millionaires and billionaires. Due to their financial circumstances, these people are considering financial and estate planning at a much younger age. The vast majority of this younger generation is childless, some are unmarried, and all are considering what will happen to their wealth when they are gone. Because of this shift in wealth, estate planning attorneys are now stressing income, instead of age, as a more reliable metric for when you should be drafting a plan for your estate.

The most important thing to this new generation of estate planners is flexibility. When planning for the future at this age, there is a higher chance of changing circumstances both personally and financially. The probability of starting a family or having swings in finances is much greater in a person's 20s and 30s than at the typical retirement age. Estate planning attorneys are now coming up with new and flexible options for this generation of young, wealthy, and childless clients.

Besides providing for extended family and loved ones, the most popular option is charitable donation. Many want to participate and donate to charitable options like the Giving Pledge without locking into a long-term commitment. One way to do this is through a donor-advised financial fund which allows the donor to make periodic contributions at their discretion without a mandated dollar amount or period of time. Another benefit of such funds is that the donor receives tax breaks immediately and does not have to go through the messy paperwork typical of such major gifts. Another option is to plan the estate with language that provides for a potential family legacy while leaving a portion or the remainder of the estate to another organization.

With the trend of young, rich, and unattached people planning their estates at a new age combined with the fairly recent addition to estate planning of digital assets, attorneys are reevaluating the typical methods of estate planning and are coming up with innovative ways for people to plan for the future. However, these new options are not just for the young, wealthy, and childless wishing to plan their estate. Everyone can benefit from these new possibilities in estate planning, and by speaking to an experienced estate planning attorney you can incorporate these ideas into your plan.

Common Goals of Estate Planning for Married Couples

May 30, 2014,

Estate planning is meant to provide direction and security for loved ones when we pass away, but complications can arise in the estate planning process when structuring a plan as a married couple. Each person in the marriage has individual estate planning goals, tax-related objectives, and ideas for the future. However, upon probing deeper through the individual wants and needs of the spouses common goals run through the estate planning process of almost all married couples:

· Providing for family and loved ones
This is typically the top priority for all married couples. They want to know that their surviving spouse, children, grandchildren, extended family and friends are all provided for after they are gone. Even pets can be provided for if an estate plan is structured correctly.

· Minimizing taxes
Couples also want the taxes on their assets to be as minimal as possible so that their beneficiaries can fully inherit after they are gone. This includes federal estate and income taxes as well as state estate and income taxes.

· Protecting property/assets going to family and loved ones
Similar to providing for loved ones, married couples also want to know that specific property and assets will be protected from creditors or from future family issues such as a future spouse.

· Cost effective planning
The cost of estate planning is one of the main reasons why couples put off the process for so long. They want to have a plan in place that meets the individual and couple's goals, but at the same time want a plan that isn't too costly to create. In most cases a compromise must be made. In order to achieve all of the estate planning goals a basic level of complexity must go into the planning process. At the same time, structuring an incredibly intricate plan can be costly. Therefore, finding an attorney that can cover all of the basic goals while also keeping the plan under a certain budget is vital.

· Privacy in estate planning matters
Keeping the decisions of estate planning private from others is also a common goal of most married couples. Not only does it keep their business out of public knowledge, it can help protect the surviving spouse or other beneficiaries from being the victims of fraudulent schemes after the estate plan goes into effect.

· Control over assets
One of the biggest concerns that married couples have when estate planning is ensuring that the surviving spouse has control of the assets of their marriage after one passes away. The same is true in most cases when it comes to ensuring that the children will also have control over the assets of the marriage when both spouses pass.

· Planning for incapacity
Although it is tough to think about, most couples also want provisions in an estate plan that provide for the incapacitation of themselves or their spouse. An estate plan can provide for more than just death, and in the case of incapacitation a plan can dictate power of attorney as well as medical wishes.

· Asset management
Typically, one spouse in a marriage is more adept at asset management, and an estate plan can structure a new management system for the surviving spouse if the other is incapacitated or passes away. This ensures that someone capable is always managing the family's assets.

Discussing these common goals before meeting with an estate planning attorney can help a married couple facilitate the process of creating an estate plan. Not only does the process become much easier, it also provides peace of mind that both individual and common goals are being met when planning for the future.

Dealing With the Logistics of Estate Planning

May 28, 2014,

As discussed in a prior post, the estate planning process is not a do-it-yourself project. An experienced estate planning attorney is necessary to ensure that all of your wishes are met and that your loved ones are provided for after you pass away. However, after the estate plan has been created, what do you do with it? And what about all of the other, smaller details that come with incapacitation or passing?

New companies are springing up that deal with these specific issues. Instead of sticking the will in a manila envelope in a security deposit box or in the back of a filing cabinet, these companies store all of your estate planning documents online. Some companies allow you to do more than store your estate planning documents online. It helps you make all of the smaller decisions or even send out invitations to your memorial after you pass. These websites also provide for an executor or deputy to also have access to your plans so that they can be carried out once you have passed. These companies are also planning for their own demise - for example, Everplans has already enacted a plan that will allow users to access their estate planning materials up to fifty years after the company has been sold or dissolved.

For those who have already made all of the decisions about memorials, funerals, and smaller details there are still options for storing your estate documents securely online. Dropbox and SecureSafe are cloud storage options where you can upload your documents, and your executor or beneficiaries can access it from anywhere if they know the password. These options give you the benefits of online storage without needing to decide all of the extraneous options.

The most important thing to consider if you decide to store your estate planning documents with an online source is security. Some companies claim that they have "bank-level security" and others will tell you about the high level of encryption that will protect your documents online. For those not so tech-savvy the best option is to simply research the companies, read reviews, or ask your estate planning attorney for advice. Some estate planning attorneys are now setting up their own private online storage sites for estate planning documents that also allow their clients to detail arrangements for their passing, and other attorneys are working specifically in conjunction with already established companies

Whatever method you choose to store your estate plan, make sure that someone you trust knows where it is and how to access it. With the advent of end-of-life online companies it is now becoming easier to plan every detail of your estate plan from the largest legal aspects of inheritance and bequeathing to the smallest detail such as recommending a restaurant after the services. While it is still vital to have an estate planning attorney draft all of the legal documents of your plan, it is nice knowing that you can provide even more ease and direction to your loved ones after your passing.

Having a Bon Voyage - Specifying End of Life Decisions that Lay Out Your Last Wishes

May 23, 2014,

It has been said that life is a journey, not a destination. So it makes sense that in our last days, on our final journey, we should strive to have a good one--a bon voyage.

While talking about end of life issues--particularly our own--can sometimes be uncomfortable, the best way to make sure that your end of life wishes are honored is to lay them out in writing and make sure that your loved ones are aware of them. Don't miss the opportunity to have a bon voyage--take the opportunity to set out your end of life wishes and take control of your journey.

Unfinished Life Matters
Sometimes so much focus is placed on the medical and legal aspect of dying that the personal aspects get brushed aside. However, the reality is that it is much easier to have a bon voyage if you are happy or at least satisfied when you depart. This involves taking care of loose ends and putting things right where necessary. Personal matters to consider include--

**Saying things you need to say to loved ones, friends, and others, such as "I'm sorry." "I forgive you." "Thank you." "I love you." "Goodbye."

**Determining whether you may need psychological, emotional, spiritual care, counseling, or other support.

**Writing a personal legacy or story, telling any life lessons or outlining your hopes and dream, as well as leaving any helpful advice, for loved ones.

**Creating a "bucket list," outlining any things you would still like to accomplish or setting out any goals of for your remaining medical care.

Funeral Wishes
Funeral arrangements are very personal and options vary widely--from in-ground burial, mausoleum burial, cremation, as well as other possibilities. Some planning and logistical questions include--

**Do I want to donate my organs for transplant or donate my body to science?

**Which funeral home/mortuary do I want used?

**What are my feelings regarding embalming, burial, cremation, casket, burial location?

**Who should be notified of my passing?

**Who will write my obituary and what should it say if you are not writing it yourself?

**What do you envision for a funeral--a church service, a party or dinner, a memorial service?

**Will you pre-pay your funeral expenses or where will funds be held?

**Do you want to specify a charity or other cause "in lieu of flowers"?

Medical And Legal End Of Life Paperwork
A complete estate plan typically involves the documents identified above as well as a pour-over will, a revocable living trust (RLT) or an irrevocable Medicaid asset protection trust (MAPT), power of attorney for finance, and deeds and memoranda regarding personal property. In particular, questions related to medical and/or legal arrangements include--

**Do you have a will and possibly a trust? When is the last time you looked at these documents and thought about their provisions? Do the provisions reflect your current wishes and desires for distribution of your personal and real property, as well as your other assets?

**Do you have a Living Will? Does it state your wishes regarding the type and extent of medical treatment you want in the event that you can no longer speak for yourself?

**Have you made your feelings known about matters such as "Do Not Resuscitate (DNR)" orders or your feelings on CPR? What are your feelings on palliative care and natural death? What are your feelings regarding breathing tubes (intubation) and feeding tubes? A Living Will allows you to record your wishes regarding organ donation, pain relief, funeral, and other advance planning matters. It is an important source of guidance for your health care agent.

**Have you executed a Durable Power of Attorney For Healthcare? Have you also selected a Health Care Proxy? Have you specified an alternative proxy in case your first choice is unable or later unwilling to act as proxy? A health care proxy is a designated decision-maker who will make medical decisions for you if you become incapacitated and cannot make decisions for yourself. Your health care proxy should be someone with a strong personality; someone who will fight for you and your wishes.

Thinking of end of life matters can be uncomfortable and challenging, but most things are easier when we have some control over them. Expressing your wishes and making affirmative decisions regarding end of life matters will hopefully allow you to have a peaceful departure and a bon voyage.

With Age Comes Wisdom - Limiting Child's Access to Family Money

May 20, 2014,

The current generation of older Americans make up the wealthiest generation this country has ever seen. As the number Baby Boomers (people born between 1946 and 1964) retire or pass on, the United States is expected to see an "inheritance boom" unlike any other in history. At the same time, the generation that stands to inherit this money generally lacks the money management skills to handle these inheritances. But there are some things that the older generation can do to help the younger generation "grow into" its money.

Provide Children And Grandchildren With A Financial Education

Young adults often are launched into adulthood with little or no financial education. In the United States, only four states require students to take a personal finance class in high school. Worse yet, a 2009 study by the University of Arizona and the National Endowment for Financial Education gave students an "F" grade for money management skills. When the study was repeated two and a half years later, students' money management had declined by an additional 7 percent.

Five money management skills that members of the older generation can help to teach their children and grandchildren include--

1. You sometimes have to wait to buy something you want. Although this is a hard concept to learn, the ability to delay gratification can determine how successful one will be as an adult.
2. You need to make choices about how to spend the money you have. Financial decision-making is a key factor in successful money management as an adult. It is important that children and grandchildren be taught that money is finite and that when money is spent on one thing, it is not available for other another thing.
3. The sooner you start saving, the faster your money can grow. The concept of compounding interest is critical for children and grandchildren who will be inheriting or otherwise receiving family money because they need to learn that saving accrue on the initially received money plus on past interest received from the initial savings.
4. You should pay with credit card (or cards) only if you can pay off the balance in full each month. The average American household has over $15,000 in credit card debt. This, along with average student loan debt which is almost $34,000, threatens to choke most young people. To counter this debt trend, it is important that the older generation help children and grandchildren understand that it is important to budget and use credit cards wisely.
5. You need to know how to budget. Learning to create a budget is a main key to learning to live within one's means and budgeting techniques are critical for a successful adulthood.

Establish A Trust

One option to slowly ease children or grandchildren into the adult world of personal financial management is through a trust. One form of trust which is sometimes used in the case of inheritance is a "spendthrift trust." A spendthrift trust can be created for a child or grandchild to limit access to the trust funds. An independent trustee is given full authority to make decisions about how trust funds can be spent for the benefit of the child or grandchild and funds are not under the child's or grandchild's control. An additional benefit of the spendthrift trust is that the child or grandchild cannot assign any of his or her present or future income to creditors, or sell his or her rights to the trust principal.

A spendthrift trust can be tailored to the maker's specific wishes and particular family circumstances. For example, a spendthrift trust can be established for the child's or grandchild's lifetime or until he or she reaches an age designated by the maker of the trust. To ensure that family wealth is responsibility passed on to the next generation, it is important to discuss trust specifics with an experienced NY estate planning law firm.

Estate Planning is Not a Do-It-Yourself Project

May 16, 2014,

Recent economic times caused many people to take on a lot of home projects that they otherwise would have hired out to a handyman. While some do-it-yourself (DIY) projects turned out alright, people often found that seemingly easy projects were significantly more complicated than they had anticipated. Worse yet, sometimes these DIY projects even end with disastrous consequences, requiring calling in professionals to fix the job at greater hassle and cost than would have originally been incurred if the professional had been called in the first place.
The same can be said for estate planning.

DIY Estate Planning "Kits" And Pre-Packaged Computer Software Are Not The Answer

Regardless of how smart or talented someone is in other areas of his or her life, proper estate planning is not something that can be done out of a DIY "kit" or on some software package.

DIY Kits

Do-it-yourself kits are notoriously inadequate and incomplete. At best, they can be a waste of money. At worst, they can be an outright scam to bilk you out of your entire estate. According to AARP, older adults are frequent targets of fraudulent and deceptive business practices and a healthy dose of skepticism is warranted when considering estate planning services.

In particular, AARP warns against living trust kits and seminars, as well as "free lunch" financial seminars. The organization advises, "If you want to know if a trust is right for you, seek advice from a licensed and experienced estate-planning attorney."

Pre-Packaged Software

In similar fashion, Consumer Reports advises against using pre-packaged estate planning software in all but the most simple of estate planning circumstances. Consumer Reports tested several brands of software using profiles of individuals from three different New York families.

Using the various estate planning software (which operates like tax software), Consumer Reports found problems with all software packages that were tested. These problems included:

-Outdated information- some of the software products referred to federal estate-tax limits that were outdated;
-Insufficient customization- the products did not give sufficient detail on state laws and offered no guidance on certain situations;
-Too little flexibility in some cases- the products created arbitrary limits and would not allow certain distributions to be made as desired, despite the legality of such distributions;
-Too much flexibility in other cases- the editing and open ended narrative features of some programs allowed information to be added that could outright contradict other parts of the will document;
-Incompleteness- important matters related to estate dispositions were omitted from each of the software programs considered, including certain critical tax matters.

As the AARP and Consumer Reports reviews show, no DIY kit or prepackaged computer software can adequately substitute for the skills and individual attention of an estate planning expert.

Estate Planning Is Important Enough To Use A Professional

End of life planning involves considering an individual's very unique and personal circumstances. It involves important decisions on how your life and property will be handled if you become incapacitated, as well as how your property and assets will be distributed when you pass on. And there is no one-size-fits all answer for these questions.

Further, while drafting up a will, trust, or power of attorney may seem like a relatively simple task, any mistake in preparing these estate planning documents can create catastrophically bad results down the line.

An experienced estate planning attorney has knowledge of several areas of the law, including estate planning, tax law, real estate law, elder law, and business law, as well as succession planning. He or she can make sure your end of life intentions are properly expressed and honored.

Putting Conditions on a Trust in New York

May 13, 2014,

For many New Yorkers, the term 'trust' continues to invoke visions of the super wealthy. Similarly, terms like "trust fund baby" are used to refer to spoiled, rich individuals who do no work on their own and simply live off their parents savings. The connotation is always negative.

As our estate planning attorneys often explain, however, trusts are critical tools for families of all income levels. And there is no reason why children who benefit from the trust suddenly become slovenly or without their own motivations. For one thing, many trusts are not large enough to offer income that can last a lifetime. Even when the trust is large, conditions can be placed on child-beneficiaries which can help prevent them from relying solely on an unlimited stream of income.

Incentivizing a Trust in New York
A helpful Tribune article last week discussed some of the ways that trusts can be created to offer incentives to beneficiaries. The basic idea is simple--add "strings" so that the beneficiaries of the trust only receive money if they meet various conditions. A range of conditions can be added, but the most common relate to promoting responsible achievement in the next generations--requiring graduation from college or holding a steady job. By limiting the child from any proceeds unless they meet these requirements, one can flip the script, not only avoiding the trap of the trust acting as a de-motivator, but making the trust actually act as motivation to succeed.

These trust condition can be very helpful in tailoring an estate plan to one's exact specifications. However, they come with many pitfalls. When not crafted carefully, the conditions may unintentionally become far too restrictive or too expansive, failing to meet the intended goal. For example, requiring completion of college before receiving trust benefits may seem straightforward. But, what exactly counts as receiving a college degree? A bachelor's degree? What about an associate's degree? Does completion of a trade school count? The conditions need to be specific and clear.

In addition, there are some limits to trust conditions--both legal and practical. In general, conditions that violate the general public good can be invalidated. For example, requiring a child to divorce his wife before receiving anything may not hold up because the public supports the general goal of preserving marriages.

Get Legal Help
As always, do not attempt to craft these arrangements on your own. Contact an experienced New York estate planning lawyer who can explain the many options available to you and ensure the plan is drafted appropriately.

Prenuptial Agreements in NY - Part 2: Challenging The Validity Of A Prenuptial Agreement

May 9, 2014,

To challenge the validity of a prenuptial agreement, one looks to see if any of the above elements were abused or not satisfied. This can include--

1. Duress- A prenuptial agreement can be voided if one party was pressured or coerced into signing it. Duress also can be shown if the agreement was presented too closely to the wedding date and is not given enough time to think about the terms of the agreement before signing it. Some sources suggest that agreements signed within 60 days of the wedding may be challengeable based on duress. For example, duress has been shown where the wedding is only days away, the invitations have been sent, large sums have been expended, and cancelling the wedding would be costly and embarrassing. Another example is a case where the groom presented a prenuptial agreement just before the bride's visa was to expire and told her to sign or the wedding would not take place prior to the visa's expiration date.

2. Lack of mental capacity- Lack of mental capacity can be shown if the agreement was signed when one party was drunk or under the influence of drugs.

3. Lack of full disclosure- Failing to provide complete and truthful financial statements or the outright hiding of assets can constitute a lack of full disclosure.

4. Lack of independent counsel- An attorney or counsel can be shown to be partial if he or she was provided or paid for by the party demanding the prenuptial agreement.

5. Unconscionable Terms/ Lack of fairness- Disproportionate asset division alone does not make a prenuptial agreement unenforceable, but the agreement cannot be so disproportionately unfair that it is unconscionable or unscrupulous.

6. Child support and child custody provisions- Agreements that specify an amount of child support or dictate who will receive custody of any marital children are unenforceable as against public policy.

7. Unenforceable provisions- Provisions that make unreasonable demands of one party may be deemed unenforceable by the court. Examples of unenforceable provisions include requirements that one party must maintain a certain weight or keep a certain hair color, or must do certain chores (i.e., walk the dog or do the dishes).

8. Ambiguous terms or provisions- A prenuptial agreement is a contract. If a contract is not clear or has ambiguous terms or provisions, it is interpreted against the party who drafted it and in favor of the non-drafting party.

9. Fraudulent inducement/promises made but not kept- Fraudulent inducement is the use of deceit or trickery by one party to cause the other party to act to his or her disadvantage. For example, in a recent New York case, the wife claimed that her husband-to-be promised to tear up their prenuptial agreement as soon as their first child was born. After the couple had children, the husband refused to tear up the agreement and sought to enforce it when the couple divorced. The court ruled that the agreement was void because the wife had been fraudulently induced to sign it, believing the promise that the agreement would be destroyed upon the birth of their first child.
10. Verbal/unwritten agreement- Because of the serious nature of a prenuptial agreement, oral agreements generally are not valid.

The validity of a prenuptial agreement may be challenged in whole or in part. A court may decide to strike only certain provisions from the agreement, leaving the remainder enforceable. Alternatively, the agreement may be so weakened by certain provisions or circumstances that the entire document may be unenforceable.

If you have questions about how these agreements are crafted or how an agreement may fit into your long-term planning, be sure to contact a New York estate planning attorney today for tailored guidance.

Prenuptial Agreements in NY - Part 1: Enforceability

May 8, 2014,

Every year, over 2 million people get married in the United States. In the same year, almost 900,000 people get divorced. Broken down even further, approximately 50% of all first marriages, 67% of all second marriages, and 74% of all third marriages end in divorce. With these statistics, it should be of little surprise that the use of prenuptial agreements is on the rise. However, one surprise may be that more agreements are being requested by women.

In New York, the state statutes have little to say about prenuptial agreements. Section 3-303 merely says, "A contract made between persons in contemplation of marriage, remains in full force after the marriage takes place." This is because prenuptial agreements, by their nature, are highly customized and tailored to the couple who is entering into it.

In general, a valid prenuptial agreement requires the following--

Free Will

In order to be valid, each person entering into the prenuptial must do so of his or her own free will and must not be coerced into signing the agreement. The circumstances surrounding the negotiation and signing of the agreement need to be free from duress, overreaching, or coercion.

Disclosure

Valid prenuptial agreements require full disclosure of each person's financial assets and liabilities. This includes disclosure of financial statements for bank accounts, investment accounts, real estate holdings, business interests, vehicles, and other assets, as well as disclosure of liabilities, including outstanding loans, mortgages, and other debts.

Independent Counsel

Independent counsel means that each person to the agreement should have his or her own attorney, rather than sharing an attorney or being required to use one that is being supplied by the other person.

Fairness

The fairness provision is subjective. In general, a prenuptial agreement does not have to be equal, but it must not be so disproportionate, or call for one party to give up so much in the event of a divorce, that the agreement is considered unconscionable.

Proper Acknowledgement

In New York, a prenuptial agreement must be properly acknowledged or witnessed. Proper acknowledgement serves to prove the identity of the people signing the agreement and it adds formality to the situation to encourage careful reflection and prevent hasty decision-making regarding execution.

If you have questions about how these agreements are crafted or how an agreement may fit into your long-term planning, be sure to contact a New York estate planning attorney today for tailored guidance.

Not For Ourselves Alone - Estate Planning Beyond Immediate Family

May 6, 2014,

"Not for ourselves alone are we born; our country, our friends, have a share in us" is a famous phrase by the Roman philosopher Cicero. While the phrase is several thousand years old, it still has great applicability to estate planning today, because many people are still seeking to leave a legacy of good for their community and friends after they pass on.

Leaving A Legacy Of Good

Americans are generous people. In the United States, charitable contributions by individuals make up a vast majority (72%) of all charitable donations to nonprofit organizations. In fact, the State of New York ranks fifth in overall charitable contributions, with individual donors making an average charitable contribution of $5,150 annually. In addition, these same charitable donors also make will bequests that are, on average, almost triple the amount of their lifetime donations.

Legacy considerations and estate planning are relevant for everyone, regardless of their economic status, marital status, or age. Estate planning is not just for the wealthy, and it is not just for married people with children. In fact, many people come to realize they feel strongly about the idea of leaving a legacy after they experience a life changing event such as a divorce, spousal death, retirement, new job, change in economic circumstances, or health crisis.

Philosophical Questions

While many people are interested or intrigued by the idea of creating a legacy, they often do not know where to begin the process.

If you are considering using your wealth for good after you pass on, sometimes the best place to begin the estate planning process by considering your core values and asking yourself what general type or types of charities or causes you wish to support. Possible charitable classifications and causes include:

-Animals- including animal rights, animal welfare and services, wildlife conservation, zoos and aquariums
-Arts, Culture and Humanities- including libraries, historical societies, landmark preservation, museums, performing arts, public broadcasting and media
-Education- including universities, graduate schools, technology institutes, private elementary and secondary schools, other educational programs and services
-Environmental- including environmental protection and conservation, botanical gardens, parks, and nature centers
-Health- including diseases, treatment and prevention services, and medical research
-Human Services- including children's and family services, youth development, shelters, crisis prevention services, and food pantries
-International- including relief services, humanitarian relief, and international peace and security
-Public Benefit- including advocacy and civil rights, fundraising organizations, community foundations, and community and housing development
-Religion- including religious activities, religious media and broadcasting

Ways Of Leaving A Legacy

There are several gifting strategies and wealth transfer tools that can help an individual to leave a legacy for his or her family, friends and community, including the following:

1. Including specific bequests in a will- a will provides a simple plan for distributing personal and real property. A bequest can specify a particular piece of real or personal property, or it can be general in nature, such as cash.
2. Establishing a trust- there are several types of trusts which can be used depending on a donor's intentions and goals. Three of the most common are life insurance trusts, revocable living trusts, and irrevocable gift trusts. Trusts are often useful for avoiding probate, as well as reducing estate taxes.
3. Designating a beneficiary designations on life insurance policies, IRAs, retirement plans, and annuities- these assets are automatically distributed upon your death, which generally allows them to avoid probate.
4. Setting up a donor-advised fund with a community foundation- community foundations provide grants and scholarships to nonprofit organizations in a designated area. A donor-advised fund gives some control over distribution of funds while sharing administrative costs with other funds held by the foundation.

Creating a legacy plan is an important reason to embrace the idea of estate planning. Your donations can give lasting meaning to your life and make a significant difference in the lives of others. Please contact Ettinger Law Firm at (800) 500-2525 ext. 100 if we can help you with your estate planning needs.

Common Reasons for Contested Wills in New York

May 2, 2014,

Many people know that having a will is necessary in order to properly ensure the deceased's wishes are followed and desired transfers are carried out once they are gone. However, the importance of having the proper documentation in place does not end there. Careful estate planning is crucial to a will being upheld as valid in the event it is contested. If estate planning documents are not properly executed, the document is in danger of being challenged and may be ultimately revoked.

Common Challenges to a Will

An estate planning document such as a will may be contested for a number of different reasons. Perhaps heirs are not satisfied with their inheritance, or maybe family members fear their loved one made a bequest against their will. No matter the reason, the fact remains that wills do get challenged. Some of the more common challenges involve the following:

***A will that was previously revoked is presented as valid: If an executor is trying to pass an outdated will, a newer will that was created will likely invalidate it. Both destroying an old will and dating both documents accurately can help to avoid a situation such as this.

***The testator's mental capacity at the time they executed the will is in question: The testator generally must be at least 18 years old to have capacity to create a will. Beyond that, in order to prove an adult lacked mental capacity to form a will, the challenger must prove the testator did not understand the consequences of making a will at the time of its execution. Certain requirements must be met to prove capacity, including understanding the extent and value of one's property, who the person's expected beneficiaries are, the disposition they are making and what their will means, and how these elements relate to distribute their property.

***The document was not properly executed according to legal requirements: This can include lacking sufficient or appropriate witnesses, or failing to contain provisions that are required to be part of the will by law. Although certain things, like having a will notarized, may not be a formal legal requirement, there are steps a testator can take to further authenticate the will as valid and assure a challenge to it will not be successful.

***There is evidence of fraud, forgery, coercion, or deception in drafting and executing the estate planning document: This can involve a scenario in which a third person influenced a vulnerable testator into leaving all of their property to them. Undue influence is usually a factor to be considered, which involves the testator lacking the free will to bargain because of the person influencing them.

***There is evidence of unauthorized changes or additions to the document: Usually, this involves things like handwriting over a will provision or providing a handwritten addition to a will. The will itself may provide for ways in which it can be changed properly.

Estate Planning Attorney
Whether you are considering challenging a will or are seeking help in defending a challenge to a will, an experienced estate planning attorney can assist .

Back to the Basics: What is the Difference Between Revocable and Irrevocable Trusts?

May 1, 2014,

While many New York residents familiar with and have an existing will in place in the event of their death, most people do not realize that estate planning documents extend far beyond a last will and testament. The world of estate planning documents includes not only living wills and advanced medical directives, but also trusts. Trusts offer several benefits associated with them, and come in two forms: revocable and irrevocable.

Benefits of Having a Trust
Trusts can not only provide for loved ones upon death, but they can provide for the person who created the trust during their lifetime. This is important in cases where the creator has a health issue, a mental disability or incapacitation, and other scenarios. Trusts can be administered without the need to involve a probate court, and can therefore protect privacy as to the contents of the trust. Trusts also serve as protection of assets for trust beneficiaries, and offer a wide variety of options in creating them to suit different needs.

Revocable Trusts
Revocable trusts are a type of trust that can be changed at any time. The creator of the trust could simply modify the terms of the trust through an amendment. Or, if they want to revoke the trust in its entirety, they can do that as well. In revocable trusts, the assets contained within the trust are considered the creator's assets and will be treated as such for tax purposes and if creditors exist.

Irrevocable Trusts
As one may expect from its name, an irrevocable trust is not able to be changed once it is signed by the creator of the trust. These trusts are often complex and require a special degree of care in drafting them in order to meet the creator's needs and desires for his or her estate. It is imperative to consult with an experienced estate planning attorney when setting up an irrevocable trust in order to ensure your estate is properly protected, and any concerns you have about being unable to change the terms of such a trust are addressed and handled appropriately.

That being said, irrevocable trusts have a number of specific benefits associated with them. Often times, estate taxes are significantly lessened or even eliminated through the creation of an irrevocable trust. Irrevocable trusts also offer a high degree of asset protection for the creator of the trust and the trust's beneficiaries. Both of these advantages are possible with irrevocable trusts because once the assets are placed into an irrevocable trust, the creator gives up his or her control and ownership of the trust assets.

NY Estate Planning Attorney
If you are interested in securing estate planning documents or are interested in further discussing the benefits of trusts and how they apply to you, the experienced estate planning attorneys can help you.

Be Aware of Cemetery Rules & Guidelines

April 29, 2014,

Delineating funeral and burial wishes is a common part of estate planning. Everyone has unique desires about their final resting places, incorporating personal, spiritual and religious preferences. In addition, the perspectives of surviving family members are also taken into account. That is because spouses and children may wish to remember their loved one in various ways. For example, it may be important for family to have a specific place, such as a memorial or cemetery plot where they can go to honor one's memory.

Unfortunately, when few plans are in place ahead of time, families may be forced to rush these decisions. Mistakes can be made, which lead to disappointment, regret, and sometimes even more conflict.

Memorial Feud
Consider the legal struggle one man is facing after disagreement erupted about his practices at a cemetery. As discussed in a recent story, a father was devastated when his 23-year old son died in a tragic rafting accident in 2011. The young man died without a will, and so all funeral and burial plans were left to his family to be made in a hurry. The father purchased 15 different plots at a local cemetery and is currently using only five of them. However, on those five plots he has erected a growing shrine with a small fence,flags, flowers, and large posters of his deceased son on 8-foot high poles.

The shrine caught the eye of the cemetery superintendent who asked the man to alter the memorial due to complaints received. Specifically, the father was told to remove the posters on poles for violating cemetery rules. The father refused, arguing that when the posters were added there were no rules prohibiting them.

This has set off a legal battle. The father filed a lawsuit in a local court. The judge issued a temporary restraining order in the father's favor, allowing the memorial to remain while noting that the state Cemetery Dispute Resolution Committee was the proper venue for the matter. As it now stands the father is preparing his complaint to be filed with that body in a month.

Plan Ahead
This unfortunate situation is a reminder of the need to think about many different detail when making long-term plans of this nature. Cemeteries have many different rules that may affect your decision. It is common to have limits on decorating plots, use of flowers, requirements for vases/stands, and more. Cemeteries also may have vastly different rules regarding visiting hours, parking, plot size, and more.

For help crafting an estate plan in New York, contact the experienced legal professionals at our firm today.

Dispute Over Documents Settled Between Harry Belafonte & MLK Estate

April 25, 2014,

Even after a loved one is gone, disputes over his or her estate can continue to arise. For example, nearly forty-six years after the 1968 assassination of Martin Luther King, Jr., his estate is still involved in legal battles. Most recently, the King estate was in conflict with singer and activist Harry Belafonte over documents Belafonte claims were given to him by King and his widow, Coretta Scott King. Among the documents are an outline of an anti-Vietnam War speech written in 1967, a letter of condolence from President Lyndon Johnson to Coretta, and notes to a speech that King was never able to deliver.

The dispute first arose when Belafonte made plans to auction off the documents to the highest bidder at Sotheby's, Inc. In response, the King estate took legal action that resulted in Belafonte's being blocked from selling the documents. Belafonte in turn brought suit in federal court against the King estate. Ultimately, the parties reached a settlement, the terms of which are confidential. It is known, however, that Belafonte will be able to retain possession of three of the documents in question. In a joint statement, the parties' respective lawyers conveyed a message of mutual satisfaction: "The parties express their appreciation to one another for the good -faith efforts that led to this resolution."

Intra-Family Disputes
The dispute with Harry Belafonte is over, but it does not represent the end of the legal concerns of King's family and estate. The children of Dr. King are again fighting in court over possession of his Nobel Peace Prize medal, as well as one of his Bibles. The estate, which is controlled by King's sons Martin Luther King III and Dexter Scott King are embroiled in a dispute with Bernice King over ownership of the medal and Bible. Ironically, the brothers are claiming the right to sell the items, just as Belafonte had with regard to the documents in his possession. Bernice is opposed to any sale of the items, and until an outcome has been reached, the Bible and medal will be held in a court-controlled safe deposit box.

Protecting Your Estate
Careful planning in the present can prevent future confusion, disagreement, and disputes. If you or a loved one have questions or concerns regarding the contents or legal rights of an estate, be sure to contact a New York estate planning lawyer with experience in dealing with these issues.

See Our Related Blog Posts:

Broken Estate Plans May Need to be Fixed

Clumsy Estate Planning: Transferring A House to a Child

What is "Donor Intent" & How Does It Affect a NY Estate Plan

April 22, 2014,

Charity is an important part of an estate plan for New York families. Many residents have important causes that symbolize their own values and morals, including social, political, economic and religious non-profit groups. Donating funds via a will or trust is common for estates of all sizes--this is not just for the wealthy. Even relatively small donations can have a significant impact. In addition, giving funds to valued causes is a key way to pass on a final lesson to future generations.

There are many different ways to give assets to a charity at death. In the simplest form, funds can be given for the charity to use in any way it chooses. However, many donors have more specific wishes, often wanting to direct funds for very specific uses.

Understanding Donor Intent
"Donor intent" is the term used when delineating exactly what was intended by the giver of a gift to a charity. Unfortunately, disagreement often breaks out regarding whether the funds were actually used by the charity in the manner the donor intended. These disputes can arise for many different reasons:

***What if the charity is no longer doing the specific work delineated by the donor?

***What if the organization is in desperate need of operating funds to continue general business, even though the donor specifically wanted to funds to go to sub-set program?

***What if the donated funds are not large enough to actually accomplish the intended purpose? Or if there are extra funds remaining after the purpose is met?

Another layer of complexity is that the actual donor intent itself may not be clear. When written generally (and without proper legal help) there may be many interpretations. After a passing, the donor is not around to clarify his or her wishes and so the stage is often set for contentious disagreement between surviving family members, advisors, the charity, and other interested parties.

Casebooks are filled with drawn-out legal battles related to these issues. Ideally, planning itself should be done to limit ambiguity and prevent conflict before it arises. A legal professional can help by clarifying the specific goals of the donor and ensuring that only an appropriate level of flexibility is included in legal documents. In addition, there are various ways to actually structure a gift--it can be more than just cutting a check--and a lawyer can explain what option makes the most sense in your case.

Experienced Legal Guidance
The complexity of this issue is one reason why it is critical to have the help of an experienced estate planning attorney when crafting these arrangements. Even details that seem straightforward at first--like donating money to charity--can come with unique challenges. It is always prudent to take the time to draft inheritance documents carefully to avoid future disagreements and feuds.

For help on these and similar matters throughout New York, please contact the legal professionals at our firm today.