Asset Protection

September 9, 2016

Understanding Testamentary Capacity Under New York Law

In order to make and execute a valid will under New York law, a person must meet certain requirements. One of these requirements is that the testator or person creating his or her will have testamentary capacity. Testamentary capacity refers to a person’s ability to understand and execute a will. Generally, most people over the age of 18 who have reached legal adulthood are considered competent to make and sign a will. They understand the nature of the document they are creating and signing, the property that will be passed and understand the effects that the document will have after their death.

One of the most common bases for contesting a will is that a person lacked testamentary capacity and for good reason. There are many ways a person can lack testamentary capacity and many of them relate to illnesses and conditions that are common in old age. In particular, challenges arising out of accusations of the testator being mentally incompetent or under undue influence are not rare, especially if the testator is of advanced age.

Mentally Incompetent

September 6, 2016

Estate Planning Under 40: Why You Need It

by Ettinger Law Firm

Making an estate plan tends to be something people ignore until the last minute. These documents are considered important, but only for those who are old or dying. Why would a person under 40 need an estate plan?

Estate planning is a safety net. It is there if the unthinkable happens. If you die or are incapacitated, a proper estate plan can help to make sure your loved ones aren’t left to pick up the pieces.

Decision Making

September 3, 2016

Protecting Assets From Previous Marriages And Yourself

by Ettinger Law Firm

Protecting Your Estate

The divorce rate in America has sat steady at just below 50 percent for decades now. From out of the troubling reality that almost every other marriage fails is the issue that comes with the rights that ex-spouses may have on marital assets after the divorce. Your family could end up missing out on assets and an inheritance due to a lack of careful estate planning. In some cases, widowed individuals who survive their spouse discover later that they have limited or no legal right to assets from their deceased spouse’s estate. If you remarry after a divorce or death you will face unique estate planning challenges that others entering their first marriage do not have to deal with.

Retitling and Updating

August 28, 2016

Life Insurance and Business Succession Planning

by Ettinger Law Firm

Few people think about what will happen to their business after they die and therefore rarely put together a plan. Fewer may even think that a family or closely held business should be considered a part of their estate plan. However, for many small business owners, their financial interest in their business may be the largest asset that they have and represent most of the wealth that they will transfer at the time of their death. When transferring a family or closely held business, a well-funded life insurance policy can play a very large role in a smooth transition.

Providing For Your Children

There are a number of contingencies that a business owner has to consider when transferring their interest in their family or closely held business. While family businesses may be a truly family affair, with children working, operating and managing the business as well as the parents, it is a fact of life that not all of the children may be interested or suited to taking ownership of the business. In some cases, there might not be any children that wish to take over.

August 25, 2016

No One’s Favorite Inheritance

by Ettinger Law Firm

Parents believe that leaving their children the family home is a great boon but experience shows that beneficiaries are not happy with the bequest.

For many people in the United States chances are that their house is their most valuable asset. It makes sense then for most parents to leave their most valuable asset to their children. But this common inheritance is only a blessing for a small few of beneficiaries and a burden on most others.

Not A Quick Sell

August 22, 2016

IRS Proposal To Overturn Common Asset Valuation Planning Met With Fierce Resistance

by Ettinger Law Firm

Newly proposed IRS regulations meant to curb common estate and gift tax planning tactics is being met with a firestorm of resistance from financial advisers and estate planners across the country. The proposed regulations (REG-163113-02) place limitations on the use of current valuation discounts that reduce the overall value of assets in family-owned businesses, thus lowering a decedent’s estate and gift tax liability at the time of death. The IRS hope to achieve this end by disregarding restrictions that enabled taxpayers to use these discounts in the past.

Wealth Preservation In Closely Held Businesses

Currently, interests in closely held businesses are not taxed the same as other property interests due to their illiquid nature. Many tax and estate planners put a family’s assets in a closely held business to reduce their estate and gift tax liability. While this is a boon for many families seeking to preserve their wealth, others argue that what started out as a helpful tax break for legitimate family businesses is being abused and exploited by those who have no legitimate use of it.

August 20, 2016

Back To Basics: Witnesses and Your Will

by Ettinger Law Firm

It is common knowledge that in order for a New York will to be valid that there must be other people to witness you signing your will as well as putting down their own signatures on your will. Despite this knowledge though improper execution of the will is the most common reason that a will is found to be invalid.

Why Do I Need Witnesses At All?

Witnesses provide an important evidentiary function to the probate process. Witnesses to your signing can provide first-hand accounts of the execution of the will. If a will is ever contested, the witnesses can testify about the procedures that were followed when executing the will, the testamentary capacity of the testator as well as the mental capacity of the testator.

August 1, 2016

Planning For Your Fluffiest Assets

by Ettinger Law Firm

Pets Are Often An Overlooked Concern in Estate Planning

Despite their ubiquitous presence across the United States, few people consider the needs of their pets in their estate plan. People tend to be so concerned with providing for their children and making sure that their assets are protected from taxes that they forget about the members of their family that are always there for them.

When you consider providing for your pet after you are gone, it is important to have all of the necessary information. If you are putting together an estate plan that addresses the issue of taking care of your pets, keep the following in mind.

July 23, 2016

Gifts to the Dead in New York: Are They Still Effective?

by Ettinger Law Firm

Most people plan their estate believing that everyone they have left money or bequests to will survive them, such as when a parent specifies that money or property will be left to a child. But sometimes unexpected deaths happen and when it does, many people are left wondering what will happen to the property that they specified to go to the predeceased. It is a tricky situation, but thankfully New York law and proper estate planning precautions can address the problem.

New York “Anti-Lapse” Statutes

Common law followed in the past dictated that gifts to someone who was deceased was null and void. This is due to the fact that a dead person cannot own property. Since they cannot have property, they cannot inherit it. When someone left property to a person who had predeceased them, the bequest would be said to have lapsed. This would have unintended consequences, such as cutting out people who would have inherited the property if the bequest had not failed and others receiving more than the testator intended.

July 21, 2016

What Happens if my Beneficiary Turns Down My Bequest?

by Ettinger Law Firm

It is not a common situation but it does happen. After you pass, your will is entered into probate and your beneficiaries are notified of your bequests but there is a problem: they do not want it. They refuse to take ownership of the property you have left them and in doing so have thrown a wrench in your well laid estate plan.

No Claim to the Bequest

When a beneficiary turns down a bequest this is known legally as a “disclaimer.” There is no requirement under a law that a person who is left assets or property under a will must take it. You cannot force property onto someone else. If a person disclaims a bequest, the person is treated as if they had predeceased the testator and the property will pass onto another beneficiary.