New York Estate Planning Lawyer Blog

March 23, 2012

Estate Planning Lessons from Etta James

Classic female crooner Etta James left the world an indelible collection of timeless musical standards. Beyond her music, estate planning attorneys have explained that since her passing earlier this year, Ms. James has also left the world a wealth of estate planning lessons regarding both the good and bad ways to conduct these financial, legal, and medical preparations. In fact, The Discovery Channel is set to shoot an episode of a series it runs called “The Will” on the lessons to be learned from the Etta James estate case.

Like in so many families, feuding began in Ms. James’ case even before she passed away. Ms. James son, Donto James, and her husband, Artis Mills, began fighting in court over control of the ailing singer’s care last year. Spouses and step-children often engage in these disagreements.

Previous planning efforts by Ms. James named her husband as the one in charge of her personal care and health care. However, interestingly, end of life care was supposed to be made jointly by her husband and two sons. This is a unique approach that, while good-intentioned, is rife with potential complications. As our New York estate planning attorneys would have explained, without a “tie-breaking” mechanism to settle disagreements about such life-ending care, these sorts of split decisions leave the door to in-fighting wide open. Of course it is always hoped that these sorts of situations can be resolved amicably. But the entire purpose of planning for these affairs is to anticipate potential issues and plan for them to avoid fighting, stalling, and legal complications. Clear planning should provide fair, logical, and streamlined decision-making.

March 21, 2012

U.S. Supreme Court Hears Arguments on Benefits for Posthumously Conceived Children

by Ettinger Law Firm

Last week the United States Supreme Court heard arguments in a case that our New York estate planning attorneys know may effect on how some families in unique situations craft estate and inheritance plans to provide for their children in the future.

The case, Astrue v. Capato, revolves around one key question: are children conceived in vitro following their father’s death entitled to survivor benefits. While the issue may seem to apply only to a very small group, many more families are having sperm preserved in order to keep options open down the road. The process is particularly common for families with fathers who have cancer or are in the military.

For example, as explained in a CNN article, the father of the family involved in this particular litigation had his sperm frozen in 2000 after being diagnosed with cancer. He died in 2002. Shortly after his death his wife used the preserved sperm to become pregnant–she ultimately gave birth to twins. After the birth, the mother applied to the Social Security Administration for survivor benefits. The agency denied the claim, sparking the legal claim which is now at the Supreme Court level.

March 19, 2012

Increase in Blended Families Cited For Causing “Uglier” Estate Fights

by Ettinger Law Firm

The world is a different place today than it was in 1950. Several decades ago the vast majority of families were of similar make-up: father, mother, kids, dog, house, and car. Inheritance planning in those situations often followed very predictable patterns. A spouse received the assets after a death, and the children split the remaining assets when the second parent moved on. However, our New York estate planning lawyers know that there is much more complexity these days.

That is true for several reasons. On one hand, the law has changed, with different tax situations, legal tools, long-term care concerns and other realities forcing estate plans to take more into account. In addition, families are much more diverse these days than in the past.

Blended families are quite common, necessitating families take special care to account for their inheritance wishes. “Default” statutory inheritance rules may have been a bit less off-putting several decades ago. However, considering the unique make-up of most families these days, it is incumbent upon local residents not to risk their estate being split via default intestacy rules. As a new USA Today story explains, it is no longer a luxury to have the help of an estate planning lawyer–it is a necessity.

March 15, 2012

Broken Estate Plans May Need to be Fixed

by Ettinger Law Firm

There is a tendency to view estate planning as a static skill and the process of having an estate plan created as a one-time task. Both are misconceptions. While certain basic estate planning principles have held true over the years, new strategies are developed, arguments are made, and legislation is passed which alter what the law is in this area and how it is applied. Similarly, proper estate planning is rarely just a one-time event. Besides accounting for legal changes, the plan must also be modified down the road to account for life changes.

On top of accounting for legal and life changes, when an estate plan for local residents is created poorly the first time, often by those without direct experience in this area of the law, it is often necessary for more seasoned New York estate planning attorneys to “fix” the “broken” plan. The process of correcting or changing parts of an estate plan was discussed last week by Forbes.

The story noted that changing items in revocable arrangements (wills and revocable trusts) is usually pretty straightforward–so long as the settler or testator is still alive and competent. Altering a will or trust is much more difficult after that time. Considering that many estate planning documents get placed into a safe place and only examined after death, many are often challenged to “fix” the plan at the very moment when it is supposed to be put into action. This process is very case specific, and so it is hard to make generalizations about legal ways to correct potential problems in irrevocable planning documents. However, some basic methods of doing so come up time and again.

March 13, 2012

New York Estate Planning Attorney on Funding of Trusts

by Ettinger Law Firm

This weekend the Times Herald-Record published an article written by our New York elder law estate planning attorney, Bonnie Kraham, discussing a basic estate planning concept–the proper funding of trusts. There is often a misunderstanding among some residents about the effect of signing the trust documents. Signing the trust documents is a necessary but not sufficient way to ensure the overall estate planning process works as intended. It is also crucial to actually transfer assets into the trust. This does not happen automatically. Transferring assets into a trust–known as “funding” the trust–usually requires changing title of those assets to the name of the trust. This process should also involve identification of the trustee and date of the trust’s establishment.

Of course, the delicate nature of the funding process makes it imperative that it be done in conjunction with one’s estate planning lawyer. In this latest article Attorney Kraham discusses some of the ways that funding occurs for various types of assets. For example, real estate is one of the most common assets that area residents might have and want to protect by putting into a trust. To transfer real estate into a trust one must sign a new deed in the name of the trust. That deed must be recorded at the county clerk’s office. Considering that one’s home is often the largest single asset that a community member has, understanding this process and performing it properly is crucial.

Many local residents may also have assets like stocks, bonds, and mutual funds that should be placed in a trust. Ownership changes for these assets usually require filling out certain paperwork providing by those in charge of managing the asset–a broker, investment company, or transfer agent. Similarly, savings bond transfers require filling out a reissue form from the Federal Reserve Bank of New York. Moving a brokerage account into a trust is a bit more extensive. A trust account application must be completed along with an account transfer request. The transfer request essentially authorizes the broker to close the account and transfer the securities into the new trust. To transfer a stock certificate one must fill out a “stock power” and W-9 form. Those items must then be mailed with the original stock certificates to the “transfer agent” of the stock company.

March 9, 2012

DOMA Developments May Have Implications for Married Same-Sex New York Couples

by Ettinger Law Firm

The Defense of Marriage Act (DOMA) is a federal law passed in 1996 that defines marriage for federal purposes as only between one man and one woman. As our New York estate planning lawyers have often discussed, this means that same-sex couples married in our state are still not considered married for federal purposes. This has serious implications for tax preparation, estate planning, and a host of other concerns facing these residents. DOMA prevents married individuals from filing joint federal tax returns, receiving Social Security benefits, or having tax-free inheritances.

Many advocates on all sides of the aisle are working to overturn the law. Bills have been advanced in Congress which would repeal DOMA. However, with the current partisan split it appears unlikely that these legislative measures are likely to pass anytime soon. But that does not mean DOMA is here to stay. Most of the recent action on the issue has taken place in the courts. Several federal lawsuits have been filed which challenge the constitutionality of the legislation. President Obama has refused to defend the measure, and so the law is currently being defended under the auspices of the Republican leadership in the U.S. of Representatives.

Last month a U.S. District Court judge in one of those cases found that DOMA (or at least section 3 of the law) violates the equal protection clause of the U.S. Constitution. The case is being appealed to the federal appellate court. This particular ruling relates only to one provision of the law as applied to one couple. However, it is a clear indicator that the entirety of DOMA may one day–perhaps soon–be found unconstitutional.

March 7, 2012

Make Plans for Dividing Up or Preserving Collections in Estate Plan

by Ettinger Law Firm

One important part of the elder law estate planning process involves working out inheritance details. This comes with unique concerns for each family as various assets have different meanings for each individual, far beyond their market-value. Accounting for these emotional attachments is a delicate process that should not be done hastily. For example, one valuable that may present unique inheritance challenges are collections. Our New York estate planning lawyers appreciate that many residents have spent years building collections–from holiday villages and marbles to art–and have strong feelings about how they’d like to see the valuables handled after they are gone. A recent story in The Ledger argues that planning is paramount.

Collections, like other art and antique valuables, can present somewhat complex inheritance concerns. Large collections can be hard to physically manage, have difficult value estimates, and still may have tax implications. On top of all of that, collections are often laden with emotional value–some family members may love the collections, others may not. But it may not even be as simple as passing it on to one who cares for the objects. Some children may have no desire for the objects beforehand but may become emotionally attached after their parent’s passing because of the way that the collections helps them remember their loved one. In this way, family fights over what to do with collections–particularly large ones that are hard to manage–can be common.

For local residents, avoiding the potential inheritance mess comes down to one thing: have a specific New York inheritance plan in place. The planning process will involve asking tough questions about the best options for the future.

March 5, 2012

New Survey Results: More than Half of Adult Americans Still Without a Will

by Ettinger Law Firm

The Chicago Tribune published a story this weekend on new survey results which indicate, yet again, that many residents are taking big risks with a lack of even basic estate planning. A new Harris Interactive phone survey has found that more than half of adults still do not have a will, let along more sophisticated and helpful planning tools like trusts. The numbers are much starker for young residents. A staggering 92% of those under thirty five years old admit that they have not conducted any estate planning at all.

Interestingly, these figures actually represent slight increases in the number of residents taking the time to ensure estate and tax planning. However, there obviously remains much room for improvement. Each New York estate planning attorney at our firm continues to share information with local community members on the necessity of this planning, regardless of age or income. There is simply too much at risk to do otherwise. Those risks are maximized when one has children, substantial assets, or other special circumstances.

At the very least, all community members should have a will, durable power of attorney, and healthcare proxy. These basic documents ensure that assets are distributed as desired, financial decisions can be made in case of incapacitation, and a specific individual is named to make medical decisions on one’s behalf if necessary.

March 1, 2012

Rumors About the End of Living Trusts Have Been Greatly Exaggerated

by Ettinger Law Firm

A small minority of misguided observers might suggest that using estate planning tools like revocable living trusts are becoming less necessary in recent years because of increases in the federal estate tax exclusionary amount. According to this line of thinking, use of the trust was limited solely to avoiding estate taxes–taxes on the assets given as part of an inheritance. Because community members can currently pass on up to $5 million individually without triggering the tax, there may be a mistaken assumption that those with fewer assets do not have much need for trusts. Of course, our New York trust lawyers work with thousands of clients who are living proof that this suggestion is a drastic oversimplification of the use of these legal tools.

An article last week in LifeHealth News made the same point, reminding readers of the various benefits that trusts provide beyond estate tax savings. Just two of the many benefits include: (1) avoiding probate; (2) allowing flexible inheritance arrangements

Perhaps most importantly, use of these trusts allows families to avoid the time-consuming, stressful probate process that is required when only a will is used. The probate process is court supervised, which means that judges ultimately decide how everything shakes out. Depending on the circumstances, the judge’s final decision might be far different than what the family thinks appropriate or even what the one who passed on might have wished. Using trusts and keeping the process out of the courts is a huge benefit for those who want to ensure that their wishes are actually carried out in the most straight-forward manner possible.

February 27, 2012

Special Needs Trusts for New York Families

by Ettinger Law Firm

Special needs trusts are helpful legal tools that allow parents and grandparents to leave behind assets to loved ones with special needs without damaging the beneficiary’s ability to receive SSI and Medicaid benefits. Our New York estate planning attorneys know that in the past the best strategy for these families was often to disinherit relatives with disabilities. Otherwise, assets might be given to the individual which would disqualify them from receive certain federal benefits. Of course this seems a perverse effect and unfair effect for those with disabilities. The special needs trust fixes that. The trust is a device that allows a resident with special needs to receive an inheritance and keep their benefits, all without the state actually receiving less than it likely would otherwise. The trust funds can be used to pay for a wide range of services for the individual like clothing, education, entertainment, household goods, and similar costs. Families have much to gain from taking advantage of this tool.

An article this weekend from Lake County News explored these trusts, distinguishing between the various types of special needs trusts. For example, testamentary trusts and stand-alone special needs trusts are compared. Testamentary trusts are those which are established at the death of the benefactor. Conversely, stand-alone trusts are created while the one passing on the assets is still alive.

One key difference between these trusts is that the stand-alone special needs trust can receive assets from different individuals. Some families may have a few parties that want to help provide for their loved one with special needs. The stand-alone trust, because it is not tied to any single parties’ will or trust, allows for these multiple benefactors. In addition, accessing the funds in the trust can be somewhat easier in a stand-alone special needs trust. That is because the funds are made available to the beneficiary in the stand-alone trust instantly upon the death of the benefactor. Conversely, in a testamentary trust, the assets must first need to be transferred into the trust following the benefactor’s passing.