Articles Tagged with brooklyn estate planning attorney

When people begin the process of estate planning or take time to review their existing estate plan, they have many tax considerations to think about. How they distribute their assets will determine what taxes, if any, will apply to their estate. They may consider creating a trust for their children, they might want to “gift” some of their assets to take advantage of evolving tax law, and/or they may choose to donate some of their assets to charity. If you are considering donating real estate to charity as part of your estate plan, it is important to be aware of the possible tax consequences doing so might have.

Charities vs. Foundations

Both public charities and private foundations can be nonprofit organizations if they have applied for and been granted 501(c)(3) status, which means that contributions to such organizations can qualify for tax deductions. However, when real estate is involved, the tax deduction for a donation can vary depending on what type of organization it is.

With a new year comes many new changes. Now that we are already almost a quarter of the way into 2017, it’s important to look at the many options you have in the coming year to create a more comprehensive and up-to-date estate plan. Recently, we have written about ways to take care of your estate plan and important factors to keep in mind when making estate planning decisions. Below are some specific areas that you may want to consider regarding estate planning throughout the year.

  1. Review Documentation

Are all your documents complete? Are they signed where they need to be signed and placed in a secure location? An experienced estate planning attorney will review your estate planning documents for accuracy and to ensure they comply with the law, but you should be sure any additional documents – like insurance forms and beneficiary designations – are complete.

Estate planning is vital for all people wishing to have control over the distribution of their assets following their death. Women, in particular, should take time to plan their estates. In the U.S., women control nearly 40% of the nation’s investible assets and nearly half of those assets are managed solely by women.

Surviving Spouses

Many women outlive their husbands by a number of years. Outliving your partner tends to mean that you inherit their estate. Most spouses will be sole beneficiaries of each other’s’ estates. This means that the surviving spouse will be in full control over the final disposition of the assets. If your spouse didn’t make plans and you are aware of special instructions or requests they would have wanted, it is your job to make those plans now. For instance: if your spouse had children prior to your marriage and wanted them to have an inheritance but didn’t plan, it is now up to you to decide whether or not to include those wishes in your own estate plan.

SEEMINGLY COMPLICATED

The Generation skipping transfer tax seems complicated to understand and it absolutely should only be dealt with by a seasoned professional, but there are some hallmarks that are present in each such transaction so that individual taxpayers know when the tax will apply and can follow a general conversation about the topic. To begin with, the name may seem a bit confusing at first. The skipping that the name refers to is the tax that would (should according to some lawmakers and IRS officials no doubt) be incurred when a second generation passes on the inherited asset.

The generation skipping transfer tax was first introduced in 1976 to avoid what Congress saw as an avoidance of the estate tax by wealthy families that could afford to hire attorneys to create complicated, long term trusts that avoided the estate tax. The net result was that less wealthy, middle class families were paying a disproportionate share of the estate taxes; in other words, those who could least afford it were paying more of the tax. The generation skipping transfer tax in its current incarnation creates tax liability anytime a transfer of an asset or money is transferred more than one generation from the grantor or to someone who is at least 37.5 years younger.

MONEY LEFT IN IRA AT TIME OF PASSING NOT SUBJECT TO NORMAL IRA RULES

This blog previously discussed the Supreme Court case of Clark v. Rameker and the legal implications of money remaining in an IRA at death, that is in turn left to the heirs of an estate. Putting aside the potential tax implications, if any, with passing on an account with an easily ascertainable value, passing on an IRA can strip the IRA of its legal protections, such keeping it from the reach of judgment creditors. It should be noted that this discussion does not include leaving money in an IRA to a spouse, which the law allows special treatment for, by allowing the spouse to roll it over into a regular IRA account upon the death of the owner of the IRA and treat it as if it were his/her own IRA.

With respect to all other types of heirs, with an inherited IRA, the owner can withdraw from the IRA prior to reaching the age of 59 and one half years old. If the IRA is not inherited the owner would normally face a ten percent penalty if did this. In addition, the owner of an inherited IRA must withdraw the entire balance within five years of the original owner’s passing or take annual minimum distributions, allowing the bulk of the money to sit in the account and grow tax free. The money is only taxed to the recipient upon withdrawal. Most importantly, the owner cannot add funds to the IRA account. To maintain certain protections, such as keeping the money in the IRA out of the hands of judgment creditors and to minimize the tax liability, it may be wise for the testator to leave the money in the IRA to an IRA trust or conduit trust.

ANCILLARY PROBATE

It is not an uncommon scenario for a middle class family of even modest means to own a vacation home in another state. For those of us who love to ski, hike and explore, mother nature’s wonders on horseback, Vermont and Wyoming may be your choice. For those of us who can never tire of beaches, the ocean and sun, California, Florida or maybe even the Carolinas are for you. Even more of us own timeshares and similar properties throughout the country.

Most of us never stop to think about what it takes to insure that these properties pass via a will without complication. Whenever a person lives, or, to couch it in lawyer lingo “domicile” in a state (and own the vast majority of their property in that state) their estate should go through probate in that location. The vacation property in the other state, however, will likely not pass as desired and outlined in the decedent’s will without opening an independent probate proceeding in that state. This secondary proceeding to insure the proper passing of the property in that state is commonly called “ancillary probate“.

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