fishkill estate planning

Choosing the Right Estate Planning Attorney for You

Published on: November 18, 2016 | by Ettinger Law Firm

Planning your estate is an important step in ensuring that you, your loved ones, and your estate will be taken care of in the event of your incapacity or death. A few documents can determine the type of medical attention you receive, who handles your financial matters, and how your estate is distributed after your passing. Choosing a knowledgeable and experienced professional to guide you through the estate planning process can protect your family from trouble in the future.

A Relationship Built on Trust

Choosing a legal professional can be difficult. One of the most important things to consider is trust. Your estate planning attorney should be someone that you are comfortable with. In order to fully plan out your estate, you will be faced with a number of difficult questions and what-if scenarios, such as “who will care for your children” and “do you wish to be kept alive by artificial means”. Hiring an attorney you feel comfortable with who is able to talk through these situations with you can make the process much simpler and less stressful. In many cases, the attorney who drafts your estate planning documents will also be working with your loved ones to ensure that your wishes are carried out after your death. Choosing someone your trust who is aware of your wishes can make this process easier.

Back to Basics: How to Include Health Care in Your Estate Plan

Published on: October 24, 2016 | by Ettinger Law Firm

For people who reach age 65, the odds of needing long-term care benefits during their lifetime are nearly 70 percent. People are living longer and in turn needing care in their old age. On average men require 2.2 years worth of care and women require 3.7 years. Preparing for this level of care and any other type of medical care you may receive requires forethought and careful planning.

Appointing a Health Care Agent

We’ve previously discussed in this blog New York’s Family Health Care Decisions Act and the appointment of a patient’s family member or close friend to act as a surrogate decision maker for a patient who has become incapacitated. This act allows close relatives to make decisions even if the patient had never given them decision making power.

The Insolvent New York Estate

Published on: October 19, 2016 | by Ettinger Law Firm

The legal entity that owns and controls a person’s property after they die is known as an estate. The person who leaves behind an estate is called the decedent. It is customary for the decedent to appoint someone to administer the estate and act as the executor of the estate in his or her last will and testament.

The executor of the estate fulfills many roles and responsibilities for the estate throughout the probate process. One of the most important duties that an executor performs is to pay off any final expenses that the decedent incurred as well as to pay off any debts and claims against the estate. New York Surrogate’s Court Procedure Act dictates what debts and expenses should be paid out of a decedent’s estate first. However, sometimes it is not possible for an estate to satisfy all of its debts and obligations.

The Insolvent Estate

Future Federal Estate Tax May Look Different Depending On Our Next President

Published on: September 25, 2016 | by Ettinger Law Firm

The first presidential debate of 2016 was the most watched debate in United States’ history. The two candidates hold very different positions from each other and no more so than on the topic of the federal estate tax. The federal estate tax has a very checkered history in American politics, often serving as a talking point between the two biggest parties in Congress to emphasize how different each party is from the other and what purpose the federal estate tax should serve. No matter which candidate wins the office of the president, the federal estate tax is likely to change in the future.

Up and Down and Sometimes Not At All

Of course if any changes are made to the federal estate tax, it will be in line with its history. The only constant of the federal estate tax is that it is constantly changing. The federal estate tax was an early part of our nation’s history, but was repealed and implemented again over the decades. It was not until 1916 that the modern federal estate tax takes root and has been with us ever since.

The Rapidly Disappearing Inheritance

Published on: August 15, 2016 | by Ettinger Law Firm

Beneficiaries Often Treat An Inheritance As A Windfall And Spend It As Such

You spend your entire life working hard, accumulating wealth and you want to pass it onto your children, to provide for them and their families after you have passed. But will they appreciate your life’s earnings or will they blow through it without a second thought? Unfortunately, more likely than not any inheritance that you leave behind will most likely be spent much faster than it was earned, and the statistics are alarming.

“From shirtsleeves to shirtsleeves in three generations” the old saying goes and the research shows that the sentiment is true. One third of people who received an inheritance had negative savings within two years. Even if the wealth does last past the first generation to receive it, 70 percent of inheritances are completely gone by the end of the second generation.

Divorce: It’s Influence on Your Estate Planning

Published on: August 11, 2016 | by Ettinger Law Firm

Making a will can be a time consuming process that involves the interest of a potentially large amount of people. One of these interests is that of the testator’s spouse. A surviving spouse is generally presumed to be the first heir to which asset distribution goes to in the event property or assets are not accounted for in the will. However, not all marriages work out and when this happens, the terms of distribution in your will can be greatly affected, depending on the state you live in.

New York Law For Wills

There are three scenarios for will distribution to a former spouse in the event of divorce: the divorce automatically revokes the entire will, it only revokes the testamentary provisions making gifts to your former spouse, or it does not affect your will at all. In New York, upon the final divorce decree, all provisions or bequests to your former spouse are revoked, if the will is still valid. If you are still legally married but your spouse has abandoned you up until the time of your passing, the court will also view this the same way as divorce, and disinherit the spouse.

Planning For Your Fluffiest Assets

Published on: August 1, 2016 | 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.

Back to Basics: Deciding Who Will Inherit from Your Estate

Published on: June 30, 2016 | by Ettinger Law Firm

A person planning their estate for the first time is confronted with a lot of uncomfortable questions that they most likely have never had to address. There are medical decisions to be made, executors and trustees to be chosen and appointed, burial instructions to spell out, and perhaps most importantly for some, deciding who will inherit from you when you pass on. This question can often be a prickly subject amongst families, with spouses disagreeing and children being angered by the ultimate decisions.

Someone Will Always Be Upset

There are many different strategies that testators, those preparing their will, employ in deciding who will inherit from their estate and how much they will be inheriting. Many parents are often uncomfortable with leaving their children unequal amounts of inheritance. Often testators believe that if they leave an unequal amount amongst the children that it may indicate that they loved or preferred one child over the others.

NEW IRS FORM TO REPORT BASIS

Published on: May 7, 2016 | by Ettinger Law Firm

FURTHER CHANGES MAY BE NEEDED

When a person receives an asset via the probate process, the transaction must be reported to the IRS, even if it does not trigger any tax liability as to the estate or the recipient. This is because the IRS needs to track the basis of the asset to determine any net capital gains or other calculations for tax liability purposes. Price minus basis equals profit is the rough calculation to determine how much a person realized in a sale, which in turn determines the capital gain on the sale of the asset.

There is a tension built into the system whereby the executor wants to assign the lowest possible value to the asset, so as to keep the value of the estate low, while the beneficiary wants to have the highest possible value assigned so when they dispose of the asset in the future it will incur less tax liability. The IRS sought to address this tension when they lobbied Congress create 26 U.S.C. § 6035, which in turn enabled them to create the new IRS form 8971. Form 8971 requires an executor to notify the IRS which beneficiary receives what and the value of the asset. Part of the same legislation also created 26 U.S.C. § 1014 which requires beneficiaries to use the value of the asset at the date of death for purposes of reporting basis. This value cannot be greater than the amount that the executor reported on the estate tax return.

CREDITORS OF AN ESTATE

Published on: May 5, 2016 | by Ettinger Law Firm

ORDER OF PAYMENT

It should not be a surprise to anyone that when someone passes away, their estate must pay for all legally binding outstanding debt owed by the decedent just prior to passing. New York as well as just about every other jurisdiction has laws that address how the estate puts creditors on notice that they must file a claim, but how the creditor must go about making a claim and getting paid from the estate. As in other areas of the law, there is an order and priority to the claims that can be paid. The administrator has a fiduciary obligation to the heirs to distribute the estate to the terms of the will. That fiduciary obligation also extends to creditors of the estate. The payment of expenses, ensuring that all disbursements are properly documented and all taxes and fees are paid are core responsibilities of the estate administrator.

To do this, the estate administrator must first understand what assets the deceased owned, the value of those assets, which in and of itself costs money. When an estate is insolvent, the creditors will surely examine every expenditure by the administrator to determine if they acted appropriately. On the other side of the ledger, the administrator must determine if the claims are valid or overpriced and inflated. The estate administrator has an obligation to dispute all claims, except properly owed, legally enforceable obligations. Since the final accounting by the estate administrator presupposes that all parties are already involved in litigation and there is a Court already scrutinizing all credits and debits, the likelihood that a party will enforce their rights, or, more specifically, object to the final accounting, is all the much greater. The balancing act that the estate administrator must engage in can be a complicated endeavor.