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Articles Tagged with white plains estate planning

While Americans have definitely paid more attention to estate planning in the last several years, not enough are yet taking estate planning as seriously as they should. According to WealthManagement.com citing a survey from Caring.com, only slightly over 40 percent of Americans have estate planning documents in place. The number of those individuals that have a healthcare power of attorney document in place is even lower. It is critical for all Americans to consider comprehensive estate planning as an important part of aging and responsible financial planning. It’s also important to remember that effective estate planning doesn’t end at the creation of an estate plan, but also includes modifying that plan as your individual circumstances may dictate.

Planning in Politically Volatile Times

The last year has seen a great deal of political turmoil both here in the United States and in countries around the world. Regardless of how you may feel about these events, they may have a serious impact on your estate planning. One such event is the United Kingdom’s successful referendum to leave the European Union. Many retirement investment accounts were affected or even frozen because of the decision to leave the European Union, and many investors are still trying to figure out how to cope with these changes. If you have assets that could be affected by these types of political changes, it is important to work with a financial planner as well as an estate planning attorney to make sure that your estate plan accounts for these changes.

There can be a lot of confusing terms involved in comprehensive estate planning. Estate plans are meant to be individual and flexible, and a New York estate planning attorney can provide you with a variety of options that help you create a plan that works for you and your wishes. One option that an estate planning attorney might present is a revocable trust, sometimes referred to as a living trust or a revocable living trust. The following provides some basic information about what these trusts are and how they operate.

What is a revocable trust?

Trusts are agreements between you and a third party in which you allow the third party, often referred to as a trustee, to hold assets for your beneficiaries. There are a variety of different kinds of trusts that each have different nuances that may work best for you. However, revocable trusts are often used in estate planning. A revocable trust is a trust you can create during your lifetime that may help you manage and protect your assets if you become ill or incapacitated. The American Bar Association notes that you may name yourself as trustee while also selecting a co-trustee, should you choose to do so. As the name states, revocable trusts can usually be created to be revoked or changed as you see fit. Revocable trusts should not be confused with irrevocable trusts which have distinct characteristics, especially related to taxes.

In a recent blog, we discussed pet owner’s options for naming their pets as beneficiaries in their wills. Another option for pet owners to provider for their pet after death is creating a pet trust. Pet trusts offer a wide variety of options to provide for the pet and can be used in conjunction with a will. Pet trusts are created during the grantor, in this case the pet owner’s, life, and can take effect immediately, or upon death of the grantor.

Unlike wills which leave interpreting some provisions up to the discretion of probate court, trusts are legally enforceable agreements that are carried out according to the provisions of the document. All the traditional rules of trust administration will be in effect for a pet trust as they are for any other trust. There will be a trustee named which will carry out the best interests of the maker of the trust and will be able to enforce the terms of the trust in court if necessary.

One feature of a pet trust that is distinct are the caretaking options. When establishing a pet trust, the maker can name who will take care of their pet in the event of incapacitation, who will have immediate custody upon your death, and how the animal is cared for.

Properly planning and structuring of charitable contributions and gifts can be a huge part of the overall estate plan. There are good and bad ways to give. Ensure that your gift is properly funded and distributed per your wishes by planning ahead of time. This planning may include using charitable remainder trusts.

Charitable Remainder Trust Basics

This estate planning tool is often considered a “split interest trust” which allows both the owner and the charity to benefit. Once a charitable remainder trust (CRT) is drafted and assets are transferred into the trust, the owner will begin receiving income for life from the trust. Upon the death of the owner of the CRT, the remaining trust property passes directly to the charity.

It may sound like common sense, but the older you are the longer you’re going to live. According to the Social Security Administration, men who reach age 65 can expect to live until age 84 and women who reach age 65 can expect to live until nearly 87. People are living longer lives and many Americans are living twenty years beyond their retirement. This increased longevity forces many people to change the way they view their later years.

Requiring Care

According to the U.S. Department of Health and Human Services, nearly seventy percent of people turning age 65 can expect to require some form of long-term care during their lives. Not only is the chance of needing long-term care high, many people are requiring care for a longer duration. This increased benefit duration affects women more than men. Women tend to need 3.7 years of care, on average, while men require only 2.2 years. Almost twenty percent of seniors will need care for more than five years.

Many single mothers often overlook estate planning. It can be easy to put off these important decisions. Life is busy and making plans for your demise is something that no one wants to make time for. Well laid estate plans are the greatest possible gift you can leave your family.

Guardians

According to the U.S. Census Department, 81.7 percent of custodial parents are mothers. For single mothers, planning for the care of their children is one of the primary concerns of their estate plan. While no mother wants to even consider what will happen to their children if they aren’t around to raise them, not having control over that decision is even more alarming.

There are many ways to pass on your assets without having to go through probate. Any account or policy with a beneficiary designation, payable on death clauses or joint ownership with rights of survivorship will not be considered to be a part of a probate estate. Those assets will pass to the person designated or the other joint owner at the time of your death. Despite being handy estate planning tools that help assure that the assets in question are never out of reach or frozen, many people fail to understand the nuances and rights associated with such designations and it is this failure that can frustrate and cause unintended consequences when dealing with a person’s estate.

Only After You Pass

Many people are familiar with a beneficiary designation on a life insurance policy. After you pass, the insurance company gives the money from the policy directly to your beneficiary avoiding probate. Similar to a beneficiary designation is what is called the payable on death clause (POD). At the time of your death, your designated beneficiary can claim the assets in the account by showing a death certificate, similar to claiming a life insurance policy. The designated beneficiary has no claim to the assets in the account while you are alive and cannot withdraw or otherwise dispose of them.

One of the many goals of estate planning is to limit the amount of fighting that will occur once a person passes on, and there are many ways to achieve that goal. Often this involves making sure that all the proper requirements are observed when executing documents, careful drafting of trusts and keeping estate planning documents’ terms clear and concise. None of these tools however serve as a disincentive to a disgruntled family member who feel that they were unjustly treated as beneficiary. For that purpose, many New York estate planners may turn to the ‘No Contest’ or ‘In Terrorem’ clause.

Risk All, Lose All…

A ‘no contest’ clause in a New York will states that a beneficiary who unsuccessfully challenges the validity of the will is prevented from inheriting under the will. Testators include these clauses in their wills in order to dissuade beneficiaries from taking action against the estate, the idea being that no one will want to risk losing out on their inheritance by risking an unsuccessful challenge.

COMMON PROBLEM

There is much talk lately of how to deal with email, facebook, twitter accounts, et cetera of people who pass away.  For those of us who have friends or family who passed away and see their facebook account send a reminder to all of their friends on their birthday or some other event, it is nothing short of strange, even ery to see their former friend live into perpetuity in the digital realm.  Many people use it as an opportunity to post memories and give a public shout out to the living that their friend or family is still alive in their heart.  Others find the matter to be a painful memory.  

Facebook instituted a policy whereby a legacy contact can delete your account or transition the account to a memorialized account, whereby your name will be changed to a remembered account (more properly a “remembering account“).  Currently, New York does not allow an executor, or anyone else for that matter, to access the emails, online drives and various other digital accounts owned by a person after they pass away.  If it was private while the person was alive, shouldn’t it be alive after they pass away?  Yet, this is a rapidly evolving area of the law, with private corporations creating their own rules in the absence of legislative pronouncements to the contrary.   In the 2012-2013 legislative session, Representative M. Kearns introduced a bill that would address the issue of access to such accounts by an executor.

BEST LAID PLANS DO NOT ALWAYS WORK OUT

A case with an interesting factual background came out of Texas recently. While it was based on Texas law and the case is binding in only Texas, the legal principles discussed by the Court are equally applicable to New York or any other jurisdiction for that matter. More importantly, the set of events that gave rise to the case could happen anywhere. It just so happened that it occured in Texas rather than New York or somewhere else. The Texas Court of Appeals case of Gordon v. Gordon revolved around a trust that took ownership of a specific peace of real estate property and how that transaction related to a will signed subsequent to the trust. More specifically, the Court determined that the act of creating and endorsing a will by the testator subsequent to the transfer of the real estate did not overturn or cancel the previous transfer of the real estate to the trust. The will, however, contained language that by endorsing the will, the testator supersedes all previous transactions indicated in the trust documents, such as annuities or certificates of deposit. It never mentioned the real estate.

In 2009 (Mother) Beverly Gordon and (Father) Patrick Gordon executed a trust document which they funded with personal property and real estate. The very terms of the trust indicated that the trust could only be revoked by either Father or Mother and only by following the specific set of instructions laid out in the trust document, namely by signing and delivering a letter to the trustee. The letter had to indicate that they individually or jointly are going to cancel or revoke the trust. The trust further provided that upon the death of either of them the trust become irrevocable. They funded the trust with personal property and real estate. Soon thereafter, their son John sought to reduce the risk of an estate battle by creating a will that specifically stated that the parties want to cancel the terms of the trust. Neither Mr. Gordon nor Mrs. Gordon did anything to transfer their personal property or real estate out of the trust. Moreover, John did not act to convince his parents to move the property out of the trust. Mr. Gordon passed away within a year of signing the new will.

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