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Estate Planning

Saturday, September 19, 2015

Choosing an Executor Under Your Will

One of the most important decisions clients need to make, when preparing their will, is who to choose as Executor of their estate.  An Executor is the person who will be responsible for collecting assets, paying taxes and other expenses, and then distributing what is left.  If there is a home, the Executor will also take care of selling it, if that is the wish of the testator (the person making the will).  The Executor's role, essentially, is to carry out the stated wishes of the testator.

Usually, if there is a spouse, the testator's spouse is the primary Executor.  If one has children, they are usually next in line.  It is usually ill-advised to have more than two Executors acting at the same time, since it is very cumbersome and inefficient to have more than two people having to act together.  If a client has two children, it is  difficult to choose one over the other, unless one of the children is disabled, irresponsible, or immature; therefore, it is common to name both children.  When one has more than two children, it is imperative that one child be designated the primary, with the others as back-up.  While many parents choose based on age order, it is usually best to choose the child who is most responsible and least likely to cause or exacerbate family tensions. 

 


Friday, September 4, 2015

Making Gifts in Order to Avoid Estate Tax

 

Federal law allows one to gift up to $14,000 per year to as many individuals as desired, without any adverse gift tax consequences and without the filing of a gift tax return.  Certainly, this is a very effective way of reducing one's estate and, therefore, reducing or even eliminating the estate tax.  In addition to this annual gift tax exclusion, one can pay medical and educational expenses for anyone, in an unlimited amounts, provided the payment goes directly to the institution. Lastly, these annual gifts can be used to fund a 529 college plan for children or grandchildren, and you can even make these annual contributions for up to 5 years in advance.

Surely, gift giving can be quite effective in reducing one's estate, assuming the donor is comfortable with this.  One caveat, however, is that New York law was changed relatively recently so that  the value of any gifts made within three years of death falls back into the taxable estate, for New York State estate tax purposes.  Moreover, these annual gifts may trigger a look-back period for medicaid eligibility. 

 

 

 

 

IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by your or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.

 


Wednesday, August 19, 2015

Investing In Long-Term Care Insurance

 

Clients are often reluctant  to spend money to purchase long-term health care insurance.  While that is understandable, if one can afford the cost and is healthy enough to obtain the insurance, it is indeed a very wise investment. With nursing homes currently costing in excess of $10,000 per month in the metropolitan New York area, it is difficult for all but the very wealthy to continue to pay that cost out-of-pocket.  The only option, besides paying for the care out of one's own funds, is to use long-term care insurance, or to divest oneself of essentially all of one's assets. If there is a spouse at home, the cost of such care can severely impact the lifestyle of that spouse.   Having long-term care insurance can certainly alleviate the financial and emotional pressure caused by the need for long-term care.


Thursday, July 16, 2015

The Differences Between a Health Care Proxy and Living Will

 

Clients often inquire about health care proxies and living wills and wonder what the difference is between the two, if any.  A health care proxy is simply a document where you appoint someone to make health care decisions if you become incapable of making them on your own.   These decisions are usually general in nature and include items such as surgery, blood transfusions, and other treatments.  Ordinarily, unless combined with a living will in the same document, the health care proxy does not permit the agent to make end-of-life decisions.   A living will is usually a free-standing document which states to the world one's wishes regarding life and death decisions, and does not usually give the right to make these decisions to anyone in particular.  Of course, the health care proxy and living will can be combined in one document, in order to give the agent the authority to make end-of-life decisions, in which event the decision is usually at the discretion of the agent.


Sunday, July 5, 2015

Important Estate Planning Considerations For Dual Residents

   

               It is quite common for people to have two homes, usually one in New York and one in Florida or some other southern state.  While a will prepared in one state is usually valid in all other states, if done in accordance with the law of one's residency, that is not the case with health care directives.  Each state usually has their own laws and forms regarding  health care proxies and living wills, and is is quite common for institutions not to honor or recognize forms prepared in another state.  This is usually also the case with power of attorney documents, since they are state-specific.  It is highly recommended, then, if one spends a good deal of time in another state, to have a second set of these documents prepared by an attorney licensed to practice law in that state.

 

 

 

 

IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by your or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.

 

 

                                     


Sunday, May 31, 2015

Guardianship of Disabled Children

If you have a child who suffers from a type of disability which makes it impossible for the child to make his/her own decisions, then you will need to obtain legal guardianship of that child once the child nears the age of 18.   At eighteen years old, a child is considered an adult and, so, the parent is not able to make decisions for the child unless the parent has been appointed the legal guardian.  Of course, the guardianship can be done after the child's 18th birthday, as long as it is clear that the disability began before the age of majority.

   New York has made it relatively easy for the parents of disabled children to become the legal guardians.  It is accomplished through an Article 17A proceeding, and is done through the Surrogates Court.  This is a simpler, less expensive procedure that is specifically for disabled children.  There are several forms required to be filed with the Court and then a hearing date is set when the parents and child appear personally.  One of the many advantages of the procedure is that the parents can list other family members or persons to step in as legal guardian in the event they become unavailable. 

   Guardianship will permit the parent (or other guardian) to make all decisions for the child, including health care decisions, and to manage the child's income and assets, if any.  While the proceeding can be done without an attorney, it is highly recommended that a lawyer experienced in handling these proceedings be retained for this purpose.


Thursday, May 14, 2015

Long Term Health Care Planning: How To Protect Your Home

                                 

It is a well-known fact that nursing care, whether rendered at home or in a nursing facility, is extremely expensive. Even if one possesses substantial assets, those assets will be eroded quickly as a result of spiraling health care costs.  Often, the most significant asset owned by the person needing such care is the family home.  Therefore, it is important to take steps to ensure its protection.

A common method of financing long-term health care costs is the utilization of benefits available under the federally funded Medicaid program. Unfortunately, in order to qualify for benefits, the value of the assets which you own (including your residence) must be minimal.

A properly drafted irrevocable trust can preserve your home, and at the same time, avoid adverse gift tax and capital gains tax consequences.  It can also provide you with a great deal of flexibility and some degree of control. For example, the trust can be designed to provide you and your spouse with the right to reside in the home for the remainder of your lives.  If you later decide you want to move, you can require the trustee to sell the home and either buy another home in its place or invest the proceeds of the sale in order to provide you with income.  Lastly, such a trust can provide for disposition of the home upon your death without the necessity of your heirs going through probate.

 

 

 

IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by your or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.


Saturday, April 18, 2015

Planning For When Your Child Attains The Age Of Majority


Parents are usually relieved when their child turns eighteen (18) years old. One reason is that they no longer need to worry about having a guardian for that child in the event something happens to the parent(s).  By the same token, however, once the child becomes an adult under the law, the parent may experience difficulties in making medical and financial decisions for the child, and even in trying to obtain information regarding the child.  It is essential, then, for the parent to have a health care proxy, living will and power of attorney prepared for the child.  These documents need to be properly executed, thus giving the parent the ability to make health care decisions and assist with financial matters, notwithstanding the fact that the child is now an adult under the law.


Saturday, March 14, 2015

The Importance of Establishing A Supplemental Needs Trust

                         

                       It is extremely important for the parents of a child with special needs to embark on estate planning early on in the child’s life. First, in order to permit the child to collect government benefits, assets should not be held in the child’s name.  Perhaps more importantly, the parents should establish a special needs trust, to enable them to leave monies to their child upon their death without jeopardizing those benefits.  The monies in the trust will also be available to the trustee in order to enhance the quality of the child’s life.  While many parents expect that their other family members will look after the special needs child, financially and otherwise, there can be adverse tax and other consequences if they provide financial assistance without the benefit of such a trust.

 

 

 

 

 

 

 

 

 

 

 

 

 

IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by your or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.


Saturday, February 28, 2015

Protecting Inherited and Gifted Assets in a Divorce

 

In New York, as in many other states, gifted and inherited assets are considered “separate” property for matrimonial purposes.  Essentially, this means that you need not share those assets with your spouse in the event of divorce.  However, it is extremely important that you keep those assets in your own name, and do not use them for marital purposes, mingle them with other assets, or add your spouse’s names to the titling of those assets.  If you do, they lose their separate character and are subject to equitable distribution in a divorce proceeding.




Tuesday, January 13, 2015

Living Trusts: Are They For Everyone?


The mere mention of the word “probate” usually instills fear in people, conjuring up images of estates dragging on for years and incurring enormous expense. Seminars and books promoting living trusts are pervasive and they foster the misconception that probate is always an evil to be avoided.  Living trusts are touted as devices which avoid estates taxes and protect assets from long term health care costs.

The truth is that living trusts do not generally avoid taxes, nor do they preserve assets. The only type of trusts which can serve this dual function are irrevocable trusts.  Establishing a living trust can accomplish the purpose of avoiding probate, if you are successful in transferring each and every of your assets into the trust.  If you forget or are unable to transfer an asset into the trust, probate will still be required.  Moreover, certain assets, such as items of personal property, furnishings, jewelry, and works of art cannot be placed into a living trust.  If you own a cooperative apartment, you will need to obtain the permission of the coop board in order to transfer the apartment, which permission is commonly denied.  Lastly, funding a living trust can be an arduous process.  The deeds to your real property will need to be changed, and your bank and brokerage accounts will have to be closed and re-opened in the name of the trust. 

While probate can be a long and costly process in some states, that is not generally the case in New York.  As long as the executor and attorney for the estate perform the work promptly, and there is no contest by a disgruntled family member, probate can be accomplished within weeks.  Much of the delay encountered in the administration of an estate is caused by the need to transfer assets into beneficiaries’ names, and by tax issues, neither of which can be avoided by having a living trust.

While a living trust is not appropriate for everyone, it is advisable in certain instances.  If you own real property in more than one state, creating a living trust for that property will avoid the need for a second probate proceeding.  This is especially true if your property is located in a state where probate is a lengthy and expensive process.  If you are or become a resident of another state where probate is difficult, you may wish to create a living trust for all of your assets.  Moreover, if your only next of kin are distant relatives who may not be easily located, or where it is  expected that a family member may contest your will, having a living trust would be beneficial.

In short, if one is interested in avoiding delays in the settlement of one’s estate,  having your affairs in order is essential.  Selecting a responsible Executor and attorney who can handle matters competently and efficiently is an important part of the process.
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At the Law Office of Angela Siegel, we are pleased to offer legal assistance to clients located in Nassau, Suffolk, Queens, Kings and New York Counties specifically but not limited to Garden City, Jericho, East Meadow, Mineola, Syosset, Roslyn, Cedarhurst, Woodmere, Hicksville, Plainview, Merrick, Wantagh, Bellmore, Rockville Center, West Hempstead, Little Neck, Douglaston, Bayside, Flushing, Forest Hills, Astoria, etc., as well as clients located within the state of Florida.



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