Planning and Administrating Estates During The Time of COVID-19: The State of Surrogate’s Court Practice

The recent executive orders by Governor Cuomo has allowed estate planning attorneys and clients to use alternative means to prepare and finalize their planning documents. However, while it is still relatively easy to complete your estate planning, the areas of estate administration and practicing before the New York Surrogate’s Courts has become more complicated and uncertain.

Prior to April 13, 2020, the courts had limited the matters that they would hear and proceed upon to those that were deemed to be “essential.” This catch-all criteria was not fully explained and it was left to the petitioners/applicants to prove the essential nature of the specific cases. On April 13th, the courts expanded the matters that they would review to non-essential matters, but several obstacles remain for new and old petitioners.

First, given the state’s stay at home order, the personnel currently working at each court is extremely limited. Second, because of the limitations on movement, all filings are now being made either by mail or the state’s e-filing system.   While the latter is theoretically quicker than in person filing, not all counties are employing it and many are relying solely on mailed in documents. The postal service has become less reliable during this crisis and the timing of delivery of documents is increased.

In addition to these challenges, for matters where there are conflicts, the court has delayed any future in person hearings through May in some cases. In addition, the courts are also delaying issuing citations through the end of May as well. All of this together presents a great challenge to individuals with matters before the court or new matters that need to be filed.

Patience and preparation, as is the case with much of what is going on in the world today, are key to weathering this current modified court administration. Petitions that would normally take several weeks will likely be delayed even after these restrictions are lifted due to the backlog of matters. In order to reduce the delay, if you do have a matter that is already in process or needs to be filed, do not delay collecting, executing or sending any necessary paperwork to the court or your attorneys so that you will be better situated than those who wait for the current pause to end.

 

Planning and Administrating Estates During The Time of COVID-19: Virtual Execution of Documents.

The current crisis has posed specific problems as it relates to the execution of new estate planning documents. Unlike in other areas of transactional law, the execution of documents which will ultimately be filed with the New York Surrogate’s Court require adherence to a series of formalities not required of other legal documents. Specifically, with regard to last will and testaments and other estate planning documents, there is a requirement for such documents to be witnessed by two or more persons at the time the signatory of the document is executed. The current restrictions on public gatherings made this requirement seemingly impossible until there was an easing or lifting of the restrictions.

Fortunately, over the last month, Governor Andrew Cuomo has issued a pair of executive orders which allow for the virtual execution and witnessing of certain legal documents including wills and other estate planning documents. The executive order can be found here:

https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency?fbclid=IwAR3ukaFetCzvov8fgAB8IQM88OWp60gRf_2KX918BKOsRvwYmeIJGYVTq8g

Specifically, in order to utilize virtual execution and witnessing of documents, the following is required, namely:

  • If the person executing the documents is not known to the witnesses, they must present identification at the time of the virtual meeting;
  • The individual, witnesses and any supervising attorney must be able to verbally interact in real time during the execution of the documents;
  • The witnesses must receive an electronic copy of the signed document on the same date it was executed and may then sign where needed and transmit the witnessed document back to the individual; and
  • The witnesses may repeat the witnessing of the documents upon receipt of the electronically executed and witnessed documents within thirty (30) days of the execution of those documents.

This executive order follows a previous order which allows notary publics to take virtual acknowledgment of a signatory’s signature.   Collectively, these two orders remove physical separation and the current stay-at-home orders as barrier to current execution of documents. This is especially important for persons who become sick and need documents executed in a timely manner.

Planning and Administering Estates During the Time of COVID-19: What if I get sick?

There are two components to any properly drafted estate plan: planning for your assets and family when you die and planning for what happens if you are alive, but become ill, incapacitated or unable to make certain decisions. The former is what many focus on when they begin the process of planning and often treat the latter as an afterthought. During these times of uncertainty, the importance of preparing for possible illness, incapacity or even unavailability has become paramount.

One of the cruel aspects of the current pandemic is that due to the extremely contagious nature of COVID-19, people who become ill typically become isolated either at home or, in more dire situations, in a hospital. If a patient’s condition worsens, they may no longer be able to express their medical wishes to their doctors. If this happens, having a health care proxy and living will can allow a loved one or friend to inform the doctors and other medical professionals of your wishes.

A health care proxy is simply an appointment of another person to speak on your behalf regarding your medical treatment if you cannot do so yourself. Absent further instructions, the proxy will be vested with the ability to decide what forms of treatment the patient should be given and, potentially, if treatment should cease. The living will serves as a guide for the proxy to follow to determine what your wishes are should you be unable to express them. Common provisions in these documents include directions regarding artificial nutrition and hydration, the decision to shift to palliative care and when and how to cease treatment. These decisions are personal to each person and should be considered in consultation with loved ones and your attorney.

In addition to healthcare decisions, if a person becomes significantly ill, it is unlikely that they will be able to handle their financial and personal affairs. To ensure that these matters can continue to be handled, it is recommended that every person have a power of attorney naming one or more persons as their attorney-in-fact/agent. The power of attorney allows an individual to grant their agents’ some or all of an enumerated list of powers to handle their affairs. Power of attorneys can be durable (meaning they go into effect upon execution) or springing (meaning they go into effect upon a specified event occurring). While both accomplish the same goals, a durable power of attorney does not require any outside assessment to be used. For those with concerns over these powers being abused, every agent must counter-sign the document and are considered fiduciaries under New York law.

As more people become sick and are hospitalized, the need for these two essential documents will likely increase. Having them prepared while you are healthy is a valuable safeguard over your personal and financial well being should you fall ill.

Planning and Administering Estates in the Time of COVID-19: Keeping Your Plan Updated

At the end of any meeting where a will, trust or other document is executed, one of the common questions I receive is how often should a client’s documents be reviewed/changed. My common answer is that major changes to three main areas of importance-health, wealth and family-should trigger a call or email to your attorney to discuss what, if anything, needs to be changed.

It is my sincere hope that during this health and financial crisis, none of you experience any such changes. But, I would suggest that the current national crisis-and any future crisis-should provide a fourth clear reason to review your existing planning. Specifically, during this time when most of us are at home and not venturing out often, there are four areas that should be specifically reviewed, namely:

Fiduciaries: The current crisis has exposed the importance of additional factors to consider when selecting fiduciaries including executors, guardians and trustees. The physical and mental health of chosen fiduciaries may, under circumstances such as the present crisis, may not be as solid as you may wish it to be. Older fiduciaries who are more susceptible to the virus and who also are being advised to remain at home may not be in as great of a position to serve as they would under normal circumstances.   Finally, while proximity is not an official barrier to selecting someone, travel limitations and availability should be factored into these choices.

Funding existing trusts. Whether a trust is irrevocable or revocable and regardless of its intended purpose, if it is not funded, then it accomplishes nothing. Individuals often execute trust agreements and wait till a later date to fund the trust. If you have not funded an executed trust, this is an opportune time to do that for many types of assets. Real property may pose certain problem due to the delays at the county clerk’s offices, but the paperwork can be begun now even if the documents cannot be filed until a later date

Completing beneficiary designations. Amongst the easiest things that you can do to bolster your estate planning is ensure all beneficiary designations for any paid on death accounts and policies (retirement account, life insurance and annuities typically) are up to date and correct.   Most companies have the forms available online and those that do not can be contacted to get such forms.

Making taxable gifts. Individuals often forget to take advantage of the annual $15,000 gift tax exclusion ($30,000 for married couples) that provides a good opportunity to benefit their children and other heirs as well as reduce the size of their taxable estates.   Like reviewing your beneficiary designations, this takes minimal effort and cost to achieve potentially significant results.

A general review of your existing estate plan may uncover additional areas that you may want to revise. In many cases, the benefit of these reviews far exceeds the downside of not doing so.

 

Planning and Administering Estates in the Time of COVID-19: Start Your Planning Now

The current pandemic that has affected the whole world has brought with it a dramatic change to the way we think about many different things. Basic parts of our life like shopping and spending time with friends and family have been upended as we try to find a way to establish a “new normal” while also finding ways to reduce the virus’ reach. It is extremely hard to think of the future when so much of the present remains uncertain, but in the area of trusts and estates, planning ahead is always the proper approach. In the current environment, it may also prove essential to protecting your family and assets.

If you have not begun any formal estate planning, it may seem like an inopportune time to begin that process. However, there are very significant reasons to consider starting the process now. First, as we all know by now, there is no clear end date to the current situation. Even when we can begin to function in something resembling normalcy, many things that were held up or paused during the pandemic will suddenly become pressing. Starting the planning process now can allow you to remove one thing from what may be a long list once the pandemic subsides.

Second, this situation has provided many of us with the clarity of what really matters most to us. An estate plan, at its core, is an expression of the people and things we want to protect above all others. Finally, while it is my hope that no one reading this will fall ill, the possibility is real now more than ever. In the past, procrastinating about planning could be considered problematic. In the current environment, avoiding the process can have profound and detrimental effects on your family and assets.

Once you have determined that you are ready to begin planning, it is important to consider certain general concepts. What are you short term goals for your planning and what are your long-term goals? The former should take precedence, but considering where you would like things to be beyond the next several months and years is also wise. Additionally, given our current situation, the decision as to whom you should ask to serve as a fiduciary (executor, trustee or guardian) has become more complicated. Age and geographic location have become more important factors to consider given the current restrictions and potential susceptibility of older people to the virus.

The form of the bequests or gifts under your estate plan is also complicated by the current situation. Protection of assets for minor children remains a key concern while tax based planning may prove to be less important for the time being. And while testamentary trusts do not pose significant administration issues as it compares to outright bequests, it should be noted that the current situation with the Unified Court System in New York and access to financial institutions might delay the final set up and administration of trusts.

These are unprecedented times for most of us and we can only do so much each day to help our families, our communities and ourselves. Protecting your most valuable assets has become more important than ever and ensuring that your family is taken care of no matter what comes next.

Major Issues for Minors: Protecting Minors in Trusts and Estates

While growing up, many children express a desire to receive adult rights and responsibilities long before they are ready for them or are legally permitted to have them. In an estate planning context, a properly executed estate plan does it’s best to slowly shift the benefit and burden of managing funds from an adult fiduciary to a minor or younger adult beneficiary. Where actual minors are involved and there is no estate plan to guide this transition, both the courts and financial institutions have their mechanisms to protect children and their assets.

In the New York Surrogate’s Court, a minor child who becomes a party to estate administration as a beneficiary, legatee or other role will often have court appointed representative known as a guardian ad litem.   Guardians ad litem are typically attorneys or other competent adults who stand in for the minor child or children and represent their interests. In an estate administration, the Guardian Ad Litem (GAL) assures that decisions made by adult fiduciaries are fairly handled as it relates to the children.

As the GAL’s representation draws to a close, he or she will right a report for the court of their findings. When there is a question about an aspect of estate administration, the GAL may intervene or object on the child’s behalf in the same capacity as an adult beneficiary. The GAL is compensated for their work and those funds often come directly from the assets left to the minor children.

On the financial side of things, financial institutions also seek to protect minors who have money set aside for them. This is regulated in New York by the Uniform Transfers to Minors Act (UTMA) and allows an adult (a parent or guardian) to serve in a custodial role over a minor’s account. Each account must benefit a single minor and pooled accounts for multiple children are not allowed.

During the period of minority, the custodian of the account is entrusted to ensure the monies are protected. The custodial role terminates at one of three times: at age 18 if the account creator dictates that the account is to terminate at the age, at age 21 if the account creator is silent on termination or upon the death of the minor before termination. If the custodian dies prior to the termination of the custodial account, a new custodian will be appointed.   Successor custodians are often not named, so a court appointment is often necessary.

These fail safe protections do not take the place of an estate plan; in fact, relying on them can cause extra costs, waste due to a child receiving funds at too young an age or extra administrative time and costs. Protecting minors and their assets is best done by a minor’s parent and they have the power to do so in a more effective, efficient and inexpensive manner.

Please contact info@levyestatelaw.com for more information.

You Don’t Need An Angel, You Just Need a Guardian

One of the key decisions families with minor children have to make when setting up an estate plan is who will serve as the guardian of those children if both parents die prior to the children reach 18 years old.   The probability of a guardianship provision being enforced is rare, but not impossible. For that reason, it is essential that such a decision be made long before it can become an issue.

Guardianship can mean different things depending on who the ‘ward’ or person needing care is and why they need such care.   For persons with mental or physical disabilities or who lack capacity to care for themselves, an interested party will typically petition the court to allow them to take control of another person’s life. Guardianship for minors differs on several fronts. First, it has an expiration date built in (when the minor turns 18). Second, depending on the type of guardianship sought, it can affect a minor’s entire life or just the assets they may have. Finally, the proof needed to establish guardianship is significantly less than a guardianship based on incapacity or disability.

A guardian of a minor may be appointed to care for the minor’s person, property or both.   Guardianship of a person deals with the care of the actual minor. In most situations, the minor would live with the appointed guardian and the guardian would be responsible for ensuring the proper care of the child. Guardianship of property is specific to assets that are set aside for or owned by a minor child. This can include inherited property, gifts or other assets that require adult supervision. Guardians of property serve alongside the Surrogate’s Court as being responsible for the assets of the minor. On a minor’s 18th birthday, the assets become the direct property of the former minor.

The selection process for choosing a guardian can be fraught with familial issues, concerns about making the correct choice and anxiety about whether anyone can care for a child the way their parents can.   As mentioned above, it is a rare occurrence when these provisions actually get enforced.   When choosing a guardian, some factors to consider include the potential guardians values and beliefs and how they compare to your own; financial stability and responsibility; availability to care for a child; and if the guardian has their own children, whether the care of additional children would create an undue burden on your selected guardian.

It is not easy to think of someone other than yourself or your spouse/partner raising your child and many clients delay completing their estate planning work because of their anxiety over this issue. The alternative is relying on the state to name the right person as guardian without any guidance from the minor’s parents. It is far better to go through the small discomfort yourself than to leave your children with potentially greater issues if the wrong guardian is chosen.

Please contact info@levyestatelaw.com for more information.