Category Archives: Trusts

Presidents, Pandemics and Planning: A look to 2021 from the Lessons of 2020-Five Ways to Add Certainty to Your Estate Plan in Uncertain Times

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2021 begins in less than four weeks and the outlook on all fronts remains largely unknown.  Will there be a smooth transition from the current president to the president-elect? Will the Senate remain Republican controlled or will a 50-50 split render it a de-factor Democratic controlled chamber for the first time in six years?  Most importantly, will the Pandemic that has so fundamentally altered the world dissipate and/or disappear?

The answers to the above questions are unknown and it would be unwise to speculate.  In light of such uncertainty, finding stability in any area of life is a way to reduce stress and shield your family and assets.  The following are some suggestions to consider as we close in on the end of the year.

  1. Consider the use of a Revocable Living Trust-The current backlog in the Surrogate’s Courts has amplified existing problems with the processing of estates in New York.  Coupled with an already insufficient staff and funds, it is unlikely that the current logjam will let up any time soon.  To best allow your family to have immediate access to your assets after death, the best way to achieve this is to transfer your assets to a revocable living trust while you are alive and well.  This form of trust allows the grantor of the trust to continue to have access and use of the property in it while also titling it in such a way that allows family to access it in the event of incapacity or death without court intervention.
  2. Ensure beneficiary designations are updated on all transfer-on-death (TOD) assets-Retirement accounts, life insurance and other TOD accounts provide the easiest means of transfer for certain assets upon the owner’s death.  Failure to name initial and successor beneficiaries typically reverts the assets to a person’s probate estate, thus rendering the advantage these assets have moot. This can typically done online, cost-free and without the need to work with any advisor.
  3. Prepare/revise Power of Attorney (POA) and Health Care Proxy (HCP) documents-Because of current hospital restrictions, visitation and in-person communication with hospital patients has been limited or eliminated.  The increase of hospitalizations also leaves many individuals unable to handle their financial affairs or express their healthcare wishes.  A POA and HCP allowed a trusted relative or friend to step into the shoes of the hospitalized/incapacitated individual’s shoes to make decisions and handle the affairs of an individual while that individual is unable to do so.
  4. Finalize, update and prepare your estate plan-Confronting the need to plan for the future or the need to change previously prepared plans is never easy.  It is often times like these when the fears and anxieties about this are confronted with the reality of what happens if you do not address the underlying issues.  Removing the uncertainty of having an incomplete, outdated or nonexistent plan will remove a significant burden from your life.
  5. Stay informed and stay in touch with your advisors-Educating yourself on changes to the laws is not always the most engaging use of your time, but staying ahead of such changes will help guide you to ensured security with regard to your planning.  Alternatively, regular check-ins with your advisors is an easy and efficient way to keep informed.

William Shakespeare once wrote that “the past is prologue.”  Indeed, the immediate past of 2020 will remain with us for many years to come.  How we learn from it and make decisions from it will dictate how our lives, our families and our futures will be written.

Have a very happy and healthy holiday season and here’s to a much better 2021!-MCL

For more information, please contact info@levyestatelaw.com

Presidents, Pandemics and Planning: A look to 2021 from the Lessons of 2020-The Changing Face of Planning and Administering Estates in New York

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One common theme across all industries and professions is that the COVID-19 Pandemic has drastically changed the way people work and do business.  By necessity, we have been forced to adjust to a world where direct, personal interactions became non-existent, limited or altered by the need to wear protective coverings and to socially distance from others.  Working in the trusts and estates field has been a typical example of this.

The entirety of my career and the careers of my colleagues have focused on personal interactions with our clients, colleagues, adversaries and court/government officials.   Few other fields of law required so much personal interaction and under the rules and laws of New York state, it was mandatory.  COVID has forced both practicing planners and the courts/agencies they work with to make alterations to how things are done which, while not illogical from a practicality perspective, have long been resisted.

Estate Planning

The execution of testamentary documents has long been a very formalized and rigid process.  To execute a will that will be accepted by the New York Surrogate’s Court, an individual was required to sign the document in the presence of two witnesses.  In addition, to avoid the need to produce affidavits from the witnesses at the time of the person’s death, a self-proving affidavit signed by the two witnesses had to be affirmed and signed by a notary public.  For non-testamentary documents, such as trusts and other agreements, a notary’s signature was also needed.

In April, in response to the continued stay-at-home order imposed by New York, Governor Cuomo issued two separate executive orders which allowed for the execution and notarization of documents using video conferencing software such as Zoom or Facetime.  The requirements of witnesses and notary acknowledgment remain, but the need for people to be present in the same place at the same time was no longer required.  These orders were a much-needed lifeline for clients and planners alike to ensure that the safety of all parties was maintained while also allowing the needed work to be completed in a timely and proper manner.

Estate Administration

A majority of courts in the Unified Court System have used electronic filing of documents for years prior to the Pandemic.  The Surrogate’s Court, with very limited exceptions, had long resisted any form of filing aside from in-person filing.  Given the importance of original documents and the need for court clerks to provide individuals with instructions on changes and/or additional documents, it was not completely unreasonable.

COVID-19 did not automatically change this.  The Surrogate’s Courts throughout New York were no less affected by the Pandemic and many petitions before the court were put on hold as in person work at the courts slowed down or stopped at the courts.  With exception of emergency filings, new filings were suspended temporarily, a huge problem at a time when the annual mortality rate was rapidly increasing.

By early summer, most New York counties began allowing e-filing of petitions and documents for the very first time.  A few courts (Rockland County most notably) did not follow suit and only allowed mailed in documents to be accepted.  While this allowed existing and new matters to resume being processed, the shutdown/slowdown caused a very long backlog for many courts.  In some counties, no new citations or court dates were being issued well into the late summer.  Additionally, the increased mortality rate from COVID has increased the number of new applications and estate.

What Now?

It is unclear of these recent changes will remain once the Pandemic has subsided and in-person business becomes more prevalent.  Beyond the mechanics of how business is done, the state of the world and the court system makes planning in 2021 and beyond a larger challenge than it has been in previous years.  As the means of planning and administering estates has changed, so too must the strategies we employ to ensure individuals and families are properly protected.

For more information, please contact me at info@levyestatelaw.com

Presidents, Pandemics and Planning: A look to 2021 from the Lessons of 2020-Elections Have (Possible) Consequences

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The election of 2020, both at the federal and New York level, provided a glimpse into where our country and state will be heading as we enter the third decade of this century.  At both levels, the most immediate and pressing concerns are the containment of the COVID-19 pandemic and repairing the economic damage that came with it.  This will require additional spending and adjustments to the respective tax systems to make up for the substantial shortfalls in revenue that have or will occur over the next few years.

The structure of the Federal and New York governments have both changed and additional changes may come depending on the outcome of the two runoff Senate elections in Georgia in January.  Pending those results, it is impossible to be certain of the possibilities, but with the positions from those whose elections are already certain, we can speculate as to where things will be heading.

Federal

At the end of 2017, with control of the Presidency and both houses of Congress, soon-to-be-ex-President Trump signed into law the Tax Cuts and Jobs Act.  Significant cuts were made to the income tax, capital gains tax and corporate tax rates.  Most significantly for estate planners, the estate and gift tax exemption were more than doubled from the previous base exemption of $5 million to $11 million per person and $22 million per married couple (the exemption has since increased annually by a cost of living adjustment increase).  This drastically shrunk an already small number of estates subject to federal estate tax.

President-elect Joe Biden has proposed substantial rollbacks of many of Trump’s tax policies including reducing the estate and gift tax exemption to the 2009 amount of $3.5 million.  This would be even lower than the amount than President Obama agreed to in 2012 as part of the Fiscal Cliff deal.  Both income tax and capital gains tax rates would also be increased for individuals who make over $400,000 a year.

Trump’s tax changes were enacted using Budget reconciliation, a process which allows for economic related laws to pass with a mere majority and not the filibuster-proof threshold of 60 votes.  Given the current makeup of the US Senate, it is certain that if President-elect Biden chooses to tackle tax policy before the mid-term elections in 2022, he will have to use this process as well.  This would also require Democrats to win both seats in the Georgia runoffs and garner support from all Democratic (and Independent) Senators to allow Vice-President-elect Kamala Harris to break the tie. 

If Democrats cannot successfully establish an even split in the Senate, Biden may choose to either forego tax changes or focus solely on economic recovery policies.  Alternatively, he can chart a less progressive path and attempt to garner support from the small pool of moderate Republican Senators.  After 2022, tax policy will become more important as many of the provisions of Trump’s tax law expire in 2025.

New York

Presidential and federal elections often obscure the important of state-wide elections, but the 2020 New York election was fairly notable due to its results.  Beginning in 2021, the Democratic Party will have a super-majority in both the Assembly and State Senate.  This will the legislature to override any vetoes by Governor Cuomo on any legislation he may differ from them on.  Tax policy is an area where it is very conceivable that a conflict may emerge

Under Governor Cuomo’s tenure, the state estate tax exemption has risen significantly from $1 million in 2014 to $5.93 million in 2021.  This has exempted many more estates from state estate tax while also increasing the tax burden on those estates that exceed 105% of the applicable exemption.  While it is likely that both the legislature and Cuomo will seek to continue to place this burden on the very wealthy, it is quite possible that the exemption will be reduced to cover the state’s budget shortfalls.  New Yorkers would likely be much more tolerable of an estate tax increase than an increase to income or property taxes especially in light of the federal income tax treatment of the SALT deduction already increasing many New Yorkers taxes.

Budget shortfalls and additional spending are almost inevitable given the current economic problems at both the federal and state levels.  One way or another, the money for this will have to be raised.  Increased taxes are coming.  By whom and from whom remains to be seen.

For more information, please contact me at info@levyestatelaw.com

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

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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

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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.

Summer’s Here, And the Time Is Right, For Getting Your Estate Plan in Order!

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Over the next few weeks, summer will usher in a fun-filled, relaxing three-month period where kids can say goodbye to their studies for the time being and adults can travel and enjoy everything the season has to offer. It would seem odd to think of this as the perfect time to work on your estate plan; in fact, with many companies offering summer hours and workloads generally lightening during the warm months, it is the perfect time to consider to get your estate plan in proper shape.

Where do you start? It all depends on what you’ve already done, but here are ten action items for you to consider while you’re making your vacation and travel plans:

  1. Have your initial planning documents drafted. You’ve been busy all year…and the year before that…and the year before that.   Taking the first step in getting your estate planning prepared may be the hardest, but once you begin, the process can be completed quickly and painlessly.   Initial documents include a last will and testament, a durable power of attorney and a health care proxy/living will.

 

  1. Review your existing documents to ensure they still fit your needs. Having an initial plan in place puts you ahead of most people, but that is only the starting point of the estate planning process.   Family, assets and health changes can affect what your wishes are. If you haven’t reviewed your documents recently, take the time to speak with your attorney to ensure that your wishes and intentions are still reflected in your documents.

 

  1. Fund your irrevocable and revocable trusts. Clients often forget that setting up a trust is a two-stage process.   First, the trust document is drafted to express how it will work and who will benefit from the assets. Second, the assets must be transferred into the trust. In particular, with irrevocable trusts, transfers should be made as soon as possible to avoid the imposition of the three-year rule if you die within three years of a transfer.

 

  1. Complete and/or update your beneficiary designations. Paid on death accounts and contracts such as retirement accounts, life insurance and annuities are amongst the easiest to claim after a loved one dies. Without the need to petition the court, these assets can be transferred quickly to the proper beneficiaries. However, without proper beneficiary designations, they can pass to the estate or to the wrong persons.

 

  1. Create or revise your assets list. Most estate attorneys, financial planners and other advisors will compile a list of your assets during the planning process, but the most accurate lists usually are self created. Updating or creating such a list will give you a better idea of where things stand with you and your family and can reveal that your assets have grown to the point where additional planning is needed.   Alternatively, in the event of your death, it can provide your heirs with a good roadmap of what assets need to be transferred and retitled.

 

  1. Review your life insurance. The amount, type and ownership of life insurance can change as you grow older and expand your family/assets. Many insurance agents provide audits of policies at no additional cost. Additionally, because life insurance is taxable only for estate tax purposes, changing the ownership of the policy to a life insurance trust is a great way to reduce the size of your taxable estate.

 

  1. Protect your family or small business. Business owners are often focused on the here and now and don’t take the time to consider what will happen to their business if and when they are no longer running it.   Many businesses lack the proper buy-sell agreements or even a proper organizational document to give co-owners and the owner’s family guidance over what happens to the business once the business owner leaves, retires or dies.

 

  1. Create a gifting plan. With the large increase to the federal estate tax exemption and the increased New York exemption, it might seem less important to consider gifting strategies. This is not true. For starters, individuals can now gift $15,000 (or $30,000 per married couple) to their beneficiaries every year. Additionally, through the use of trusts, the monies given to minors can be protected from waste and be available for usage for education and other expenses.   Finally, for those with estates nearing New York’s “estate tax cliff,” the lack of a New York specific gift tax continues to keep gifting as an important tool to reduce estate taxes.

 

  1. Consider Charitable Giving. For those with estate tax issues and philanthropic goals, setting up a structure to maximize your giving takes time and many state and federal approvals before you can begin giving. Summer gives you ample time to get the process started so that you can hopefully be ready to make contributions before the end of 2018.

 

  1. Understand your planning goals. Estate Planning attorneys and other advisors provide suggestions and advice based on what we know about the law and what others do.   But, without the input and understanding of what our client’s goals are, any plan we put in place will be incomplete.   With more time to contemplate your planning goals, you can help your advisors craft the right plan for you and your family.

 

Please contact info@levyestatelaw.com for more information

When a ‘minor’ issue can become a Major Problem.

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One of the primary concerns for families with minor children have with regard to their estate planning is the care, both personal and financial, of the minor children if both parents predecease the child before he or she reaches the age of majority. The appointment of a guardian (typically a relative or close friend) provides a level of comfort for parents who wish to be certain of who will take of their children if they are no longer around.

Relying on a guardianship appointment alone may not sufficiently protect your child from certain financial problems that are common with children who receive large sums of money at an early age. In New York, a child reaches the age of majority at 18. Unless the child consents to the continuation or appointment of a guardian, all monies and property held for their benefit must be released to them directly. In rare circumstances, a child can petition the Surrogate’s Court prior to reaching 18 if the appointed guardian is not fulfilling his or her responsibilities or the court finds guardianship to not be in the child’s best interest.

It is rare to find an 18 year old with sufficient financial maturity to handle the administration, investment and maintenance of large sums of money. It is for this reason that I strongly advocate establishing trusts for children under both last will and testaments and under lifetime trusts. The benefits are substantial and clear: first, by continuing to have a fiduciary (rather than the child) as the responsible party for the assets, the value of the assets have a reduced chance of being wasted or used for frivolous or harmful purposes.   Second, by retaining the assets in a trust and not in a child’s name, the assets can be shielded from potential creditors of the child.

Finally, using a trust gives the donor of the assets-the testator under a will or a grantor of a trust-the ability to structure the distributions and usage of the assets to best accommodate their wishes and the needs of the children beneficiaries. The donor is typically a parent or close relative and may have a better understanding of a child’s strengths and weaknesses when it comes to managing money.

There is no perfect solution that ensures that assets being inherited by or gifted to a child will not ultimately be wasted or abused. However, by relying on your own knowledge of a child rather than arbitrary deadlines, the chances of seeing the assets used for the intended purposes greatly increases.

 

Please contact info@levyestatelaw.com for more information.

The President has no Trust.

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Following his election as the 45th President of the United States, President Trump made repeated claims that he would divest himself from his business assets to avoid any conflicts of interest. Despite numerous claims that conflicts of interest laws do not apply to a sitting president, in January, Trump finally revealed his plan to the world-he would transfer his business holdings to the Donald J. Trump Revocable Trust, a trust set up for his own personal benefit but controlled by his son Donald and Allen Weisselberg, the CFO of the Trump Organization, who were named as Trustees. This, he claimed, would allow him to remove any doubt with regard to any potential conflict between his acts as president and his business holdings.

Earlier this month, ProPublica published a report that in February, the terms of the Trust were changed to allow the President the ability to receive principal and income from the Trust at his request subject to the approval of the Trustees. While this appeared to be an about face from Trump, the truth of the matter is the choice to use a revocable trust as a means of divestiture was never a serious transfer of his assets and the control thereof.

For starters, a revocable trust is not a traditional trust under United States trust law. Typically, trusts are irrevocable and the person contributing property to a trust loses all direct control over the property. Additionally, in many states, the donor or grantor of a trust cannot also be a beneficiary of the trust. Finally, while not impossible, most trusts cannot be amended or changed without a court order.

A revocable trust has none of these restrictions. The grantor of the trust reserves the right to revoke the trust at any time. In most instances, a grantor of a revocable trust is also the main beneficiary of the trust. And while the trust agreement can put restrictions on the control and distribution of trust property, the grantor has the ability to amend the trust and remove and replace the trustees if they are not happy with how the trust is being administered.

The main restriction found in a revocable trust is that these powers typically disappear if the grantor becomes incapacitated or dies. The trust then becomes irrevocable and the grantor loses the power to revoke and amend. It is possible that the President’s trust could have included his time as president as a further triggering event to losing these powers. The certification of trust presented by the President indicates that he retained his right to revoke the trust, so it is clear he did not do that.

Revocable trusts are often used to ensure a client’s privacy, to protect a client’s assets if they become incapacitated and to reduce the time and cost of estate administration upon their death. The idea that such a trust could be used to create any sort of separation between the president and his assets ignores the fact that the rights retained by the President are not a bug, but a feature of these trusts.  Revocable trusts are trusts in name alone and cannot be used to properly separate the President or any other government official from the conflicts associated with their business holdings.

For more information on trusts, please contact info@levyestatelaw.com

A Declaration of Interdependence

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Last Monday, we celebrated the 240th anniversary of the signing of the Declaration of Independence, the document by which the United States of America was born.  By recognizing the need to break free from the control of England, the former colonists put forth the belief that only by gaining independence could they gain the unalienable rights of “Life, Liberty and the Pursuit of Happiness.”

Nearly two and half centuries later, the world has changed dramatically, but the desire for independence and the ability to chart our own course remain key values to Americans. Running parallel to this need for freedom is our history of finding great success by relying upon each other.  The motto “E Pluribus Unim” (out of many, one) reflects that this is also a core American value.

When preparing an estate plan, it is understandable to want to rely on one person or one advisor to ensure all your wishes and desires are fulfilled.  However, in most cases, it is preferable and useful to have multiple advisors across multiple professions working with you to provide you and your family with the security you wish for.  By working together, attorneys, accountants, financial and wealth advisors and other professionals can bring their specific expertise to the table and strengthen the other advisors’ abilities to help a client reach their goals.

Family members and friends also play a part in ensuring your estate plan fulfills its goals. In their capacities as fiduciaries or beneficiaries, these most important individuals can assist both the individual and their advisors during their lifetime and beyond.  Conversely, a disgruntled family member can cause great harm to the success of an estate plan.

In the end, each individual’s estate plan should reflect their specific wishes and intentions.  It is each individual’s right to plan their affairs as they see fit.  Utilizing the people and resources available to you is best way to achieve this goal.

For more information, please contact info@levyestatelaw.com.

The Perils of Procrastinating: Six Ways Delaying Your Estate Planning Can Harm You, Your Assets and Your Family

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Procrastinating is a typical and normal response to having to deal difficult and uncomfortable tasks and situations. Everyone would prefer to delay dealing with the hard decisions related to setting up an estate plan. But, for far too many people, what begins as procrastination turns into inaction. Since no one can accurately predict when any part of an estate plan will need to be utilized, this inaction can have irreparable and unwanted harm on an individual, his or her assets and their family.

Without an estate plan in place, many decisions that should have been made by an individual are left to a series of statutes and rules related to the laws of intestacy. These laws and rules dictate how a person’s estate will be managed and administered if they did not leave a properly executed will or other testamentary device when they die. While those who have an estate plan will be able to make these choices, those without will have numerous choices made for them:

Who will benefit from your estate? The laws of intestacy determine who will benefit from your estate based on a specific line of familial succession. If you are married without children, your spouse receives everything.   If you are married with children, the surviving spouse and the children split the estate 50-50.   If no children or spouse are living, the line of succession continues down all the way to first cousins once removed if no previous class of relative is alive.

This poses several potential problems. First, the statutes do not differentiate minor children from adults, leaving a potential situation where a minor child will receive potentially large sums of money. How this money is held and the level of court control over this money becomes an issue as well (more on that later).

Second, for more complicated family structures, the statutes pose significant problems.   Children born of wedlock or adopted children may face the need to prove their relationship with a deceased parent in court. Non-blood relatives who might have benefited from the deceased individual’s estate are not considered.

Finally, since New York does not recognize the concept of common law marriage, a non-married partner will be left out of the inheritance even if they had children with the deceased. It is especially important for persons in non-traditional relationships to have their wishes outlined in an estate plan if they wish to benefit persons other than their blood relatives.

Who will administer your estate? Without a will or other testamentary device, the Surrogate’s Court will look to the intestacy order of succession to determine who will be appointed the administrator of the estate. In addition to taking this decisions out of an individual’s hands, the lack of a clear choice to administer the estate may lead to higher costs, a longer administration and potential litigation from unhappy beneficiaries.

Who will care for your minor children? In the rare instances where both parents die with minor children, a will or other testamentary instrument will typically nominate person to serve as the guardian for any minor children. Without a will, the friends and relatives of the deceased may petition the court for the right to care for the children. It is then up to the judge to decide, based on his or her opinion, who the most qualified person is. The judge’s criteria may differ sharply from the parents’ criteria for choosing a guardian.

How will the assets of the estate be held and what involvement will the court have with the administration of the assets? It is often advisable to utilize one or more trusts under a will as the receptacle for the assets passing out of the estate. Asset protection, tax savings and avoidance of waste are common reasons why using trusts are preferred over outright bequests. A court is unlikely to create a trust for an individual who does not have a will or testamentary instrument. This failure to plan may expose assets to risks that a trust could easily avoid.

In addition, if a minor is a beneficiary of an estate, the court and their guardian will oversee their share of the estate until the minor reaches eighteen.   The guardian will be required to petition the court for any distributions that a child may need and requests for distributions are not automatically granted.

How can I avoid, delay or reduce estate, gift and generation skipping transfer taxes? Beyond using an individual’s state and federal exemptions, coupled with the marital deduction if an individual is married at the time of their death, failure to have an estate plan in place will almost completely foreclose any tax planning for an estate’s assets.   Post-mortem (after death) planning is an available option, but it may not be as effective as proactive planning.

Who will make decisions related to finances and medical care if I am unable to? The previous questions related to what happens after someone dies, but issues related to incapacity and disability are equally important.   Along with a will, a durable power of attorney, health care proxy and living will are essential components of an estate plan. Without theses documents, decisions related to finances and medical decisions may not be made by the correct person or may require court intervention to authorize. In a worst-case scenario, a dispute may arise amongst family members about these decisions that could devolve into litigation.

It is impossible to predict when and how you will need to utilize an estate plan. However, for most people, it is clear that making the decisions that will affect themselves, their families and their assets is preferable than leaving these decisions to others.

Please contact info@levyestatelaw.com