Wills

The Danger of Unrestricted Bequests and Gifts

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

The Inheritance Left To University of New Hampshire By A Long Time Library Employee Was Spent In A Way That Raised A Few Eyebrows

Longtime University of New Hampshire library cataloguer died last year at the age 77. As his final wish to the world he left the entirety of his estate to the university where he graduated from and worked for most of his life. What shocked many though is the size of the humble librarian’s estate: four million dollars accumulated over a lifetime working for the university and living frugally.

But while many at the University of New Hampshire are thankful for the gift, the way the administration has decided to spend it has many asking if the university is honoring the librarian’s memory. One million dollars is being used to install a new video scoreboard at a new University of New Hampshire football stadium. Many students, alumni and community members wonder if this is the best way to use the funds considering the librarian’s occupation and passion for literature.

IRS Rules Now Reflect Updated Same Sex Marriage Rulings

Published on: October 9, 2016 | by Ettinger Law Firm

New Department of the Treasury and Internal Revenue Service Final Regulations Now Reflect Supreme Court’s Obergefell v. Hodges and Windsor v. United States Rulings

On September 2nd, the final regulations that reflect the holdings of the Supreme Court rulings that upheld same-sex marriage laws around the country as well as Revenue Ruling 2013-173 were released to the public. The new terms in the regulations reflect the new descriptions of marital status of taxpayers for federal tax purposes.

A Brief History Lesson

Back To Basics: Witnesses and Your Will

Published on: August 20, 2016 | by Ettinger Law Firm

It is common knowledge that in order for a New York will to be valid that there must be other people to witness you signing your will as well as putting down their own signatures on your will. Despite this knowledge though improper execution of the will is the most common reason that a will is found to be invalid.

Why Do I Need Witnesses At All?

Witnesses provide an important evidentiary function to the probate process. Witnesses to your signing can provide first-hand accounts of the execution of the will. If a will is ever contested, the witnesses can testify about the procedures that were followed when executing the will, the testamentary capacity of the testator as well as the mental capacity of the testator.

Gifts to the Dead in New York: Are They Still Effective?

Published on: July 23, 2016 | by Ettinger Law Firm

Most people plan their estate believing that everyone they have left money or bequests to will survive them, such as when a parent specifies that money or property will be left to a child. But sometimes unexpected deaths happen and when it does, many people are left wondering what will happen to the property that they specified to go to the predeceased. It is a tricky situation, but thankfully New York law and proper estate planning precautions can address the problem.

New York “Anti-Lapse” Statutes

Common law followed in the past dictated that gifts to someone who was deceased was null and void. This is due to the fact that a dead person cannot own property. Since they cannot have property, they cannot inherit it. When someone left property to a person who had predeceased them, the bequest would be said to have lapsed. This would have unintended consequences, such as cutting out people who would have inherited the property if the bequest had not failed and others receiving more than the testator intended.

Hollywood Tragedy: A Life Lost Unexpectedly

Published on: June 28, 2016 | by Ettinger Law Firm

2016 will not relent in claiming high profile celebrities. This week’s death was as tragic as it was needless. Anton Yelchin, aged only 28, an only child, was killed in his Hollywood home’s driveway when his Jeep rolled down a slope and pinned him between a brick wall and the car, possibly due to a known defect in the Jeep. Mr. Yelchin, most prominently known for his starring roles in Odd Thomas and Charlie Bartlett, will be deeply missed by all.

An Estate Unplanned

There is no information currently available about whether or not Mr. Yelchin had a will or an estate plan when he passed, but if he is like the majority of Americans, chances are that he did not even have a simple will. According to a survey by Rocket Lawyer, 51 percent of Americans age 55 to 64 do not have wills. Even worse, 62 percent of those ages 45 to 54 have never drafted a will. The lower the age, the higher the chance that that person does not have a will.

Back to Basics: Discussing Death and Your Estate In New York

Published on: June 22, 2016 | by Ettinger Law Firm

No one likes discussing their own demise. The topic is generally considered taboo amongst most people and is possibly the most uncomfortable conversation topic. This is unfortunate for everyone though, because if a person is unable to discuss their own death, chances are they are unwilling to plan for it either. That is one of the worst cases possible for not just for the person who fails to plan but their family members and people who rely on them as well. Discussing death is the first step to engaging people to plan their estate and while it is a difficult topic to broach, there are certain steps that a person can take to help bring people closer to planning their estate.

Do Not Put Estate Planning In Terms of Death

People looking to engage others about estate planning should not discuss death, rather they should focus on planning for incapacity. A good estate plan does not just encompass what happens when a person dies. It will also discuss plans for what happens when a person becomes incapacitated such as if they are in an accident and unable to communicate and are unconscious.

PROTECTING YOUR INDIVIDUAL RETIREMENT ACCOUNT FROM CREDITORS

Published on: June 4, 2016 | by Ettinger Law Firm

STATE SPECIFIC PROTECTIONS

The current aggregate value of retirement assets in America is roughly $21 trillion, with individual retirement accounts (IRAs) amounting to the largest single investment asset. While many, if not most, types of retirement assets and accounts are protected against creditors, the IRA is not necessarily one of them. The various protections for IRA are dependent on the amount, how long ago you put the money into your account and the state or jurisdiction you live in. Employer sponsored plans are covered by protections found in federal law, so it is much easier to talk about what protections exist for such plans. The Employer Retirement Income Security Act of 1974 (ERISA) created a large host of protections for employees, including protections against creditors, except when the creditor is the Internal Revenue Service (IRS) or a spouse or former spouse for debt incurred through domestic relations.

The protections found under ERISA have expanded over time through both Congressional action and judicial interpretation of the law. ERISA plans must provide periodic updates to the employees, information about the plan features, creates fiduciary responsibilities for the plan administrators as well as things such as an appeal process for certain decisions that the employee disagrees with. One large collective group of accounts that are not protected, however, are IRAs. IRAs, as the name implies, are owned by an individual and thus do not fall under the protections of ERISA. Most protections for IRAs are found in state law.

WHAT DOCUMENTS TO KEEP AND WHAT TO SHRED

Published on: May 27, 2016 | by Ettinger Law Firm

SPRING CLEANING TIME MEANS CLEARING OLD PAPERWORK

With tax day over and the need to collect and forward any number of financial and tax documents to the government and with the coming of spring, it is time to turn to spring cleaning. The question should be asked, what paperwork can I throw out, should I throw out and what paperwork should I keep. To be accurate, you should never throw out any financial paperwork, you should shred or incinerate such documents. It is inevitable that in any such endeavor, you will come across documents that matter for purposes of your estate planning, such as wills, trusts and the various financial documents that speak to your estate planning. In any event, you should rely on a system to help you collate these important documents for future use.

You should keep certain original documents in an easily accessible but safe place, such as a fire proof safe or perhaps even a safety deposit box. Things such as birth certificates or adoption paperwork, licenses and passports, marriage certificates, judgments of divorce, military discharge papers and social security cards. Other documents do not necessarily need to be kept as an original, they should be regularly review, at least bi-annually, if not more often. Documents such as a will, trust or other testamentary documentation will be kept by your attorney or law firm, but it still always best to maintain a copy or, better still, several copies on hand.

HOW TO HELP YOUR EXECUTOR

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

CHOOSING THE RIGHT PERSON AND STEPS TO TAKE

As noted in a previous blog, being an executor of an estate can be a thankless job. There are ways, however, that can allow you to make the job and life of an executor easier and less painful. It is a job that carries with it much responsibility, so taking a few proactive steps may help to save the executor a lot of heartache. One of the first steps you need to do, even before helping a named individual is to name the individual. In other words, pick the right person; in fact it is even better to pick a few individuals as successors in the event that the executor passes away before you or is otherwise unable to serve as the executor of your estate. Even better is to pick two people who will serve as co-executors; if you do this, you must make someone the primary person who shall serve and who has the final authority to make whatever decision needs to be made in the event that there is a disagreement.

It is important to keep in mind that the person you chose is going to in charge of your assets that you amassed throughout your life. All other things being equal, it is best to have someone who lives local and in the same state as you. Few things in life provide such a stark choice. It may be more important to you and the heirs, however, that you pick someone who is familiar with you, your wishes and your assets, even if they live further away or in a different jurisdiction. If you choose a professional, such as an attorney, it is important to keep in mind that there will be costs associated with this. If you permit and allocate a specific payment structure into the will or testamentary trust, it may not matter, since even a family friend or relative may also be entitled to a fee. Finally, it is best to speak with that person in advance to ensure that they understand that they are being named as the executor of your estate and that they will do so.

AMERICAN BANKERS ASSOCIATION – SAFE BANKING FOR SENIORS

Published on: May 16, 2016 | by Ettinger Law Firm

LARGE NEED TO REDUCE AND PREVENT FINANCIAL EXPLOITATION

The American Bankers Association is looking to serve a large market that is only getting larger by the day. At the same time, they are working to shore up the larger financial markets in a larger effort to prevent financial fraud perpetrated against seniors. As one banker noted during a speech on the topic, the banking community responded to the need to protect those with diminished ability to discern the difference between a real deal being sold by a legitimate vendor and a scam by predators. In February, 2016 it launched the Safe Banking for Seniors program, with various state bankers association across the nation rolling out their own version modeled on the American Bankers Association.

As of the inception of the program, 30 states joined in to help usher in the program. The New York Bankers Association is not one of the 30 states and does not currently such a program. Nevertheless, it is gaining popularity across the nation and many states bankers associations are seeing the utility and popularity of such a program. Furthermore, the program is not restricted to states bankers associations, individual banks, regional banks and bank chains can join in the program. As the American Bankers Association notes, 30% of the population of the country will be 60 or older by 2025. The Consumer Finance Protection Bureau and the American Bankers Association both note that $2.9 billion per year is lost to fraud perpetrated against elder Americans. Some estimates are as high as $36 billion per year, with only one in 43 cases of financial fraud against an elderly American properly documented and reported. The primary program is designed for banks and bankers associations, which will in turn filter down to individual elderly bank customers.