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The Right to Die: New York’s Medical Aid in Dying Act

Published on: July 12, 2016 | by Ettinger Law Firm

Nationwide

The Death with Dignity Act gained national attention when it Brittany Maynard, a 29 year old woman suffering from an incurable brain tumor, chose to end her life with the help of a lethal dose of medication. Since then, a national debate has resurfaced about terminally ill patient’s ability to decide when, not if, they are going to die. Currently, the Death with Dignity Act has been passed in California, Oregon, Vermont and Washington, with proposals in many more states, including New York.

New York

What To Do When There are Multiple Wills Written: Which Takes Precedence?

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

Over the course of your life, you go through many stages. For some people that includes moving to and from different states, entering or dissolving a marriage, having children, losing loved ones, and having significant changes in income. As these events shape your life, your outlook and perspective on how you want your assets to be taken care of may change. If you decide your wishes have changed and you execute a new will, you should carefully assess whether any previous wills or documents differ from the terms of your new will, as to make sure your wishes are properly followed.

Two Wills

Traditionally, in estate planning if a person leaves two wills and both are offered into probate, the court will look at the surrounding circumstances to determine which will ends up taking precedence and which will be considered revoked. The best way for the maker of the will to express that the most recent will is the one they want followed, is by explicitly revoking the earlier will in the writing of the new will. Issues can arise in probate court when it is not clear whether the maker of the will, also known as the testator, wanted the first will completely revoked.

ARBITRATION CLAUSES IN WILL OR TRUST

Published on: February 3, 2016 | by Ettinger Law Firm

NEW YORK RULE ON ARBITRATION FOR PROBATE DISPUTES

The idea of using quasijudicial means to settle disputes is as old as the country itself. More specifically arbitration is a method that parties utilize that is usually cheaper, quicker and often with much less formality, yet still adheres to principles of fundamental fairness. George Washington famously included a proviso in his will that outlined a method to arbitrate certain disputes in the execution of his will. Certainly this was no minor matter, as President Washington was perhaps the wealthiest landowner in Virginia and by extension maybe the wealthiest American at the time.

In today’s dollars, President Washington would be worth an estimated half a billion dollars, succeeded by perhaps only President John F. Kennedy’s wealth. By the time of President Washington’s passing in 1799, arbitration was already well established in the United States. New York no longer permits arbitration in the context of a dispute over a last will and testament, as it would unconstitutionally interfere with the power of the Surrogate’s Court to adjudicate disputes involving the disposition and transfer of property of decedents, the administration of estates and probate of wills. Matter of Jacobovitz, 58 Misc. 2d 330 (Nassau County, 1968). The same cannot be said of arbitration clauses in trust documents. There is much diversity of treatment of arbitration clauses found in trust documents, with New York taking a middle of the road approach to interpretation and enforcement of arbitration clauses in trust documents. That principle, however, only applies to the application of the transfer of property via an individual’s last will and testament. It does not apply to the mediation and adjudication of disputes in trust documents controlled by New York law.

MORE ON SHORT TERM ANNUITIES AND MEDICAID PLANNING

Published on: December 23, 2015 | by Ettinger Law Firm

SOME ANNUITIES DO NOT RENDER APPLICANT INELIGIBLE FOR MEDICAID

As this blog wrote about several months ago, certain financial products purchased by a Medicaid applicant do not render them ineligible for Medicaid benefits. While the previous post discussed why a short term annuity did not render a Medicaid applicant ineligible, this blog will discuss why such a choice may be a good fit. For sure, the short term Medicaid annuity must satisfy certain criteria to qualify for the federal “safe harbor” provisions that would otherwise render the purchaser of the short term annuity ineligible for Medicaid.

RECENT CASE

CAMERAS IN THE NURSING HOME

Published on: December 11, 2015 | by Ettinger Law Firm

MANY ISSUES TO ADDRESS – PRIVACY AND LEGAL CONSIDERATIONS

The issue of video cameras in nursing homes has exploded over the last several years. With the large scale saturation of such user friendly technologies as Skype, Facetime and similar video technologies it should not come as a surprise that these issues are cropping up in nursing homes. Video cameras can be a major liability for nursing homes, including even criminal liability. It seems almost weekly that someone is arrested or charged due to evidence gleaned from video cameras located in nursing home residents’ rooms or other areas. While management may decide to utilize video monitoring equipment in public areas, there are many problems with residents using the same or similar video technology even in their own rooms.

Certainly there are common areas that are not public in nature that are a definite problem area for video imaging. The distinction lies in the public versus private designation. You do not have an expectation of privacy in public. There is an expectation of privacy in a residential unit. With a video camera a resident may be able to, unwittingly, record another resident without his or her permission, in a private area of the nursing home. Such a broadcast, depending on the audience, could be grounds for an invasion of privacy lawsuit. In addition, it could be a violation of the Health Insurance Portability and Accountability Act, usually known as HIPAA, the federal law that requires the confidentiality of medical records. In addition, if there is an audio recording function, recording a third party’s conversations may also violate state criminal wiretapping laws. New York is in the majority of states that require the consent of at least one of the interlocutors for any interception to be deemed legal.

ASSUMPTION OF POTENTIAL TAX LIABILITY MAY AFFECT ESTATE PLANNING

Published on: November 21, 2015 | by Ettinger Law Firm

GIFT TAX LIABILITY

Gift tax liability and estate planning sometimes intersect. The tax Court case of Steinberg v. Commissioner, 141 T.C. No. 8 (Sept. 30, 2013) deals with an interesting issue, if tax law can ever be interesting, where gift tax liability and estate tax liability intersect. It is important to note that the opinion deals with gift tax liability and how to measure gift tax liability, it nonetheless deals with some important estate tax implications. In 2007, Ms. Jean Steinberg gifted approximately $71,000,000 in cash and securities to her four daughters. In exchange, the daughters agreed to pay the gift taxes as well as the estate tax on the transfer should Ms. Steinberg pass away within three years of the gift transfer. An appraiser valued that the daughters assumed approximately $6,000,000 in tax liability for the estate taxes alone. When Ms. Steinberg filed her tax return, the IRS disagreed with the $6,000,000 write off, as the daughter’s assumption of estate tax liability did not increase the value of the estate. The Internal Revenue Service (IRS) claimed that Ms. Steinberg owed an additional approximately $2,000,000 in taxes and mailed her a notice of deficiency.

ESTATE TAX LIABILITY

Using Beneficiaries as Part of Your Estate Plan – Part II: Considerations

Published on: October 13, 2015 | by Ettinger Law Firm

An earlier post on this blog provided an overview of using beneficiary designations as part of your estate plan. Recall that beneficiary designations are a way to transfer property automatically upon the death of the asset owner outside of the probate process. This post is part II of that discussion, and include some of the pros and cons of using beneficiary designations, as well as a few special considerations related to certain forms of beneficiary designations.

Pros and Cons of Using Beneficiary Designations

Beneficiary designations can be a simple and effective mechanism to transfer your property in much the same a will or trust distributes your property. The advantages of beneficiary designations include the ease in which it can be set up and the speed and in which the beneficiary receives the asset. Also, the owner of the asset has flexibility to designate any of combination of shares to any number of primary and contingent beneficiaries. Beneficiaries may be individuals, trusts, charities, or the property owner’s own estate by way of its personal representative.

Estate Planning Basics – Planning for Incapacity

Published on: May 18, 2015 | by Ettinger Law Firm

While the main purpose of an estate plan is to distribute assets to your loved ones after you are gone, it can also serve an important purpose while you are alive – planning for your potential incapacity. An estate plan can provide instructions for the management of your assets, payment of expenses, and personal instructions for your care if you become unable to communicate those decisions on your own.

Importance of Planning for Incapacity

Planning for incapacity is important for everyone, but it is especially important for unmarried partners. Typically, the spouse of an incapacitated person is named as the administrator for financial, legal, and medical needs. However, unmarried partners are not always named as the administrator, and a blood relative may be named instead.

What to Do When You Inherit Your Parent’s Home

Published on: October 27, 2014 | by Ettinger Law Firm

According to the Boston College Center of Wealth and Philanthropy, the Baby Boomer generation stands to inherit over $27 trillion in the United States alone over the next four decades. A large portion of that wealth is invested into your parent’s home, but when you inherit the house it can come with emotional and financial issues. When siblings are involved in the decision making process, deciding what to do with the home can be even trickier.

There are three options that you can elect after you have inherited your parents’ home: sell it, move in, or rent it. Each choice comes with its own advantages and disadvantages, emotionally and financially, for you and your siblings.

Selling the House

Estate Planning Tips for Business Owners

Published on: July 17, 2014 | by Ettinger Law Firm

Many people, business owners and everyone else, are concerned about the federal estate tax when creating their estate plans. Although the federal estate tax is 40%, it does not apply unless the decedent has an estate worth over $5.34 million, and the estate amount is doubled if the person is married. However, there are other concerns besides the federal estate tax that a business owner should take into account when creating an estate plan.

Other State and Federal Taxes

The estate tax should be the least of a business owner’s worries when creating an estate plan. Before an estate tax is even considered other state and federal taxes are first deducted from a business and the estate. The federal income tax rate on an equity owner of a business can top out at 44.6%. State income taxes compound the issue by charging even more on an equity owner’s share. A business owner should first try and minimize the damage done by income taxes on his estate before dealing with the possibility of an estate tax.