Articles Posted in Uncategorized

Aside from federal and state tax, estate planning is a vital process for anyone seeking a risk-free future for they family. Without formation of a will, estate, or trust, assets are distributed pursuant to state law in the jurisdiction of residence of the decedent. The estate planning process ensures that a surviving spouse, children, and other named beneficiaries are in receipt of valuable assets according to a decedent’s wishes when state laws are inadequate. Here are ten essential reasons estate planning should be part of your retirement strategy.

1.     Financial Control

A constructive priority, estate planning offers enhanced financial control. Taxation also falls under this general framework of fiscal responsibility and reporting accountability. Control, the exercise of financial accounting management, enables an estate owner to dictate how assets will be transferred, held, and distributed during their life, and upon death. A testamentary document such as a will or estate document, established during a decedent’s life, is a written directive that provides a Trustee or Executor instructions for distribution of estate or trust assets to named beneficiaries.

When planning an international trust, a Clifford Trust will allow a grantor to transfer high net worth assets that produce taxable income into an estate’s trust with the option of reclaim at time of trust expiry. Though used little at present, the Clifford Trust offers the opportunity for high net worth beneficiaries tax relief. If planning an international trust involving foreign national beneficiaries, a Clifford Trust will protect heirs from withholding tax at time of transfer (12 Int’l Bus. Law. 394 (1984)).

Rules to ‘Clifford Trust’ Tax Shelters

Prior to the Tax Reform Act of 1986, Clifford Trusts have been used to tax-shelter assets through transfer of earned income to children from a parent or grandparent’s estate. Post-enactment of the Act, it was mandated that Clifford Trust income be taxed to the grantor, making these trusts nearly obsolete since with exception of use as an effective legal means for large tax expense avoidance and to avoid withholding by international trusts involving foreign national family beneficiaries.

When retirement investors are considering assets for estate or trust transfer, one of the main priorities is the impact of risk. In the past several years, cryptocurrency assets have increased in popularity. Until 2017, Bitcoin and other digital currency assets were also considered as tax-exempt “property” under federal Internal Revenue Service (“IRS”) guidelines. Recent IRS rule reform of tax-exempt treatment of cryptocurrency assets reflects a growing concern about the lack of direct oversight of digital currency within the regulatory environment. Identified as the most significant risks of cryptocurrency asset transfer within policy formation at this time: pricing transparency, price manipulation, as well as the potential for fraud scams, custody disputes, and liquidity issues.

How CFTC & SEC Oversight Will Help

Regulatory oversight of price transparency and control over price fixing, and price manipulation is uneven across national and international markets. For this reason, digital currency cannot be traded on regulated financial markets. Derivatives like Bitcoin futures trading on the CBOE or CME offer investors the least risky investment for profit.

A Kings County Surrogate’s Court judge recently removed the executor to an estate without a hearing over the individual’s failure to comply with the court’s order to properly account of the estate’s assets. The case is a prime example of how and why someone can be removed as the executor from estate if he or she fails to comply with their fiduciary duty to faithfully discharge the responsibilities of the executorship.

The petition to remove the executor was brought by a co-beneficiary to the estate, the sister of the former executor, after the executor failed to open a separate trust account and to file federal or state income tax returns for the trust. Additionally, the petition charged that the respondent’s neglect of the real property held by the limited liability company caused it to sell for a price much less than two previous offers to purchase the real estate, which the executor had rejected.

Prior to suspending the executor from his role of managing the estate, the co-beneficiary filed two-petitions with the Surrogate’s Court. The first, seeking the executor’s removal from management of the estate and the second asking the court to compel the executor into account and file the estate. The court subsequently issued a 45-day order for the executor to account for the estate and file the necessary paperwork.

The record of retirement investment and trust fund fraud is extensive, and not restricted to sales agents, fiduciaries, and retirement investment advisers.

In New York, attorney malpractice in the area of retirement investment and estate planning has led to professional activism by the New York Bar Association and national affiliation the New York Bar Association, and punitive action by the courts. The Lawyers’ Fund for Client Protection is an independent public trust, financed by attorney registration fees.

The Fund reimburses legal clients for “losses caused by dishonest conduct of former New York State lawyers,” including theft of estate assets and falsely promised and paid for legal services. Adopted by the American Bar Association House of Delegates, the Model Rules for Lawyers’ Funds for Client Protection enacted August 9, 1989 is an amendment of the Model Rules for Clients’ Security Funds first ratified in 1981.  

New York laws of intestacy and probate do not allow an executor to sell real estate or property belonging to a decedent’s estate where no will is present without official appointment by the Surrogate’s Court of the jurisdiction where the case has been filed. If a decedent’s will does not deny sale of real property and other assets, the executor can sell a property without the consent of beneficiaries or probate proceedings. The power of a fiduciary representative in such case, depends on the terms of a decedent’s last will and testament.

Fiduciary Appointment and Duty

According to New York statute, in probate cases where no will is present, an administrator, rather than an executor must be appointed for probate distribution of estate assets to proceed. This includes fiduciary liquidation of the decedent’s financial assets such as stocks, bonds, bank accounts, and sale of real estate. All proceeds are to be deposited into the estate’s holdings for distribution after all creditor claims, legal fees, and other expenses have been satisfied.

As our parents age, it may become necessary to take on a some type of guardianship role to help them live out their golden years in comfort and dignity. Even highly functioning seniors can use a little help in certain areas to ensure their best interests are served and avoid costly mistake that can leave elders in financial and medical dire straits.

Under New York law, mentally competent seniors may willfully yield control over certain aspects of their lives to trusted friends or family to act in certain ways on their behalf. This is often referred to by the courts as the “least restrictive form of intervention” since it only gives the guardian limited power to help compensate for any limitations faced by the elder.

To achieve this type of guardianship, both parties (the elder and prospective guardian) will need to file their paperwork in the probate court where the elder lives. As long as the elder agrees and can demonstrate to the court why it is in his or her best interest to appoint a guardian, courts are generally inclined to allow this limited guardianship. Depending on the powers granted, the guardian can help their elder manage decisions related to medical care, financial management, and paying taxes.

Fair market value of assets held by the estate is key for determining tax liability of an estate. In Estate of Eva  Kollsman v. Commissioner of Internal Revenue, taxation of the sale of two 17th-century Old Master paintings was contested in federal tax court. The federal U.S. Tax Court agreed to expert analysis of the IRS’s testimony and opposition to the Plaintiff’s valuation of the two paintings sold at auction as “unpersuasive” and “unreliable.”

Appraisal Below Fair Market Value

The two paintings, Village Kermesse, Dance Around the Maypole (“Maypole”) by Pieter Brueghel the Younger, and Orpheus Charming the Animals (“Orpheus”) by Jan Brueghel the Elder or the Younger were, according to the IRS, worth more than claimed by the estate in the case. “Maypole” was later sold by Sotheby’s New York, Auction Lot. 43 in 2009 for $2,100,000 hammer price. Following Eva Franzen’s death In September 2005, Vice President of Sotheby’s North America and South America, George Wachter appraised the value of the paintings at $500,000 for Maypole and $100,000 for Orpheus, respectively. In his testimony before the Tax Court, damage caused by the decedent’s smoking was reportedly the reason for lower than fair market valuation of the paintings in the estate’s 2005 IRS tax return.

While it might not be the most important things on peoples’ minds, the truth is that all of us need a last will and testament, regardless of whether or not we think our estates are large enough to need one. Without a last will and testament or some type of trust, the assets of our estate will enter into what is known as intestacy and be distributed according to a line of succession dictated by the law, rather than what our final wishes may have been.

In New York, any assets not placed into a trust will need to pass through probate court (known as Surrogate’s Court in the state). Even in cases where the deceased created a will and specifically dictated which assets go to which heirs, the court must still hear the matter to ensure the deceased’s wishes are carried out.

However, certain assets will not pass through probate with or without a will. These types of assets include homes that are jointly owned by spouses, life insurance payouts, retirement accounts with named beneficiaries, and bank accounts set up as payable-on-death. Without a will, any other assets like personal property and savings accounts will be passed along according to New York’s intestacy laws.

Will your credit card debt haunt you when you die? Outstanding debts can be attached to an estate or trust if a creditor files a lawsuit against a decedent in court. Protect your estate and your loved ones from creditor attachment by taking precautionary legal measures to restrict debt collectors from forcing your last will and testament into probate court.

Who is obliged to a decedent’s credit card debt?

Whether a surviving spouse or other loved one is liable for the credit card debt of a deceased family member depends on signatory of creditor agreement. If a spouse or co-signing family member is participatory in a credit agreement, they will be obligated to pay outstanding debts owed on the account after the other co-signing party dies. Joint credit card accounts are the most common example of this circumstance. Authorized users of a decedent’s credit card account, however, are not necessarily liable for paying off the balance after the debtor dies. Not considered the true owner of the account, and authorized user does not have a duty to fulfill the card agreement with payment insofar that they have ceased using the card at the time of the owner’s death.