New York Estate Planning & Elder Law Blog

Important Issues to Consider About Federal Estate Tax in 2021

Published on: January 26, 2021 | by Ettinger Law Firm

As we enter into 2021, the country remains in a state of flux. Following the United States Presidential election in November 2020, the beginning of January also saw the Georgia run-off which involved two seats in the United States. While the Republican Party had 50 seats in the Senate before the run-off and Democrats now hold 48 seats, this number after the election changed to 50 seats for the Republican party and 50 seats for the Democrats as well as a tie-breaking vote by Vice President-Elect Kamala Harris as the president of the Senate in favor of the Democrat party. This change in political administrations in the country will almost certainly result in some substantial changes not just the federal estate tax but also other critical estate planning issues.

How the Change in Political Administrations Will Impact Estate Tax Planning

Firstly, certain provisions are already slated to disappear from the law. Other provisions are attainable as part of the give and take of the legislative process, while a third group of legislation is unlikely to be introduced out of concern of alienating voters in the 2022 elections. Some of the provisions likely include:

Ways to Avoid Being “Squeezed” as an Elderly Caregiver

Published on: January 23, 2021 | by Ettinger Law Firm

The term, sandwich generation, was created to refer to a generation of individuals who were taking care of their parents while also having their own children. As the baby boomer generation ages, younger individuals are moving into a similar situation and in many cases are doing so at a younger age than their parents did. While this can be a complex process, adequate planning can help.

A recent AARP study found that approximately one in four family caregivers is a millennial, which refers to individuals born between 1980 and 1996. One reason why younger caregivers are becoming more common is that many baby boomers decided to wait until later in life to have children. Another reason for the increase in millennial caregivers is that divorces are more common and millennials are often acting in the caregiver role that a spouse would have filled.

Caregiving for an elderly loved one is not an easy process. For one, providing care to an elderly loved one is a time-consuming process. Young caregivers also have less secure jobs and are hesitant to discuss caregiving obligations with the previous generation. Even in the best situation, acting as a caregiver while juggling employment and other obligations can be overwhelming. Through adequate planning, you can fortunately avoid some of the stress associated with caring for your loved one. As a result, this article reviews some important support systems that you should make sure to have in place if you are caring for an elderly loved one.

What Ochse v. Ochse Means for Trust Planning

Published on: January 22, 2021 | by Ettinger Law Firm

In the November 2020 case of Ochse v. Ochse, a Texas court heard a case that could potentially have a ripple effect on how trusts are interpreted. In this case, a mother established a trust that provided the trustee was authorized to make distributions to both the trustee’s son as well as the son’s spouse. At the time the trust was executed, the son was married to his first wife, but later divorced and married a second wife. The son’s children then initiated legal action against the son for breaching fiduciary duties as trustee and joined with the first wife who is also the mother as necessary parties. The first wife and son then filed competing summary judgment motions addressing whether the first or second wife was the son’s “spouse” as referenced in the trust. The trial court then held that the second wife was the correct beneficiary at the time of the suit. The first wife subsequently appealed.

What the Case Involved

The second wife and son argued that the use of the word, “spouse”, in trust documents did not mean the first spouse’s actual name. Instead, these parties argued that the term referred to the class of whoever was currently married to the son. The court of appeals, however, disagreed. The first wife argued that in the absence of contrary intent, a gift to a “spouse” of a married individual must be construed to mean the spouse at the time of the document’s execution instead of a future spouse. The first wife further argued that the terms “primary beneficiary’s spouse” as well as “son’s spouse” referred to the first wife because she was the son’s spouse at the time that the trust was executed. Both interpretations requested the court to view spouses as either statuses or class gifts.

Lessons Learned After IRS Proposes User Fee for Estate Tax Closing Letters

Published on: January 20, 2021 | by Ettinger Law Firm

Executors as well as the personal representatives of estates can be held personally liable for either applying or distributing estate assets when there are unpaid estate taxes owed in case the Internal Revenue Service is not paid. When estate tax returns are not filed, the final amount of estate taxes due is not determined until either the statute of limitations expires or an audit occurs. Consequently, estate fiduciaries are left uncertain about whether or when an adjustment to estate taxes will occur if the Internal Revenue Service has accepted an estate tax return as filled.

This type of response is unfair to both fiduciaries and beneficiaries because the most fiscally responsible fiduciaries can hold back on distributions until the amount taxed is more certain. To assist fiduciaries in assessing whether tax is due, an estate tax return is filed with the IRS. These returns are often issued following review by the Internal Revenue Service and a decision about not to audit or following the completion of post-audit procedures or litigation.

The Role of Estate Tax Closing Letters

Lessons Learned After New York Mail Fraud Case

Published on: January 19, 2021 | by Ettinger Law Firm

The Department of Justice recently indicted four men including two individuals who are located in Canada and two in the state of New York for a mass-mailing scheme that robbed thousands of senior citizens of tens of millions of dollars.

Based on the Canadian indictments, the accused fraudsters sent mail to thousands of elderly individuals whose names and addresses were obtained from mailing lists. The mail promised cash prizes in exchange for a fee of anywhere from $19.95 to $39.95 and included a return envelope to mailboxes across the United States that were rented using fake identities.

Based on the New York indictments, the accused fraudsters sent mail to hundreds of thousands of elderly individuals in the guise that they could win millions of dollars in cash rewards if they paid a fee between $19.99 to $24.99. Many of the people who sent money in response were elderly. These alleged fraudsters obtained the names and addresses of victims through mailing lists and netted $7.5 million per year.

3 Tips on Discussing Estate Planning with Your Parents

Published on: January 17, 2021 | by Ettinger Law Firm

While many members of the Baby Boomer generation view Millennials as self-involved, the Millennial age group has been maturing. Some Millennials are even currently in their early 40’s. This means that many Millennials are reaching a point where they are having to engage in difficult conversations with their parents about estate planning. While many people falsely believe that estate planning is only the process of designating who should receive what assets as well as how debts are settled after a person passes away, estate planning also involves deciding who should make decisions about incapacity as well as other critical end of life issues. To better help you prepare to have a conversation with your parent, this article reviews some critical estate planning discussion tips that you should remember.

# 1 – What Documents You Need to Prepare

Wills are critical for resolving issues with a loved one’s estate after they pass away. There are also other types of critical paperwork that your parents should prepare while they are still alive. These documents include things like health care proxies, living wills, and powers of attorney. Creating these documents is critical, particularly if your loved one has a history of either Alzheimer’s or dementia. You should also know where your parent stores all of this paperwork. You should additionally ask your parent to create a list of passwords for accounts.

4 Things To Appreciate About Theft and Nursing Homes

Published on: January 14, 2021 | by Ettinger Law Firm

Placing a loved one in a nursing home is one of the most difficult decisions that many people make. It isn’t easy for a person to make the transition from living at home to living in a nursing home. To make the place feel more in common, it’s common to bring personal belongings to the nursing home to make your loved one feel more at ease. Unfortunately, however, items can sometimes go missing. As a result, this article reviews some critical things about nursing home theft as well as how to deal with it.

# 1 – What Type of Property Goes Missing Most Often

Any item can be stolen from a nursing home. Some objects, however, tend to go missing more often than others. Some of the most frequently stolen items include:

Reasons Why Estate Planning Should Be Part of Your Retirement Plan

Published on: January 13, 2021 | by Ettinger Law Firm

One of the most recurring themes about estate planning as well as retirement strategies is to minimize risk. As a result, if you plan on creating a comprehensive retirement plan, you should make sure to also include an adequate estate plan. While you will hopefully enjoy a long and comfortable retirement, it is still important to consider what will happen if you don’t survive to retirement. This article reviews some of the most critical reasons why you should make sure to address estate planning issues while plotting your retirement.

# 1 – What Happens If You Pass Away Without a Will

If you pass away without a will describing how your assets should be passed on, a New York court will be required to follow in regards to how assets are distributed. This often results in family members fighting one another for the outcome of a case. While the news is full of this dilemma happening with famous people like Prince and Tom Petty, it’s also a common occurrence among people with smaller estates. As a result, it is critical to make sure that you at least write a will addressing how your assets are distributed. Even if you do not have a large estate, wills can still play a critical role in passing on any meaningful type of property that you own.

4 Things to Understand about Nursing Homes and Bed Sores

Published on: January 10, 2021 | by Ettinger Law Firm

An elderly individual or person who is receiving care at a nursing home should not be required to live with bed sores. In many situations, bed sores are a good indicator that a person is being neglected. These sores can lead to infections that can jeopardize a person’s health and even lead to death. Sometimes also referred to as “pressure sores”, if you see these on your loved one you should not hesitate to speak with an experienced elder abuse lawyer. It also helps to understand some important details about the nature of bed sores.

# 1 – The Names for Bed Sores

Bed sores are injuries that occur when the pressure of a person’s weight reduces the blood supply to certain points on both the skin and underlying tissue. If not adequately treated, skin and other issues eventually die and leave an open wound. Bed sores occur among individuals who are unable to move to relieve that pressure, which is most common among the bedridden. While they’re frequently referred to as bed sores, these injuries are also sometimes referred to as pressure sores, pressure ulcers, or decubitus ulcers.

Estate Planning Advice If You Plan on Relocating

Published on: January 9, 2021 | by Ettinger Law Firm

After moving between states, many people are overwhelmed and overlook critical estate planning steps. This can lead to undesirable estate planning results because different states treat issues like marital property and taxes differently. In these situations, it helps to understand some helpful advice about how to revise and update your estate plan.

# 1 – Estate, Gift, and Inheritance Taxes

Federal estate tax only applies to individuals with estates whose assets are greater than $11.58 million, but state estate and gift taxes can be placed on much lower asset values. Currently, 18 states and the District of Columbia place either state or inheritance taxes on both residents and non-residents with assets in the state. The tax rate as well as the amount of excluded assets, however, varies substantially between states. Most states do not place estate taxes on transfers to a surviving spouse. Whether you move into or out of a state that imposes an estate or inheritance tax, your estate plan might need to be revised to reflect the change in taxes. For example, the New York estate tax ranges from 5 to 16 percent and is substantially lower than the federal tax rate.