New York Estate Planning & Elder Law Blog

The AARP reports that 64 percent of Americans do not have estate planning documents. While “do it yourself” estate planning documents might seem attractive if you do not have an end of life plan, they are not without risks.

The advantages of “do it yourself” estate planning are clear. By performing estate planning without legal assistance, a person has the potential to save a great deal of time and money. If done incorrectly, however, “do it yourself” estate planning can lead to additional costs and other obstacles.

The Difference between “Do It Yourself” and Hiring an Attorney

Every day, a countless number of people are exposed to sudden and unexpected emergencies. For people who do not have estate plans in place, these events can create very serious problems.

Unfortunately when these events occur, a large number of people lack adequate estate plans. If you die without a will in New York, state law decides what happens to your assets and who should be held responsible. This article reviews some of the quick and essential steps that a person can use at any point in their life to begin estate planning.

# 1 – Wills Are an Important First Step

At the end of March 2019, the Pennsylvania Supreme Court heard the case of Gavin v. Loeffelbein, which concerns the appointment of emergency guardians. In the case, the Superior Court held that an emergency guardianship order automatically expired after a period of thirty days.

In addressing this case, the Superior Court found that a person who is subject to an emergency guardianship is not prohibited from making decisions about his property even if a court ordered guardian has been ordered to decide these matters. As a result, the Pennsylvania Supreme Court vacated a decision by the state’s Superior Court, which had erred when it considered the validity of an emergency order.

While this case arose outside of New York, it still serves as a good reminder about the importance role played by emergency guardians, which will be examined in this article.

Since 1970, marijuana has been classified as a Schedule I substance under the federal Controlled Substances Act in addition to other drugs like cocaine, heroin, and LSD. The cultivation or possession of marijuana is a federal crime unless used for federally approved research.

Despite these federal laws, various states have begun to legalize the use of marijuana of certain types and in certain ways. As a result, it is increasingly likely that people in New York who engage in estate planning will have some type of cannabis related assets. There will also be an increase in the  number of other complex estate planning issues regarding cannabis. As a result, this article examines some of the most important issues that are likely to arise concerning estate planning and marijuana.

The Current Status of Marijuana in New York State

In March 2019, the Supreme Court of Nebraska affirmed the decisions of a county court in the case of In re Estate of Helms. Many years after Helms was killed in a terrorist bomb, his estate obtained a wrongful death judgment in federal court finding that Helms was a domicile in North Carolina and that damages would be distributed in the manner permitted by North Carolina law A dispute, however, arose about whether North Carolina or Nebraska law applied to Helm’s case A county court later ruled that the Helms’ case should be divided in accordance with North Carolina, and this decision was then affirmed by the state’s Supreme Court.

While the Helms case reflects the problems that can arise in deciding what state probate laws should apply to a case, there is also a risk that a person could be double taxed if that individuals maintains a residence in multiple states. As a result, this article reviews some of the most important things about domicile that you should remember when it comes to estate planning.

Creating or Changing a Domicile

In March 2019, the Alabama Supreme Court heard an influential estate planning decisions. The case was initiated by Chris Jones, who appealed a circuit court decision regarding a will contest about a will written by Jones’ father. Chris Jones initially filed the case in probate court because the probate court failed to admit the will to probate or to appoint a personal representative of the estate. Around this time, Jones also filed a motion transfer the will to an Alabama circuit court which led to a review by the Alabama Supreme Court.

In its decision, the court held that the circuit court had lacked jurisdiction and as a result the circuit court’s judgment was void and the case was dismissed. This case serves an important reminder about the role that a probate court can have in deciding how an estate is divided.

Probate court in New York as well as every other state has the potential to be a long and drawn out process. As a result, many people during the estate planning process decide to take the steps necessary to avoid probate. In the state of New York, there are a number of ways to bypass the probate process, which will be reviewed in this article.

In a case that provides an important lesson about the role of charitable deductions, The Ninth Circuit recently affirmed a tax court’s decision to sustain a deficiency against an estate because the estate had overstated its amount of charitable deductions. In the case, Ahmanson Foundation v. United States, the Ninth Circuit emphasized that a person who creates an estate is only allowed a deduction for estate tax purposes for what the charity actually received.  

In addition to estate planning, taxpayers in the United States have relied on charitable donations for years to reduce their taxable income. The Tax Policy Center even reports that approximately 20 percent of people who file their taxes utilize charitable donations. Unfortunately, not every contribution that a person makes to a charity qualifies for tax deductions. As a result, this article reviews some of the various ways that a person can transfer assets to a charity and not qualify for a tax deduction.

# 1 – Contribution of Services