New York Estate Planning & Elder Law Blog

Creating a trust is one of the most common ways people use to pass on the assets without having to pass the estate through probate and deal with courts, judges, and create a public record of what the individual has accrued over his or her lifetime. Just like there are many ways to pass on an estate to heirs, there are also different types of trusts that people can use to accomplish these goals.

Picking the right type of trust for one’s estate depends on many things including the type of assets in one’s estate, the individual’s goals, and whether some of the assets might go to minor children that will be unable to manage finances for themselves. Whichever type of trust you choose to go with, it should be based on careful analysis and attention to detail to ensure that your final wishes are carried and heirs receive their due inheritance.

Inter vivos trusts

Creditor attachment of an estate to satisfy outstanding debt may subsequently involve those assets in a bankruptcy. Depending if debts are attached to estate property that is involved in a Chapter 7 (personal) or Chapter 11 (business) related bankruptcy, the court will appoint a trustee to oversee and administer the process.

The Bankruptcy Trustee’s role and responsibilities.

Before a bankruptcy petition is submitted to federal court, the bankruptcy trustee is responsible for the documented accuracy of liquidation transactions to meet court requirements for debt dilution (11 U.S. Code § 704 – Duties of trustee). Trustees receive a percentage of assets sold, as well as a fee for service for performing those transactions. Petition for Chapter 7 or Chapter 11 bankruptcy must be accompanied by the estate transaction record. The bankruptcy trustee must review all records involving an estate’s assets, including market value appraisals, and income tax returns. After the record substantiating the bankruptcy petition has been verified by the trustee, court filing may proceed.

A last will and testament is an incredibly important document that needs to be kept safe and help ensure that when your estate passes through probate, New York courts will allow your executor to carry your final wishes and disperse assets to your heirs. After taking all of the important steps like consulting with family members, working with a trust and estate attorney, and finally drafting the last will and testament, great care needs to be taken in storing the original copy of the will to make sure the estate can pass through probate courts as quickly as possibly and make the job of the executor that much easier.

To preserve the original copy of their last will and testament, testators (the person creating the will) have a number of options to preserve the original copy of their executed will. Many people elect to keep their executed will in a safe deposit box at a bank or other secured facility. It is important to note that no matter where the document is kept safe, the executor must know the location of the last will and testament to pass the estate through probate.

New York probate law holds that if the original executed copy of the last will and testament is lost, the probate court will presume the testator meant to revoke the document and proving anything to the contrary can be a difficult, time consuming, and expensive endeavor. Even if a bona fide copy can be produced, New York probate courts will likely not accept the document and enter it as a copy of the will.

Nowadays, almost all of us have some kind of social media account, online banking profile, or us a cloud-based system to store data and conduct various forms of business. Just like any other asset in our estate, we need to create a plan that allows a trusted friend or family member to take over these accounts after we pass away and ensure that our final wishes are carried out.

Fortunately, New York state laws understand the changing times and make estate planning for digital assets much easier than it was in years past. New York is one of several states which passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). As with the remainder of our estates, the law allows individuals to appoint an executor to manage digital assets upon the death of the testator.

Under the RUFADAA, electronic communications are considered digital assets that require strong privacy protections because they are often private correspondence between one persona and another. To give access to these sensitive communications, testators need to give explicit permission, even for seemingly harmless social media accounts like Facebook or Twitter.

From the 1980s forward, patrimony laws have impacted major museum institutions around the globe. As source countries filed lawsuits against the cultural agents of former colonial empires, requesting return of antiquities and other cultural property, the response to due diligence by those foreign jurisdictions continues to be uneven. Conflicts over the rightful ownership of cultural property can also affect estate planning and probate proceedings. Beneficiary cultural institutions responsible for the accession, preservation, and management of those rare cultural objects can also decide to deaccession those gifted assets after the death of an estate holder, further complicating a matter.

Legal Definition of “Cultural Property”

Cultural property is distinct from personal or other forms of property within federal law. The United States recognizes the cultural property of sovereign tribal or foreign nations based on legal claims of territory, identity, or moral right. Rights to the ownership of registered cultural assets is considered a “superior claim” within international law; and supersedes “good faith” monetary transactions by collectors or museums.

Although none of us expect that we might not be able to manage our affairs later on in life, it is still important to plan out a contingency just in case circumstances like old age, a catastrophic injury, or loss of mental capacity takes over our abilities to act for ourselves. One important piece of planning folks can engage in is making sure they have a power of attorney in place to allow a trusted individual to manage their finances for healthcare and lifestyle decisions to ensure they live our their golden years with dignity.

By creating a financial power of attorney, one can allow another person to act on his or her behalf in a number of different ways including making deposits or withdrawals at the bank, manage Medicare and other government benefits, and look after financial investments. Because income and finances are such an important part of our lives, these areas need constant oversight to make sure there are no disruptions that could negatively affect our standards of living.

Under New York law, competent individuals are allowed to act on behalf of someone else to help manage finances. While it is an added benefit that the person with financial power of attorney have legal or financial management experience, the law does not require these skills as a prerequisite and one need only choose a trusted individual to act on his or her behalf. Furthermore, the parameters of the power afforded to the person with the power of attorney will be entirely spelled out in the document granting such control.

The fiduciary responsibility to create an effective estate investment plan is something that some trustees and administrators find to be a challenge. Trust laws allow estate planning clients a fair amount of control and flexibility in asset diversification. If the goal is to generate income while minimizing taxes, and protecting assets for the purposes of family legacy, working with a licensed estate planning specialist who offers expert advice about trust investment, will assist a client in accomplishing the financial objectives of an estate.

Asset Diversification Strategies

Most high net worth estate planning clients require a diversified portfolio of equities, fixed-income securities, hedge funds, private equity, real estate, and natural resource funds. Since enactment of the Uniform Prudent Investor Act (UPIA) in 1994, all trustees in the United States must consider specific guidelines when formulating an investment strategy. In accordance with the legislation, a trust investment planner must consider the duration of the trust; the size of the portfolio; liquidity and distribution; tax consequences; expected total returns; individual investments; and the overall economic environment. Rules of UPIA fiduciary duty stipulate that trust assets are to be diversified, unless the purpose of the trust is solely for the targeted transfer of a family interest in a business, or to avoid capital gains. Trustee fiduciary liability is the premise of the legislation; also limiting client exposure to high-risk diversification strategies.

The recent Financial Industry Regulatory Authority (“FINRA”) announcement about federal enactment of a substantial piece of legislation that will likely delay close of some foreign direct investment (“FDI”) deals overseen by the Committee on Foreign Investment in the United States (“CFIUS”). The Act supports CFIUS regulatory response to the evolution in alternative trading system (“ATS”) transaction types. Under the new legislation, foreign investors will be responsible for filing mandatory “declarations” with description of transactions prior to close or transfer to an estate or trust; and payment of a filing fee of up to $300,000 per transaction.  

CIFIUS Oversight Expanded

Federal enactment of the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) on August 13, 2018 expands the jurisdictional powers of CFIUS responsible for oversight of foreign direct investment (“FDI”) made by investors from abroad. FIRRMA establishes that ATS compliance with Securities and Exchange Commission (“SEC”) NMS Regulation, and Regulation SHO close out standards. The Act also stipulates ATS have the capability of identifying trading risks occurring in those systems to be compliant. Full implementation of the Act will come in effect after the adoption of near future ATS regulatory provisions required to impose compliance within the investment sector.

In New York, the law allows individuals to create what are known as “advanced directives” to help ensure that person’s end of life decisions are carried out in the event he or she is incapacitated or otherwise unable to make that choice. Advance directives are important for any individual, including young people, concerned about the medical state they may be left in following a serious accident, adverse medical event, or cognitive impairment brought on by alzheimer’s disease or dementia.

One of the three end of life directives legally recognized by New York law is the health care proxy which allows someone to appoint an agent to act on his or her behalf in cases where that person cannot make decisions for himself or herself. Health care proxies can be created using standard forms available from the New York State Department of Health and take effect when two doctors determine the testator is incapacitated.

Health care proxies can be either permanent or temporary, depending on the type of situation laid out in the documents. For example, a temporary health care proxy would ideal for someone going under general anesthesia and allow the proxy to make decisions quickly, if necessary. On the other hand, permanent health care proxies may be better suited for those facing long term risks due to dementia or alzheimer’s.

The intent to commission, conspire to commission, or commission of a criminal act through intimidation, coercion, or solicitation of another for “racketeering activity” as defined by the  Racketeer Influenced and Corrupt Organization (RICO) Act  is illegal in New York. The RICO Act prohibits enterprises, including family businesses, from fraudulent and criminal racketeering activities while conducting interstate trade or foreign commerce. The costs associated with a RICO criminal proceeding can lead to excessive fees and the loss of an enterprise, including estate or trust held assets of a family business and its proceeds.  

A Lost Inheritance?

August 14, 2018 a federal US Court of Appeals declined to exercise supplemental jurisdiction over a Connecticut Superior Court decision denying Virginia A. D’Addario damages for beneficiary rights to her mother’s estate inheritance coinciding with the conviction of her sibling, David D’Addario in a RICO violation case (D’Addario v. D’Addario, No. 17-1162 (2d Cir. 2018). The Second Circuit appellate court instead vacated and remanded the case, upholding her claim of legal expenses incurred in pursuance of complaint against her brother and the other RICO defendants; yet rested a claim for full distribution of estate assets under her name was not necessary as RICO losses were speculative; and the estate was not closed.