New York Estate Planning & Elder Law Blog

The Intellectual Property Rights of Estates

Published on: June 5, 2018 | by Ettinger Law Firm

When Michael Jackson’s estate filed suit against ABC Inc. and the Walt Disney Company in May 2018, the world viewed the consequences to unauthorized use of the late celebrity musician’s intellectual property (IP). The estate currently holds all copyright to Jackson’s songs and music video work. The thirty works which the estate owns full rights to were included as part of a two-hour made for television documentary about the artist. Attorney representation in the lawsuit argues that the estate was never approached about license of Jackson’s material for use. The defending parties in the case maintain infringement of the estate’s rights to the property never took place; countering “fair use” of material already in circulation within the media.

Copyright, Control, Contestation

According to New York law, rights to copyright ownership continue as estate rights after a decedent has passed. A gift or bequest provides an executor or trustee explicit instructions for copyright(s) licensing, use, and distribution. Intellectual property transferred to an estate or trust after registered with the United States Patent and Trademark Office (“USPTO”) entitles a registrant continued rights to that work seventy (70) to one hundred twenty (120) years after death depending on type of work, and existing distribution or installation in the public domain.

How Spousal Rollover IRAs Allow Estate Holder to Reduce Required Minimum Distribution from a Defined Contribution Plan

Published on: June 1, 2018 | by Ettinger Law Firm

Depending on the terms and conditions of a defined contribution plan, a participant may elect to extend the tax-deductible life of those assets by transferring them to an estate or trust prior to death. A key incentive for extending the distribution period of defined contribution plan assets is transfer of tax-deductible eligibility to beneficiaries of an estate or trust. Surviving spouses can consider a Spousal Rollover Independent Retirement Account (“IRA”) to shelter beneficiary distribution of those assets after the death of a defined contribution plan participant.

Required Minimum Distributions

The ratio of required minimum distributions (“RMDs”) from a defined contribution plan is generally more favorable in treatment during an estate holder’s lifetime. RMDs can be calculated during a participant’s lifetime, and initially based on a distribution period specified by the Uniform Lifetime Table.

“Unified Credit” Exemption Rules for Estate, Gift, and Formula Bequest Transfers

Published on: May 27, 2018 | by Ettinger Law Firm

With the enactment of the U.S. federal Tax Cuts and Jobs Act of 2017 (“Tax Act”) estate and gift transfers became more attractive in the planning of trusts (Pub. L 115-97). The unified credit exemption accorded under the Act, offers a global elimination of transfer tax on a set level of asset holdings gifted or transferred by an individual decedent. The rule change, however, reduces the availability of federal estate tax exemption for gifts and transfers not eligible under the Act. Generation-skipping tax exemption per decedent remains separate from the unified credit exemption from gift and estate taxes.

New IRS Tax Exemption Rules

As of January 1, 2018, the IRS raised tax exemption for gift and estate transfer amounts to 11,180,000 for single individuals, and $22,360,000 for married couples. This is an increase from 2017 levels from $5,490,000 for single individuals, and $10,980,000 for married couples. Modifications of the law before January 1, 2026 are possible, and estate planners are advised to take advantage of the latest exemptions as part of trust planning strategies in advance.

New York End-of-Life Agency Allows Refusal of Food and Water Directive

Published on: May 24, 2018 | by Ettinger Law Firm

Recently, the board for End Of Life Choices New York approved an aggressive new document that would allow individuals to stipulate in advance that they may refuse food and water should they develop dementia at some point. The goal of the directive is to allow individuals to speed up their death in late-stage dementia, if they so choose.

Despite being considered a terminal illness, states that already have end of life directives in place do not have laws that cover the condition, putting the new policy into uncharted ethical waters that have not been explored. The move comes as patients across New York and the rest of the country seek alternative options to address the very real possibility that they may become incapacitated with a severely debilitating condition.

The new document would allow patients one of two options should they find themselves in an assisted living situation with dementia. The first would allow patients to accept so-called comfort feeding by providing oral food and water if they patient appears willing to accept the nourishment. The second, would stipulate that the patient would receive no food or water, even if he or she appears to accept the feedings during the final stages of dementia.

HHS Secretary Asks Former CVS Executive to Help Agency Lower Drug Prices

Published on: May 20, 2018 | by Ettinger Law Firm

Health and Human Services Secretary Alex Azar recently tapped former CVS executive Daniel Best to lead the agency’s effort to help lower drug prices for millions of Americans on Medicare coverage. Best was most recently a vice president of industry relations for the company’s Medicare Part D business and included CVS’s prescription drug plans, Medicare Part D plans and other clients.

“Daniel Best recognizes what President Trump and I, and every American know: prescription drug prices are too high,” Azar said in a statement announcing the appointment. “He has the deep experience necessary to design and enact reforms to lower the price of medicines that help Americans live healthier and longer lives.”

At a March 19 speech in Manchester, New Hampshire, President Donald Trump reaffirmed his pledge to lower prescription drug prices. “If you compare our drug prices to other countries in the world, in some cases it’s many times higher for the exact same pill or whatever it is, in the exact same package made in the exact same plant,” President Trump said during the speech. “We’re going to change that.”

CMS Issues New ID Cards, Announces Increased Payments to Private Plans

Published on: May 17, 2018 | by Ettinger Law Firm

The Centers for Medicare and Medicaid Studies (CMS) recently made a pair of announcements regarding changes to some of the important services the agency offers to millions of seniors across the country. Both of which aim to improve customer experience for CMS enrollees and help combat the threat of identity theft against those seeking vital medical treatments paid for in part by the federal government.

To help protect seniors from identity theft, CMS has begun phasing in new Medicare cards that no longer display enrollees’ Social Security numbers. Pennsylvania residents will be among the first to receive the new cards that assign each person a randomly generated eleven-digit number.

Social Security numbers are vital for accessing key financial information, medical records, and legal documents and should a Medicare enrollee’s card fall into the wrong hands, it could result in a serious case of identity theft. The new cards are tied directly to existing accounts so those who receive the new cards will have all their medical information will still be available with their doctors.

Connecticut Man’s Challenge to Still Living Father’s Estate Fails

Published on: May 14, 2018 | by Ettinger Law Firm

A federal court in Connecticut recently dismissed a lawsuit brought by a Connecticut man who felt jilted after being excluded from his still-living father’s estate on the grounds the plaintiff had yet to suffer any actual injury. The case is a cautionary tale for both testators and heirs in situations where familial tensions can manifest themselves into lengthy and expensive court battles that may end up doing little to resolve tensions.

The petitioner in this case filed suit against his father, sisters, and PNC Bank which was acting as the trustee to the father’s living trust. The petitioner alleged his sister, who was acting as the testator’s health care proxy and using a general power of attorney to make financial decisions, asserted undue influence on the testator to exclude him from the estate.

Unfortunately for the plaintiff in the case, the federal judge ruled that his lawsuit failed to live up to the basic principles of when and why courts can hear cases. The judge determined that because the plaintiff’s father was still living and he had yet to be excluded from any expected inheritance, the testator’s last will and testament could not be invalidated as of yet.

What are the Legal Rules to Estate Investment Robo-advisory Services?

Published on: May 12, 2018 | by Ettinger Law Firm

Robo-advisers are transforming the investment industry, including the estate advisory and planning segment. Algorithms present cost-effectiveness that translates to further savings for the investor by eliminating the “middleman.” Human advisers charge significantly more than these alternative wealth management services, making traditional services less appealing of an option for younger investors sold on technology and rapid returns. How does this bode for retirement investors, and especially the estate planning segment of the market?

Robo-Adviser Investment Services

The more complex the management of a fund, product, or portfolio of services, the less likely an investor will be fully-satisfied with robo-advisory services one hundred percent of the time. Major investment firms piloting robo platform as part of their consumer services offerings, are finding artificial intelligence to be a support feature rather than an obstacle to delivery of high-quality investment advisory services. Robo-advisers offer the kind of on-demand attention that a “living trust” requires; collecting the current financial position and investing goals of a client without the imposition of human delays. According to industry experts, the best is yet to come. Now that robo-advisers are capable of handling sophisticated tasks like retirement and estate planning, both investors and human advisers benefit from an obsolescence of human error. It is perhaps for this reason that legislators have been laissez faire in creation of new regulatory rules associated with robo-adviser practice.

The Law of Incapacitated Parties and Probate

Published on: May 9, 2018 | by Ettinger Law Firm

When estate planning clients require a legal guardian to perform power of attorney, the process can be complicated. This is especially true when rules of guardianship are involved in distribution of revocable trust assets for purposes of medical care or other life-sustaining care need of the trustee. In some states, like New York, state law allows for the legal guardians of incapacitated parties to withdraw life-sustaining therapies if the former deems the patient’s wishes are met with the decision. While informed consent laws provide for guardian power of attorney in meeting those medical treatment requirements, the payment for those professional services may be beyond a patient’s means without disbursement of convertible trust assets.

Guardianship and Estate Planning

The following is a checklist for representation of a trustee who is an incapacitated party in the estate planning process:

Doctrine of Revocation: Estate planning and the Rules to Spousal Inheritance Post-divorce in New York

Published on: May 7, 2018 | by Ettinger Law Firm

At the turn of the 21st century, divorce or annulment of a marriage did not automatically revoke any revocable disposition or appointment of property from an ex-spouse at time of a decedent’s death in New York. Since 2008, with the amendment of the. Existing Estates, Powers and Trusts Law, EPTL 5-1.4, estate law rules to divorce or annulment revocation of inheritance applies to any revocable disposition or appointment of property assigned a former Spouse as a designated beneficiary. New York Law EPTL 5-1.4 revokes any nomination of an ex-spouse as trust fiduciary, executor, agent, guardian, representative, trustee, or attorney-in-fact. Under the prior divorce and annulment revocation rule, the legal termination of a marriage agreement did not automatically revoke an ex-spouse’s power of attorney, or most revocable dispositions (“testamentary substitutes”), including joint tenancies (i.e. joint banking accounts), lifetime revocable trusts, or insurance policies (IN RE: The Estate of Joseph SUGG, Deceased. No. 2013–5055/B, Decided: June 29, 2015).

Amend, Restate or Execute a New Will?

When a couple divorces, changes to a will must be effectuated to an estate. Amendment, restatement, or execution of a new will is required under current New York estate law. Estate planning documents can be changed with the assistance of a licensed attorney experienced in matters of trust document modification and probate litigation. A client undergoing divorce is advised to review existing estate planning documentation at the commencement of a divorce, and at time of finalization. Estate law rules to entitlements provide that a soon to become ex-spouse will automatically lose named beneficiary status in a will or revocable trust. In matters where there is a judicial separation, annulment or final decree of divorce in process, revocation occurs only at the end of those proceedings, regardless of couple or court determined outcome.