New York Estate Planning & Elder Law Blog

Using Portability to Get the Most Out of your Estate Tax Exemptions

Published on: September 5, 2017 | by Ettinger Law Firm

One of the most common estate planning goals for high net worth married couples is to reduce their estate’s tax liability by taking full advantage of state and federal estate tax exemptions. The 2012 Tax Relief, Unemployment Reauthorization, and Job Creation Act (TRA) gave couples much more leeway to plan for their state through the portability of a deceased spouse’s unused estate tax exemption.

In 2017, the estate and gift tax exemption will be $5.49 million dollars for an individual, and just under $11 million for married couples, thanks to the 2012 Act. While there are a number of ways to properly implement the portability of estate and gift tax exemptions, one of the more common ways is to create a family trust where the assets of the first spouse to pass away will be placed in under the individual’s own gift and estate exemptions.

Without portability, couples can end up leaving millions of dollars in assets subject to taxation because of improper planning. Two of the most common reasons couples fail to properly use take advantage of gift and estate tax exemptions are unbalanced asset ownership or an inefficient estate plan.

Medicaid and Estate Planning

Published on: September 3, 2017 | by Ettinger Law Firm

For a long time, Medicaid has had the reputation of being a program that provides insurance and other benefits to poorer individuals throughout the United States. In some ways, recent contentious debates have deepened that image. However, a recent article from Business Insider points out that this is simply not true. In fact, Medicaid often plays a crucial role in estate planning for those in nursing homes or in need of various other forms of long-term care.

Medicaid and Long-Term Care

The article notes that the average price of long-term care options for senior citizens have risen approximately 19 percent since 2011. That is far greater than the amount of social security or pension increases that accompany the increase in these costs. Given that people are living longer lives and that the cost of long-term care is constantly on the rise, this should not be surprising. According to the article, about 28 percent of Medicaid funds are used to finance long-term care costs.

Know the Law: What is a Durable Power of Attorney?

Published on: September 2, 2017 | by Ettinger Law Firm

An important consideration in anyone’s estate plan is to consider appointing a trusted individual to make important health and financial decisions in any case where the testator may be incapacitated and unable to act in their best interest. One way to do this is to create a durable power of attorney in a living will which names another person as an agent or an “attorney in fact” to decide whether or not to continue with life support treatment and other important medical decisions.

In New York, Pub. Health Law §2980, et seq. Health Care Agent and Proxies details the powers of the attorney in fact, the legal requirements to create such an arrangement, when the agreement may be revoked, and the state to state applicability of the durable power of attorney. Specifically, the law allows the attorney in fact to make “Any decision to consent or refuse consent of any treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition.”

Health Law §2980 requires individuals to fill out Standard Form §2981 and name a competent adult to the position. Additionally, the form must be signed in front of two witnesses and indicate the principal wishes his or her agent be able to make healthcare decisions and that this authority begin when an attending physician decides to a medical degree of certainty the principle cannot act on behalf of himself or herself.

Creating a Succession Plan for Your Business

Published on: August 30, 2017 | by Ettinger Law Firm

If you are in sole proprietorship of your business, you have a number of options to hand over your company when it comes time to retirement or pass away unexpectedly. If you do not have partners in your business, you are generally within your right to hand over the entire company to any person you may see fit to do and avoid estate taxes up to a point if you plan ahead of time.

One option to hand over a business to another and avoid some state and federal gift taxes is to gradually gift over percentages to the benefactor overtime before you pass away. If you do die before the entire transfer is complete, the heir may be on the hook for exorbitant estate/gift taxes. Currently, the estate tax exemption is $5.49 million over the life of one individual and up to $11.98 million for couples.

If you do have partners and you would like to retire or sell you your stake in the company, you may consider writing a buy-sell agreement into the language of your partnership agreement. These buy-sell agreements may be mandatory with the full understanding you intend to sell of your stake in the company to another or they may allow only the right of first refusal for the partner to buy the stake or pass and allow an other interested party to buy in.

Tips for Choosing the Right Executor or Trustee

Published on: August 30, 2017 | by Ettinger Law Firm

Whether you are choosing an executor for your Last Will and Testament or a trustee for a trust you have established, it is clearly important to make the right decision. You want to choose someone trustworthy, responsible, and capable of carrying out the responsibilities being entrusted to them. That is often easier said than done, but the following tips adapted from the American Association of Retired Persons might be able to provide some guidance.

You Do Not Need an Expert

We all have a natural desire to want to work with the best when it comes to important matters. While experience in trusts and estates is beneficial, it is not required to properly and responsibly execute the duties associated with being an executor or trustee. Common sense can provide a solid foundation to perform these duties, and you may prefer a more intimate relationship with the person you are naming than you might get with a professional. In some situations, it may be best to choose a corporate trustee from an institution like a bank. However, many individuals can avoid doing this by selecting a reasonable person – which will also help you avoid the professional fee that may be associated with these services.

Treasury Department Announces End to myRA Retirement Savings Accounts

Published on: August 26, 2017 | by Ettinger Law Firm

Saving for retirement just became more difficult for thousands of Americans relying on the Treasury Department’s myRa retirement savings account as the agency recently announced it would wind down the program. In a statement released on the Treasury Department’s website, the agency said the $70 million in costs since 2014 became too costly to the taxpayer and could no longer justify the program’s expense.

“The myRA program was created to help low to middle income earners start saving for retirement. Unfortunately, there has been very little demand for the program, and the cost to taxpayers cannot be justified by the assets in the program. Fortunately, ample private sector solutions exist, which resulted in less appeal for myRA. We will be phasing out the myRA program over the coming months. We will be communicating frequently with participants to help facilitate a smooth transition to other investment opportunities,” said Jovita Carranza, U.S. Treasurer.

The myRA program functioned as a Roth IRA account with no fees, minimum balance, and non-deductable to help middle and lower income Americans without access to employer sponsored retirement plans like a 401(k) plan and save for their retirement. Participants under 50-years old could contribute up to $5,000 to their account every year while those 50 years and older could contribute up to $6,500.

Micro-Living and Your Estate Plan

Published on: August 26, 2017 | by Ettinger Law Firm

Among the many new trends emerging in a variety of places around the world is the idea of micro-living. The idea behind micro-living is to minimize the space you live in and consequently minimize associated costs, and potentially your impact on the environment. However, it is the reduction in cost that is most appealing to many people. Retirees are no exception to this, and a recent article from CNBC indicates that micro-living is becoming increasingly popular among elderly individuals looking to remain independent while minimizing their responsibilities and maximizing their savings potential.

Benefits of Micro-Living

Affectionately referred to in the article as “granny pods,” micro homes for senior citizens are typically several hundred square feet. This makes them small enough to fit in the backyards of most homes. These “granny pods” have all of the comforts of a normal home, just on a smaller scale. They allow senior citizens to maintain a sense of independence without having to actually move in with family or friends. This can be a welcome relief for both elderly individuals as well as their families that may not necessarily be looking to live together full-time. These micro homes typically have a bathroom, bedroom, kitchen, and potentially several other rooms depending on the size and experience you are looking for. They can be built to minimize obstacles that could be hazardous to older individuals, such as being built with flat floors to minimize the potential to trip or with modified showers to enable safer hygiene.

Limitations of Life Insurance

Published on: August 23, 2017 | by Ettinger Law Firm

Estate planning often involves discussions about investments and other forms of financial planning. Inevitably, life insurance will likely enter the discussion as well. However, when considering life insurance as an estate planning strategy, it is important to understand the limitations that come with life insurance. These limitations often depend on the type of policy you are considering, but reviewing your life insurance options with your estate planning attorney can help you make an informed decision about what – if any – life insurance is right for you.

Choosing the Right Policy

There are several different types of life insurance policies available, most falling into the category of either whole-life or term life insurance. Deciding which type of policy will best meet your needs and goals is an important first step into understanding exactly where life insurance fits into your estate plan.

What is Considered a Small Estate in New York Probate Court?

Published on: August 22, 2017 | by Ettinger Law Firm

In New York, estates with real property valued at less than $30,000 are considered “small estates” and may be able to pass through probate court much more quickly than larger estates, if the executor handles the process correctly. Although small estates can pass through a simplified probate process, executors will still need to perform some of the duties as if he or she were overseeing a much larger estate and will even need to file certain paperwork with the court.

Ordinarily, probate proceedings in New York Surrogate Courts can be lengthy and time consuming processes but with a simplified estate, moving the last will and testament through court can be much more expedient. Although the asset threshold may appear very small, as even a modest mode and possessions will easily be valued at well over $30,000, there are scenarios where even seemingly large estates could pass through.

Only property solely owned by the deceased counts towards the small estate threshold. This means assets like homes, vehicles, and family businesses in two people’s names will not count towards the $30,000 limit. This can be especially helpful when there is a surviving spouse named to the title of homes and real estate.

Basics of International Wills

Published on: August 20, 2017 | by Ettinger Law Firm

Recently, we have written on the intricacies of estate planning when an individual owns foreign property. If you own international property or have other estate assets that span two or more countries, one of the most effective ways to ensure that your estate is properly administered according to your wishes is to make sure that you have an internationally recognized Last Will and Testament.

Understanding International Wills

For the most part, Wills are essentially the same the world over. In jurisdictions that allow recognition of a Will, such documents typically need to meet the same requirements: