New York Trusts & Estates

Is Your Estate Plan Working for You?  In White Plains, New York

Remember that estate planning is not just for the wealthy, and now that the federal exemption is so high, not just for the billionaires either. Estate planning is also much more than a will.

Your estate plan has a lot of work to do for you, both while you are alive and for your family when you have passed. A good article that explains it all comes from Investopedia, “How to Get Your Estate Plan on Track.” There are three key objectives that your estate plan needs to do:

• End-of-life health care decisions are documented in a legally binding document;
• Assets will be distributed according to your instructions, rather than state law; and
• Loved ones avoid the time, expense and stress of the probate process.

A basic estate plan should include advanced directives, such as a health care proxy and power of attorney, will (perhaps a “pour-over” will and a revocable living trust). If you want to ensure that you have a valid will that follows the laws of your state, avoid pitfalls and best protect your family, hire an experienced estate planning attorney to make certain you have professional legal knowledge, when considering the nuances of trusts and estate law.

A health care proxy, also called a health care power of attorney, accomplishes two goals. First, it authorizes a designated individual to make health care decisions on your behalf, if you are ill or otherwise can’t make these decisions on your own. Without this, a judge would decide who has this authority in those circumstances. A health care proxy also allows you to document specific decisions for your health care, such as end-of-life decisions.

Your estate plan should also include a power of attorney, which allows you to authorize a person to make financial decisions in your stead. It’s used, if you’re not in a position to handle such affairs on your own (like a health care proxy).

Probate is the legal process where the court approves the distribution of your assets and gives creditors an opportunity to collect your debts. Going through probate can be stressful for your heirs. There are costs incurred and procedures that must be followed before assets are distributed. The probate process can take months and can be dragged out for more than a year in some situations.

Probate can be avoided with the right planning. For example, you can title certain assets like bank accounts, brokerage accounts, and property, so they pass directly by operation of law to your heirs, and bypass probate. Retirement assets are required to have beneficiaries and likewise will bypass probate. Make sure to have contingent beneficiaries, so these assets continue to bypass probate, if your beneficiaries predecease you.

For people with minor children, designating their potential guardian is one of the most critical elements of an estate plan. It is part of your will in most states. Remember, if you don’t name guardians in your will, and both you and your spouse pass away, the court will appoint a guardian, which may not be ideal for your children.

There are other unique situations that may warrant creating additional documentation and planning. These include having a business, adult children from a previous marriage, a potential liability against your estate or a special needs child. In any of these situations, you’ll definitely need to review your circumstances with an attorney.

Those assets held jointly (your home perhaps) and assets that have a beneficiary (life insurance) aren’t included in the will. Each state has its own rules about where the property goes, when a person dies without a will.

Finally, remember that estate plans are not “one and done” documents. Just as your life changes, your estate plan needs to change. Tax laws also change, and anytime there is a big tax law change, you’ll need to be sure that your estate plan still achieves your desired goals. You might not need a revision, but you should have a review every few years.

An estate planning attorney in your state will be able to point you and your estate plan in the right direction.

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I Was Left Out of a Will—What Can I Do? in White Plains, New York

It’s a stinging feeling. To be left out of a will feels like a rebuke from beyond the grave. You’ll need to set aside your emotions and consider your options, which may be limited.

Contested wills are not an easy battle. There are time limits to taking action. An estate planning attorney will be able to advise you on the requirements of your state. Investopedia’s article, “What To Do When You're Left Out Of A Will,” explains that you’ll need to be able to prove outright fraud, diminished mental capacity or coercion to have a will's terms dismissed.

Before making a federal case out of it, cool down for a few days and think things through. If you aren’t a family member and were never named in a previous will, you can’t contest the will. If the deceased talked to you about an inheritance before, write down as much as you can remember and estimate the dollar value (whether in money or possessions). If it was never discussed but was implied, you’ll need to give a high and a low estimate on what you could have reasonably received based on your knowledge of the estate. If this amount doesn’t cover your legal fees, forget it. You may even walk away, if it’s twice as much as the retainer because some estate battles cost more in legal fees than the inheritance. Again, consider this carefully.

The person who creates the will has the final word on who is and who is not in the will. If you have reason to believe that the will has changed, maybe because the person was under duress or suffering from diminished mental capacity, you can try to find out the details. You can ask the executor for the current will, any previous versions and a list of assets.

A sharp executor will compare copies of the will and note any significant changes. Therefore, it’s possible that a notice from the executor will be your first signal that you were removed from the will. If you aren’t told before the will goes to probate, you’ll be able to get a copy from the probate court. In addition, you’ll be told how long you have to contest the will. Each state has different rules and time limits, so ask a local estate planning attorney to help you get the copy and file the contest.

To contest the will, you need a valid reason. You need to reasonably prove that the testator lacked the mental capacity to understand what he was doing when the current will was signed, was pressured into changing it or that the will fails to meet state requirements and isn’t legal.

Your attorney will honestly tell you if you have a winnable case on these grounds. If you don't have grounds, there’s still a chance you can make a claim on the estate. For instance, if you did unpaid work for the testator, you may be able to claim costs. Again, look at the value of the claim versus the costs of moving forward.

With sufficient grounds, your attorney will file a contest against the will with the objective of invalidating the current will and enforcing a previous will that lists you as a beneficiary. If you’ve been left out of several revisions of the will, your chances of winning the dispute will be less because multiple wills must be invalidated. The burden of proof is on you, so be ready for a tough fight.

Instead of a court battle that will deplete your finances and those of the estate in legal costs, your attorney may be able to get the estate to agree to mediation. Mediation may be a better and faster resolution than a lengthy court battle.

Keep in mind that an estate contest comes with a great deal of emotional stress and could have a big impact on your relationship with family members or friends of the deceased. It is not easy to be left out of a will, but a realistic look at the financial and emotional cost of a battle that you may or may not win should be considered before throwing yourself into an estate contest.

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What Will Happen to Paul Allen’s Vast Fortune? In New City, New York

The co-founder of Microsoft serves as an excellent example of advance planning, maintaining privacy and creating a legacy.

Though a trust established years ago and several companies, Paul Allen began building his legacy of philanthropy long before his death. His last will and testament was a simple six-page document, according to an article from The Seattle Times, “Paul Allen’s will sheds little light on what will happen to estate.”

The will was filed with King County on October 24—the same day his sister Jody announced she was named the executor and trustee of his estate.

Allen died on October 15 at age 65, from complications of non-Hodgkin lymphoma.

He was a Microsoft co-founder, who operated a long list of business and philanthropic initiatives that helped shape the Puget Sound region. His business concerns included owning the Seattle Seahawks, donating significantly to the arts community and scientific research, and running the multifaceted Vulcan Inc., which reshaped the real-estate landscape of South Lake Union.

Allen’s will places his assets into a 25-year-old living trust, where their disposition is not expected to be made public. It is important to remember that wills are public records, but trusts are not.

Forbes estimated his wealth at roughly $20 billion.

The will also sets out a list of successors, if Jody Allen declines or is unable to serve as executor.

Jody can appoint someone, or it would next fall to Nancy Peretsman, the managing director of investment firm Allen & Co., which is not connected to Allen. After him, the duty would fall to lawyers Allen Israel and Nicholas Saggese.

Jody Allen said in October that she “will do all that I can to ensure that Paul’s vision is realized, not just for years, but for generations.”

Many tributes to Allen have taken place since his passing. In early November, buildings in Seattle and throughout the state were lit up in blue, his favorite color and the color of the Seattle Seahawks, the football team he owned.

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Spiderman Creator Stan Lee’s Estate Needs Untangling in White Plains, New York

It’s going to take more than a super hero to unravel the mess that Stan Lee left behind.

The passing of Stan Lee, famed Marvel Comics publisher and chairman, was sad for his legions of fans. For his 68-year-old daughter J.C., there’s grief and a challenging estate to be settled. His last years were hard, with ill health, the passing of his wife of nearly 70 years and accusations of sexual harassment from nurses and home aides.

In addition, Lee reportedly said that $1.4 million dollars was missing from his bank accounts and that a large chunk of the money had been used to purchase a condo.

MarketWatch’s recent article, “Stan Lee’s tangled web of estate planning ­ and how to avoid it in your own life,” reports that Lee had also hired and fired several business managers and attorneys in this time.

“I learned later on in life, you need advisors, if you’re making any money at all,” he told the Daily Beast in a 2018 interview. He also remarked that he’d done much of his own money management at the start of his career.

“But then, a little money started coming in, and I realized I needed help. And I needed people I could trust. And I had made some big mistakes. And my first bunch of people were people that I shouldn’t have trusted.”

It’s not known at this point, if Lee had a will or any trusts in place. If he did not, then he’s joining other late celebrities like performers Aretha Franklin and Prince who failed to draft these documents. As a result, their heirs and potential beneficiaries have had to go to court to straighten things out.

Keeping track of an estate plan can become harder as a person ages, because he or she could suffer cognitive decline, or a professional or family member may think he or she is suffering from this. Stan Lee was the subject of this type of inquiry: in February, he signed a document declaring that his daughter spent too much money, yelled at him, and befriended three men who wanted to take advantage of him, the Hollywood Reporter reported. However, a few days later, Lee took it back.

Seniors can become get less confident in what they’re doing, and they are more susceptible to the influence of others who may not have the best of intentions. However, you can easily create an estate plan with which you’re comfortable, with the help of an experienced estate panning attorney.

A big rat’s nest that will need to be addressed by Lee’s daughter will be dealing with the many business documents that may be floating around from his current and past business managers and attorneys. To avoid this, work with an estate planning attorney and ask some specific questions, such as:

• How do we organize and simplify my assets?
• Will we need a trust, and how will they be managed?
• How will you coordinate with my executor and/or attorney-in-fact while I’m well, and after I’m sick or gone?
• How do you determine cognitive decline in an individual? What would you do, if you believed my ability to answer questions and manage my funds was diminished? What would you do once you’ve made this decision?
• How often will we review my beneficiary designations and estate planning documents?
• How should we coordinate a team of financial and legal professionals to make sure all are working towards the same goals?
• How much or how little information about my estate should be discussed with family members?

 

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How Do Trust Funds Work? In New City, New York

Trusts serve a variety of functions in estate planning, and they aren’t just for wealthy people.

Trusts can be simple, or they can be complex, depending on what type of trust is being considered and how they are structured. Trusts should be set up by an estate planning attorney, who is familiar with asset ownership and how trusts impact inheritances and taxes.

U.S. News & World Report’s recent article, “Setting Up a Trust Fund,” explains that a trust fund refers to a fund made up of assets, like stocks, cash, real estate, mutual bonds, collectibles, or even a business, that are distributed after a death. The person setting up a trust fund is called the grantor, and the person, people or organization(s) receiving the assets are known as the beneficiaries. The person the grantor names to ensure that his or her wishes are carried out is the trustee.

While this may sound a lot like drawing up a will, they're two different legal vehicles.

Trust funds have several benefits. A trust can reduce estate and gift taxes and keep assets safe. With a trust fund, you can establish rules on how beneficiaries spend the money and assets allocated through provisions. For example, a trust can be created to guarantee that your money will only be used for a specific purpose, like for college or starting a business.

A trust fund can also be set up for minor children to distribute assets to over time, such as when they reach ages 25, 35 and 45. A special needs trust can be used for children with special needs to protect their eligibility for government benefits.

At the outset, you need to determine the purpose of the trust because there are many types of trusts. To choose the best option, talk to an experienced estate planning attorney, who will understand the steps you'll need to take, like registering the trust with the IRS, transferring assets to the trust fund and ensuring that all paperwork is correct. Trust law varies according to state, so that’s another reason to engage a local legal expert.

Next, you'll need to name a trustee. Choose someone who’s reliable and level-headed. You can also go with a bank or trust company to be your trust fund's trustee, but they may charge around 1% of the trust's assets a year to manage the funds. If you go with a family member or friend, also choose a successor in case something happens to your primary trustee.

It’s not uncommon for people to have a trust written and then forget to add their assets to the fund. If that happens, the estate may still have to go through probate.

It’s better to create some general guidelines and have confidence in the trustee to carry out your wishes. Placing too many restrictions on a trustee will inhibit their ability to be effective on your behalf.

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300,000 Americans to Gain Medicaid Benefits in White Plains, New York

Most of those who will be eligible in 2019 are over age 50 and would otherwise have no healthcare.

Ballot measures in three states—Idaho, Nebraska, and Utah—will extend the federal- and state-funded healthcare program to allow access to approximately three hundred thousand low-income Americans.

AARP’s recent article, “Medicaid to Expand in 3 States,” reports that with the passage of ballot measures in those three states, 37 states, including DC, have now expanded the Medicaid program, since the Affordable Care Act (ACA) created the opportunity to offer more people coverage.

The success of the three ballot measures “is a recognition that Medicaid plays an important role in our society for those who are in need and that it’s an issue that has changed a great deal over the past five or six years from a political standpoint,” says John Hishta, AARP senior vice president for campaigns. “I think the voters have led the way in some of these states.”

Montana voters rejected a measure that would have increased tobacco taxes on cigarettes and taxed other tobacco products to pay for the state’s share of Medicaid expansion, veterans’ mental health, and home- and community-based services. Nearly 130,000 low-income residents in that state may now lose their Medicaid eligibility in 2019, if the state Legislature doesn’t act.

The mid-term election results in three other states could have implications for their Medicaid programs as well. Maine’s Democratic Governor-elect Janet Mills supports expanding Medicaid. The state’s voters decided in 2017 to expand the program, but the current governor, Republican Paul LePage, refused to implement the expansion.

Kansas’ Democrat Governor-elect Laura Kelly stated in the campaign that she’d push for legislation to expand Medicaid during her first year in office. In 2017 the Republican-controlled Kansas House of Representatives and Senate passed legislation to extend Medicaid, but the current Governor Sam Brownback vetoed it. The Legislature couldn’t override his veto.

Wisconsin’s Governor-elect Tony Evers says he wants to expand Medicaid, which would provide coverage to at least an additional 80,000 people in that state.

Most of the people who apply for Medicaid work but do not earn enough to cannot afford health insurance. The program allows people between 50—64 years of age to get health care coverage.

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Can I Trade Options in My Roth IRA? in White Plains, New York

There are opportunities to trade options using Roth IRAs, but investors must follow many of the rules that apply to traditional IRAs. That includes restrictions on withdrawals and limitations on certain trading strategies and the types of securities that can be traded.

From the time they were introduced, Roth IRAs were quickly adopted by many Americans. The appealing features: you pay taxes on contributions, but generally not on withdrawals, and not on capital gains in the future. It’s a good option for those who expect taxes to be higher after retirement. However, there’s even more that you can do with a Roth IRA.

In Investopedia’s article, “Trading Options in Roth IRAs,” the use of options in Roth IRAs and some important considerations for investors are examined. Unlike stocks themselves, options can lose their entire value if the underlying security price doesn’t reach the strike price. This makes them much more risky than the traditional stocks, bonds, or mutual funds that are typically in Roth IRA retirement accounts.

Although risky, there are situations when they might be good for a retirement account. Put options can be used to hedge a long stock position against short-term risks, by locking in the right to sell at a certain price. Covered call option strategies can be used to generate income, if an investor is okay selling her stock.

Many of the riskier strategies in options aren’t permitted in Roth IRAs, because retirement accounts are designed to help individuals save for retirement—not become a tax shelter for risky speculation. Investors should understand these restrictions to avoid issues that could have potentially costly consequences. IRS Publication 590 has several of these prohibited transactions for Roth IRAs. The most important is that funds or assets in a Roth IRA can’t be used as security for a loan. Since it uses account funds or assets as collateral by definition, margin trading usually isn’t allowed in Roth IRAs to comply with the IRS’ tax rules and avoid any penalties.

Roth IRAs also have contribution limits that may prevent the depositing of funds to make up for a margin call, placing more restrictions on the use of margin in these accounts. In addition, the IRS rules imply that many different strategies are off-limits, such as call front spreads, VIX calendar spreads and short combos. These all involve the use of margin.

It’s also important to note that different brokers have different regulations, when it comes to what options trades are permitted in a Roth IRA. The brokers permitting some of these strategies, have restricted margin accounts, where some trades that traditionally require margin are permitted on a limited basis.

A word of caution: these strategies depends on separate approvals for certain types of options trades, and some may not be permitted. Traders need to have substantial knowledge and experience to avoid taking on too much risk. Remember that Roth IRAs were not designed for active trading. An experienced investor may be able to use stock options to hedge their portfolios against losses, or generate income. However, if you are using your Roth IRA funds as a speculative tool, you may want professional input to ensure that you are not creating problems with the IRS, or putting your retirement at risk.

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Funeral Instructions in Michigan Get an Assist from New Law in New City, New York

Now you can direct your funeral from the great beyond, if you live in the Wolverine State.

Here’s a concept that is perfect for people who like to be in charge: about two years ago, Michigan enacted a law that lets you name a funeral representative, a person who is empowered by law to make decisions about your memorial and where your remains, cremated or not, will rest.

The Detroit Free Press’ recent article, “Law helps ensure your family follows your funeral wishes in Michigan,” suggests that a funeral representative can make sure there won’t be a disagreement among family members about funeral planning.

The issue arose recently when a Grosse Pointe Park funeral home attempted to return cremated remains left at Cantrell Funeral Home in Detroit to families of the deceased. Some family members said they would’ve claimed them before, but they weren't next of kin. In that case, a funeral representative could have settled a family fight over where the person would be buried. The deceased, who remarried later in life, made plans to be buried next to his deceased first wife. However, his new spouse wanted him to be buried in another cemetery. Her wishes prevailed, creating hard feelings for his survivors.

Michigan’s law, which took effect two years ago, recognizes the deceased’s representative authority to make decisions about the funeral and resting place after death. This agent can solve any issues and ease the stress among surviving relatives.

When a person agrees to be a rep, they should understand that it's a significant responsibility which includes making certain the deceased's funeral expenses are paid. In addition, consider this valuable information about funeral representatives:

A funeral representative is an individual who, under state law, is "designated to have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body." This entails all decisions about cremation and "the right to possess cremated remains of the decedent." A representative signs an acknowledgement of duties and the authority is only effective after death and can’t be assigned to someone else. The order for someone having legal authority to make decisions is a person designated under federal law, usually if the person is serving in the military; your designated state funeral representative; a surviving spouse, adult children, adult grandchildren, parents, grandparents and then siblings.

A funeral representative can be designated in your will, health care power of attorney or a separate document that has two witnesses or is notarized. Funeral homes in the state should have a document that can be filled out designating a representative. Unless the person is a spouse or close relative, the law prohibits these individuals from being named a representative:

• a licensed health professional;
• an employee of a health or veterans’ facility that provided you care;
• an officer or employee of a funeral home, crematory or cemetery providing you services; or
• anyone charged with murdering you.

This authorization can be revoked with a written notice that is notarized or has two witnesses. The law automatically revokes the power to a named ex-spouse.

If you do not live in Michigan and you want to be sure that certain things happen with your memorial service, know where you wish to be buried or what you want to have happen with your remains if you want to be cremated, speak with an estate planning attorney to document your wishes. Speak with family members also, so they know what you want.

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Can Beneficiary Designations Help Simplify the Estate Planning Process? in White Plains, New York

Often overlooked, the beneficiary designation can help move assets directly to heirs without going through the probate process.

Many accounts and financial products allow the owner or investor to designate a beneficiary, who will receive the asset directly when the owner passes away. This is something that most of us encounter when we open a bank account, purchase an insurance policy or start a retirement savings plan, according to the article, “A simple way to simplify estate planning,” appearing in the Tupelo (MS) Daily Journal.

The type of assets that permit beneficiary designations also include annuities, transfer-on-death investment accounts, pay-on-death bank accounts, stock options and executive deferred compensation plans.

Remembering who the beneficiary is on these accounts can be difficult. However, when you consider the consequences of having the incorrect person named on the asset, it’s well worth the effort. Due to the importance of the beneficiary designation, note these reminders:

• Designate beneficiaries. Without this, assets can be tied up in probate court, resulting in delays, costs and unfavorable tax treatment.
• List a primary and contingent beneficiary. It is common to have a spouse as primary beneficiary, and a child as contingent, which lets the asset pass to the child, if the spouse has also passed away. You can also name a charity you support to be the contingent.
• Keep things up-to-date. Any time there’s a birth, adoption, death, marriage or divorce, you should review your accounts and polices.
• Go through the instructions on the form before signing it. Beneficiary forms can vary, so review each one.
• Coordinate your beneficiary designations with your will or trust documents. If they don’t, it could cause the probate process to be delayed.
• Work with an estate planning attorney before naming a trust as a beneficiary. Tax consequences may be different for a trust than for an individual, so some situations make a trust a wise option.
• Know the tax consequences of naming a beneficiary of a particular asset. That’s because every asset does not have the same tax treatment.

Far too many people learn the hard way, that whatever is on the beneficiary designation determines who receives the asset, no matter what is in your will. Make a list of all of assets that have this designation and review it when you review your estate plan. If you don’t have a contingency beneficiary, add that as well. Your estate planning attorney will be able to help you, if you run into any questions and to ensure that your beneficiary designations align with your overall estate planning goals.

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Fitting a 529 Plan into Your Estate Plan in New City, New York

529 college savings plans are a great way to fund a college education and they can now also be used for other educational needs. However, they can also be part of your estate plan.

Before exploring a new use for a 529 plan, let’s start with how it has been traditionally used. A 529 is a college investment program, sponsored by state governments and administered by an investment company, as explained by the Cary Citizen in a recent article, “529s and Estate Planning: What’s the Connection?”

The investment options are generally mutual fund portfolios, age-based asset allocations that become more and more conservative, as the beneficiary gets closer to college age. Some plans also offer static portfolios, with predetermined allocations that stay consistent over time.

Withdrawals from a 529 are tax-free, provided they’re used for qualified college expenses. Nonqualified withdrawals are subject to ordinary income taxes and a 10% additional federal tax penalty. The good news is that the eligibility to contribute to a 529 plan isn’t restricted by age or income.

As far as your taxes, a contribution to a 529 plan is considered a completed gift from the contributor to the beneficiary named on the account. A contributor can, therefore, potentially reduce the size of her taxable estate using a 529 plan. Contributions can be up to $15,000 per beneficiary annually and $30,000 per beneficiary, if you contribute jointly with a spouse without any federal gift tax.

Along the same lines, if you’d like to decrease the size of your taxable estate more quickly, you can make five years’ worth of gifts in a single year, provided you don’t make any additional gifts to the beneficiaries for the remainder of that period. Therefore, you can accelerate your contributions and gift $75,000 per beneficiary as an individual or $150,000 per beneficiary, if done jointly with a spouse. However, if you use this strategy, a prorated portion of the contribution may be considered part of your estate, if you don’t live beyond the five-year period.

Whether you contribute annually or on an accelerated basis, a 529 plan can give you a lot of flexibility as part of your estate plan. For example, although the money in the account is considered a gift to the beneficiary, you still have control over how it’s invested. If the beneficiary doesn’t attend college, you can name a new beneficiary who’s a relative of the original beneficiary.

Many families find that they are facing both planning for retirement and saving for college at the same time.

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