The Electronic Age and Estate Planning

Senior Couple SeriesThe world is changing every single day. In terms of technology it seems that every year, phones, televisions and electronic devices are continuing to evolve. With all this technology, many people actually have valuable “electronic assets”. These assets may include website domain names, accounts with email providers, Facebook, Amazon and many other accounts. Just like any asset if someone purchases and owns a domain name, this becomes their private property. Most electronic accounts such as Gmail work the same way.

As well as these assets, your banking information, and common banking accounts also use websites that may store financial and extremely personal data. If you pass away it is important that someone handles all of these electronic accounts properly. You may want to save treasured photos stored away, or you may want someone to log into your email in order to notify friends and contacts.

Doing nothing in terms of these electronic assets will certainly result in your domain names expiring and email and online accounts becoming deleted. Finances and memorable data are your assets and it is important everything is planned out accordingly.

Seeking the help of an experienced estate planning attorney is crucial in handling all your assets.

What is Power of Attorney?

Estate Planning is a complex and in-depth process that is more than just preparing and disposing of your estate when you pass away. There are important questions and steps that must be asked and addressed. One of those steps that must be addressed is who should be able to take care of your finances in the event of your incapacity.

What is Power of attorney?

A power of attorney is a very powerful document that allows your agent, the person you designate, to act as you in a certain financial matter. If the power of attorney is durable it will continue to be effective even in the event of your incapacity. The amount of power given away is truly determined by the principal. The agent can be given power for a specific issue or for most financial matters. We recommend that immense powers be given to your agent. Due to this fact, we tell our clients that you need to have the utmost trust in your agent. We include a statutory gift rider with extended powers of gifting for Medicaid and Estate Tax purposes. This gives the agent flexibility to effectuate estate planning or Medicaid planning on behalf of the principal. The agent must act in a fiduciary capacity and only use the power of attorney to benefit the principal. The agent is responsible for keeping records for all transactions made on behalf of the principal.

Ira K. Miller & Associates has over 35 years of experience within estate planning & power of attorney. For further questions or to request a consultation please feel free to give us a call at (718) 875-2191 or fill out an online contact form.

 

Wealthy are Suffering without Estate Planning

In a recent story & survey by CNBC, it has been shown that more then 1/3 of high net worth families do not have an estate plan set up. They have surely not taken the basic steps needed in the case that someone dies, to protect and provide for their loved ones.

The survey has shown that 38 percent of people with over then 1 million dollars in investable assets have yet to use a financial expert to set up an estate plan. This is a major mistake when it comes to estate planning.

National director of wealth-planning strategies for U.S. Trust,  Mitch Drossman, is not surprised at these numbers and blames it to be the uncertainty and changes to the federal estate-tax law over the last decade. He describes the frequent changes led to advisers and attorneys consistently needing to reach out to their clients to explain these changes and to be sure their documents were up to date. Clients eventually just had enough with it.

“I think people tend to think of estate planning as being primarily a means to reduce estate taxes, and therefore, if they don’t have to pay estate tax, they may feel they don’t have to do any planning,” said David Mendels. While estate planning can help reduce estate tax, it is much much more.  It elects guardians for minor children, it plans for a persons incapacity, it can help protect assets from creditors, or keep a person on governmental benefits with the implementation of a supplemental needs trust.

New York is actually one of 15 states that collect a state estate tax. Currently, New York’s estate tax is significantly below the Federal Estate tax exemption.  It is set to match the Federal Estate tax exemption in 2018.

Estate planning is about protecting your assets, and providing for your loved ones. It is also about protecting your wishes regarding end of life decisions and ensuring that the people you trust are the people handling your affairs if you are unable to.

Further along in the article it reads, “A durable financial power of attorney document is also necessary, as it identifies the person you’d like to manage your money if you are unable to make decisions for yourself, said Frye. Such legal documents grant that person legal authority to pay taxes on your behalf, borrow money, pay your bills, invest and handle bank transactions.”.

Ira K. Miller & Associates has over 35 years of experience in estate planning. We are happy to answer any questions you might have.  As the article says,, “[y]ou have to plan for the worst, and hope for the best”

I Have Been Appointed as Guardian in New York, Now What?

gaurdianship attorneyYou have now been appointed as Guardian of the Person and/or Property in New York. You have participated in the hearing and have been told by the judge that you will be acting as Guardian for the incapacitated person. Listed below are steps which must be taken to qualify as a Guardian after the hearing.

  • Review CAREFULLY the Order and Judgment appointing the Guardian of the person and property- The order explicitly lists out what is expected of the Guardian, the powers of the guardian, and the necessary duties that the guardian must fulfill.
  • Guardianship Training Class- The law requires that Guardians go through a training class. As Guardian of the Property the guardian must act as a fiduciary for the incapacitated person, and keep meticulous records. The class explains what is expected of the guardian by the Court.
  • Bond- the Order and Judgment will often set a surety bond to protect the assets of the Incapacitated Person. The bond is like an insurance policy, which is paid for from the incapacitated person’s money. If the guardian were to misappropriate the funds of the incapacitated person, the bond would secure the monies of the incapacitated person.
  • Oath and Designation- This is an oath from the Guardian designating the county clerk for service if the guardian cannot be located.
  • Commission- This states that the bond has been obtained and filed, and the oath and designation has been filed. It allows the person to begin acting as the Guardian and marshalling assets.
  • 90 day report- 90 days from filing the commission the guardian must submit a report to the court examiner, the person appointed to review the actions of the guardian, and to the court. The report lists the assets marshaled, the assets that have not been marshaled, and what actions are being taken on behalf of the incapacitated person.
  • Annual Accountings- Every year a report is due in May to the court examiner and the court. This report lists all the monies that were received and expended. The Guardian is responsible for keeping very detailed records and showing all the money that has come in and all the money that was spent on the incapacitated person.

Having an attorney help you with all these steps can help protect you as Guardian.

, please feel free to give us a call at (718) 875-2191 or request a consultation.

Probate 103- Distribution According to the Last Will and Testament

The last step of an estate is everyone’s favorite, distribution. After all the estate’s property has been marshaled and liabilities have been paid, the executor can begin the process of distribution according to the Last Will and Testament. The executor should wait 7 months for any creditors to submit their claims to the estate. It also may be advisable for an executor to withhold some funds as a precaution in the event another claim was to surface against the estate.

Listed below are some of the steps the executor should take before distributing the estate:

  • Set up Trust – If a trust is specified in the Will, the executor is responsible for setting up the trust.
  • Specific Bequests – Distribute specific bequests.
  • Create Informal Accounting – An informal accounting will be created which details all the assets marshaled, administration expenses, and the amount that is set to be distributed to each person according to the Will. This document will be sent to the beneficiaries listed in the Will.
  • Release and Receipts – The releases will release and indemnify the Executor from liability and agree to the amount being distributed to them according to the Will. It is important that release and receipts are received prior to distribution.
  • Disblank checktribution – Checks will be made out to the residuary beneficiaries or to any testamentary trust.

Listed in this series of blogs were very basic steps to having an executor appointed, marshal the assets, and distribute an estate. For more information, contact a knowledgeable probate and estate attorney.

Probate 102 – Marshalling of Assets and Payment of Liabilities

Once the courts grant the Executor letters testamentary, it is time to marshal the assets and pay the liabilities of the estate. An experienced estate attorney can provide valuable advice and help with this process. Marshalling the assets involve first locating the assets of the decedent. The assets that are to be marshaled are any accounts and property that did not have a beneficiary attached to it. The following are other steps the Executor must account for:

  • Get EIN number - This number will be associated with the estate account for tax purposes.
  • Set up Estate Account - The Executor will need to create an Estate Account. The account will be titled the Estate of the decedent.
  • Transfer Property to Estate Account – Once the estate account is set up, the Executor will transfer any property that was in decedents name alone (no beneficiary designation listed on the account) to the estate account.
  • Appraisals of Property – An Executor may need to have appraisals done for businesses, real property, artwork, or anything that may have value.
  • Pay liabilities and reimburse parties for expenses expended – The Executor must make sure that claims are legitimate
  • Income Tax – Hire an accountant to file an income tax return for any years that have not been paid.
  • Estate Tax – Estate Taxes may need to be filed for New York State and Federally. Estate taxes are due 9 months from decedent’s date of death.
  • Wait for Creditors – Creditors have 7 months from the issuance of letters testamentary to come forward with any claims they have against the estate.
  • Keep a Detailed Accounting - Records of all the assets that have been marshaled and expended on behalf of the estate must be accounted for.

Being an Executor is no easy task. It can be very difficult to find where a decedent had their assets. Also, deciding whether to sell an asset or transfer at value is another difficult decision an Executor may need to make. The most important step of being an Executor is keeping detailed records. Every penny that was brought into the Estate should be accounted for.

For further legal advice and to talk with an experienced probate attorney, please feel free to give us a call at (718) 875-2191 or request a consultation.

Probate 101 – Appointment of the Executor

If you are named Executor in a Will, you may be asking yourself what are the next steps? Hiring a knowledgeable and experienced probate/estate attorney can help you with all the necessary steps in probating the Will. The first phase of probate is to get appointed as Executor by the Surrogates Court.

The following documents need to be submitted to the Surrogates Court to allow you to become Executor.

  • Original Will – The original Will needs to be submitted to the court.
  • Death Certificate – An original death certificate needs to be submitted to the court as well.
  • Petition – This is the document that informs the court that you were nominated as Executor, and that you are moving to have the Last Will and Testament probated. You are petitioning the court for Letters Testamentary which will give you authority to gather the assets of the deceased and act as Executor.
  • Waivers – Waivers need to be sent to the interested parties that would receive the estate if there were no Will (called intestacy). The waiver specifies that the party consents to the Will being admitted to probate and that you will be appointed as Executor. The waiver needs to be signed and notarized. If the waiver is not received a citation will need to be issued.
  • Citation – A Citation is served on interested parties that did not return the waiver. The citation is a date issued by the court which gives the interested party the right to object to the Will being probated. It is a matter of speak now or forever hold you peace. If the interested parties do not come forward they lose their right to object.
  • Affidavit of Due Diligence – If the location of an interested party is unknown and cannot be located after a diligent search, an affidavit to the court listing the methods attempted to find the interested party is needed.
  • Publication – If we are unable to find the addresses of an interested party after a diligent search, it is necessary to publish in a newspaper for four weeks that the Will is being offered to probate.
  • Notice – This document is sent to people mentioned in the Will who are not interested parties and would not receive anything through intestacy if the Will were not to be probated. It notifies them that they have been mentioned in the decedent’s Will.
  • Affidavit of Sole Heirship/Affidavit of Heirship – Depending on the situation, the Court will ask for an affidavit explaining the genealogy of the family.
  • Affidavit of Comparison – The court requires us to file a copy of the original Will that is examined by two witnesses attesting that the copy of the Will is the same as the original.
  • Submitting all documents to the court – Once all documents are submitted to the court, the court reviews them to ensure that everything has been done properly.

Letters Testamentary will be issued by the Court- Letters testamentary will allow the Executor the legal authority to perform the duties of the Executor such as gathering the assets of the deceased, paying liabilities, and distributing the estate according to the Will.

For more information or to schedule a consultation with Brooklyn’s Elder Lawyers, please feel free to give us a call at (718) 875-2191 or fill out a contact form.

 

What is Probate?

Probate sounds like a big scary word and often times can intimidate people. Probate is simply the legal process of distributing assets according to the Last Will & Testament of the Testator (person who created the will). The person that has this job is the executor of the estate listed in the Will. The executor has the responsibility of petitioning (asking the court) for authority to follow the terms listed in the Testator’s will. When a person passes away with a Will, the Will needs to be proven to the Surrogates Court of New York that the will is valid. The Probate of a will in Surrogates court is jurisdictional and the assistance of a qualified estate attorney is extremely valuable.

There are three phases to the probate process. The first phase is to get the person listed as executor in the Will appointed legally as executor. The second step is to marshal assets and pay debts of the testator. The third and final step is distribution according to the Will and closing of the estate. In the coming weeks we will discuss each step in further detail.

For more  information about Probate and Ira K. Miller Associates Elder Law services in Brooklyn feel free to give us a call at 718-875-2191 or fill out a contact form.

What is a Healthcare Proxy?

A proper estate plan does not just include a will but also includes a healthcare proxy and a durable power of attorney. The healthcare proxy and durable power of attorney are documents that can be used in the event of your incapacity. A healthcare proxy is a legal instrument that gives your agent the authority to make healthcare decisions for you if you are unable to. This document can be very important in the event you become incapacitated or unable to provide the doctor with direction. Only one agent can be listed as the primary agent on a healthcare proxy as the doctor does not want disputes as to your healthcare decisions. An alternate agent may be listed on your healthcare proxy if your first agent is unavailable to make decisions for you.

Your agent should be informed on end of life decisions such as life support and artificial nutrition and hydration. Attached to many healthcare proxies are living wills that provide guidance to your agents on these wishes. The healthcare proxy should be kept with your agent in an easily accessible location. Do not keep healthcare proxies in safety deposit boxes as banks may be closed when you need this document. A healthcare proxy is an important document necessary to ensure that your healthcare wishes and decisions are carried out by someone that you trust if you are unable to provide the doctors with guidance.

For more information about estate planning and healthcare proxies please give us a call at (718) 875-2191 or fill out a contact form.

Why Do-It-Yourself Estate Planning is a Terrible Idea

Many people do not want to spend their money to have proper estate planning done. They think that they can just do it themselves with a website like Legal Zoom or Rocket Lawyer. This is like requiring surgery and attempting to do it yourself.  Here are the top 5 reasons why you should not have a do it yourself estate plan:Don't do it yourself

  1. Presumption of proper execution- When you go to a lawyer to have your estate planning done, they know how to properly execute a Last Will and Testament and it is presumed that they executed the document correctly.  When you execute the will yourself there is no presumption and if the Will becomes contested it needs to be proven that the Will was executed properly.  Proper publication of a Will and proper witnessing may be steps that many do-it-yourselfer will do incorrectly.
  2. Taxes- Benjamin Franklin once said “Nothing is certain except death and taxes.” Estate planning attorneys must be familiar with New York Estate Tax, Federal Estate Tax, Gift Taxes, and Capital Gains taxes. A person creating their own Will may miss tax savings that a lawyer may have been able to help them with.  Attempting to save a few dollars by not hiring an estate planning lawyer could in the end cost a person thousands of dollars in taxes.
  3. Drafting- An estate planning lawyer knows the right questions to ask and the correct way to draft a Last Will and Testament. Filling out questions on a website may not actually fulfill your wishes. A trust may also be needed in some cases and a website will not help you determine if it is needed.
  4. What is included in your Estate- People attempting do it yourself estate planning may not know what is included in your estate.  There are certain items that pass by operation of law and are outside of the estate and outside of the Will. Improperly including items in your will that pass outside the estate may result in a Will contest.
  5. Power of Attorney and Healthcare Proxy- Many people think that estate planning is just creating a Last Will and Testament.  Proper estate planning also involves planning for a person’s incapacity. Do-it yourselfers may not execute these documents which could cause problems in the future.