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By Linda M. Toga, Esq.

Linda Toga, Esq.

THE FACTS: 

My uncle John named my cousin Mike as executor in his will. Mike lives out of state and decided it would be too burdensome for him to serve as executor. Since I was named as successor executor, I had my attorney file a petition asking that the court issue to me letters testamentary. Mike signed a form renouncing his appointment and consenting to my appointment. Now that I am about to close the estate and receive commissions for serving as executor, Mike is insisting that he is entitled to the commissions since he was my uncle’s first choice for executor.

THE QUESTION:

Is Mike correct?  

THE ANSWER: 

Mike is absolutely wrong. Commissions are designed to compensate an executor for the time and effort he spends marshalling the decedent’s assets, paying the decedent’s debts and distributing the probate assets in accordance with the terms of the decedent’s will. Commissions paid to an executor of an estate are statutory. That means that there is a law (Surrogate’s Court Procedure Act, Section 2307) that sets forth the manner in which the commissions are calculated. That calculation takes into account the value of the estate assets and how those assets are addressed in the will. 

For example, if the decedent owned a house and in his will made a specific bequest of the house to his daughter, the value of the house is not included in the commission calculation. If, however, the decedent did not make a specific bequest of the house and simply stated in his will that his entire estate was to be distributed to his children in equal shares, the value of the house would be included in the commission calculations.

The commissions paid to an executor represent a percentage of the value of the estate so, the larger the estate, the greater the commissions. Commissions are awarded on a sliding scale. Generally an executor earns 5% of the first $100,000 of the value of the estate, 4% on the next $200,000 of the value of the estate and so on. 

The percentage on the value of the estate decreases as the value of the estate increases. Calculating commissions is a bit involved since the executor has to take into consideration the value of assets he receives as well as the value of assets paid out by the estate. Those figures may not be the same if, for example, the decedent’s investments lose significant value during the administration of the estate. Commissions paid to an executor are considered income and are subject to income tax. 

Although Surrogate’s Court Procedure Act, Section 2307 gives the executor the right to take commissions, it is not a requirement and it is not uncommon for close family members of the decedent who are also beneficiaries under the will to forego commissions. Doing so results in all of the beneficiaries who are entitled to a specific share of the estate to get a little more. 

That being said, in situations where there are beneficiaries that are likely to be uncooperative, I often recommend that the executor advise the beneficiaries that his decision about taking commissions is dependent on their conduct. Knowing they may get a bit more from the estate if they help rather than hinder the executor is usually enough to get cooperation.

Because of the complexities involved in probating an estate and calculating executor commissions, it is prudent for the person named as executor in a will to retain an experienced attorney to assist with the process. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected]. 

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By Michael Christodoulou

Michael Christodoulou
Michael Christodoulou

Many of us probably felt that 2020 lasted a very long time. But now that 2021 is upon us, we can make a fresh start – and one way to do that is to make some New Year’s resolutions. Of course, you can make these resolutions for all parts of your life – physical, emotional, intellectual – but have you ever considered some financial resolutions?

Here are a few such resolutions to consider:

  • Don’t overreact to events. When the coronavirus pandemic hit in mid-February, the financial markets took a big hit. Many people, convinced that we were in for a prolonged slump, decided to take a “time out” and headed to the investment sidelines. But it didn’t take long for the markets to rally, rewarding those patient investors who stayed the course. Nothing is a certainty in the investment world, but the events of 2020 followed a familiar historical pattern: major crisis followed by market drop followed by strong recovery. The lesson for investors? Don’t overreact to today’s news – because tomorrow may look quite different.
  • Be prepared. At the beginning of 2020, nobody was anticipating a worldwide pandemic and its terrible consequences, both to individuals’ health and to their economic well-being. None of us can foretell the future, either, but we can be prepared, and one way to do so is by building an emergency fund. Ideally, such a fund should be kept in liquid, low-risk vehicles and contain at least six months’ worth of living expenses.
  • Focus on moves you can control. In response to pandemic-related economic pressures, some employers cut their matching contributions to 401(k) plans in 2020. Will some future event cause another such reduction? No one knows – and even if it happens, there’s probably nothing you can do about it. Instead of worrying about things you can’t control, focus on those you can. When it comes to your 401(k) or similar employer-sponsored retirement plan, put in as much as you can afford this year, and if your salary goes up, increase your contribution.
  • Recognize your ability to build savings. During the pandemic, the personal savings rate shot up, hitting a record of 33% in April, according to the U.S. Bureau of Economy Analysis. It fell over the next several months, but still remained about twice as high as the rate of the past few years. Of course, much of this surge in Americans’ proclivity to save money was due to our lack of options for spending it, as the coronavirus caused either complete or partial shutdowns in physical retail establishments, as well as dining and entertainment venues. But if you did manage to boost your own personal savings when your spending was constrained, is it possible to remain a good saver when restrictions are lifted? Probably. And the greater your savings, the greater your financial freedoms – including the freedom to invest and freedom from excessive debt. When we reach a post-pandemic world, see if you can continue saving more than you did in previous years – and use your savings wisely.

These aren’t the only financial resolutions you can make – but following them may help you develop habits that could benefit you in 2021 and beyond.

This article was written by Edward Jones for use by Michael Christodoulou, ChFC®,AAMS®,CRPC®,CRPS® of the Stony Brook Edward Jones.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

The 2017 Tax Cuts and Jobs Act (the “Act”) increased the federal estate tax exclusion amount for decedents dying in years 2018 to 2025. The exclusion amount for 2021 is $11.7 million. This means that an individual can leave $11.7 million and a married couple can leave $23.4 million dollars to their heirs or beneficiaries without paying any federal estate tax. This also means that an individual or married couple can gift this same amount during their lifetime and not incur a federal gift tax. The rate for the federal estate and gift tax remains at 40 percent.

The Portability Election, which allows a surviving spouse to use his or her deceased spouse’s unused federal estate and gift tax exemption, is unchanged for 2021. This means a married couple can use the full $23.4 million exemption before any federal estate tax would be owed. To make a portability election, a federal estate tax return must be timely filed by the executor of the deceased spouse’s estate.

For 2021 the annual gift tax exclusion remains at $15,000. This means that an individual can give away $15,000 to any person in a calendar year ($30,000 for a married couple) without having to file a federal gift tax return and without counting toward their lifetime exemption amount.

Despite the large Federal Estate Tax exclusion amount, New York State’s estate tax exemption for 2021 is $5.93 million. New York State still does not recognize portability. New York has a three-year lookback on gifts as of January 16, 2019. However, gifts will not be includable in your estate if made within this time period if made by a resident or nonresident of real or tangible property located outside of New York State; while the decedent was a nonresident; before April 1, 2014; between Jan. 1, 2019 and Jan. 15, 2019.

If you are concerned about an increase in the federal estate and gift tax rate and decrease in the exemption due to the change in the presidential administration, now is the time to use your estate and gift tax exemption through lifetime gifts. By making lifetime gifts over the $15,000 annual exclusion, you utilize your estate and gift tax exemption. The IRS finalized rules in 2019 stating that it would not “claw back” lifetime gifts when the exemption is lowered. This means that an individual can give his or her entire estate and gift tax exemption ($11.58 million) in 2020 and not be affected by a reduced estate and gift tax exemption under the new administration.

To utilize the benefit of the larger estate and gift tax exemption in 2020 from a potentially reduced amount in 2021 and beyond, the gifts need to be substantial. Meaning that this gift would have to greater than the anticipated new exemption (the Biden plan proposes a $3.5 million exemption) to utilize what would be “excess” exemption. The proposed estate tax rate on amounts over $3.5 million is increased from 40% to 45%. If the excess exemption is not used before the exemption is lowered by Congress in a new legislation, then that “excess” would be lost and amounts remaining in your estate over $3.5 million at your death (assuming there is no surviving spouse) would be taxed at 45%.

Most taxpayers will never pay a federal estate tax under the current Act. If the federal estate tax exemption is reduced to $3.5 million, many more estates would be subject to a federal estate tax, especially on Long Island.

It is critical to do estate tax planning if you or your spouse have an estate that is potentially taxable under New York State law or taxable under the proposed changes to the federal estate tax laws.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS:

My aunt Mary died recently. She was widowed and had no children. My father, her only sibling, died a few years ago. In her will Mary named me as the executrix of her estate and the sole beneficiary. The attorney who drafted the will expected to be retained to handle Mary’s estate but I have worked with a different attorney and want to work with him in connection with the probate of Mary’s estate. The drafting attorney has the original will and has refused to give it to me.

THE QUESTIONS:

Must I retain the drafting attorney to handle the probate of my aunt’s will? If not, must he turn the will over to me or my attorney?

THE ANSWER:

The short answer to your first question is an emphatic “NO”! Although many attorneys assume and likely hope that the families of their estate planning clients will retain them to handle the estates of those clients when they die, there is absolutely no legal basis for the drafting attorney to insist that he/she be retained by the named executor to assist with the probate of the estate. If your aunt wanted the drafting attorney to handle her estate, she certainly could have named him as executor. Since she named you, you are free to retain any attorney you want to assist you with the probate process.

As for whether the drafting attorney must provide you or your attorney with the original will, it would clearly be better if the drafting attorney simply agreed to turn the will over to you or your attorney. However, if that does happen, all is not lost since New York law provides a mechanism for compelling a person who is holding an original will of a decedent to file that will with the surrogate’s court.

If polite requests for the will are ignored, your attorney can commence a proceeding in the surrogate’s court to compel the drafting attorney to produce the will. If the court determines that the drafting attorney did not have good cause to withhold the will, the court may not only order the attorney to file the original will with the court but, can also order the drafting attorney to reimburse you for the attorney’s fees you paid in connection with the proceeding.

Obviously, unless there is a good reason why the drafting attorney will not provide you or your attorney with the will, it is in his/her best interest to simply turn it over without the need for court intervention.

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected].

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By Nancy Burner, Esq.

Nancy Burner, Esq.

In order for a person to contest a last will and testament (“will”) in New York, he or she must have legal grounds; a reason based in the law that the will is invalid and should not be admitted to probate.

Admitting a will to probate means that the executor named in the will is appointed by the Surrogate’s Court. The executor then distributes the decedent’s assets as dictated by the will. The most common grounds for challenging a will are improper execution, lack of testamentary capacity, and undue influence.

Having grounds for contesting a will takes more than simply disliking the terms of the will or being unhappy with its distribution.

A will must be properly executed to be valid. The requirements for the proper execution of a will are as follows: (1) the will must be signed at the end thereof, (2) the will must have been signed in the presence of two witnesses, (3) the decedent must have declared the document to be his or her will, and (4) the witnesses must have signed the will as witnesses at the request of the deceased.

When an attorney supervises the execution, the will is entitled to a presumption that it was properly executed — known as the presumption of due execution. Wills prepared from online DIY services and executed without an attorney do not enjoy this presumption.

The decedent must have also possessed testamentary capacity when he or she signed the will. The Surrogate’s Court looks at the following three factors to determine whether the decedent had the requisite capacity to sign a will: (1) the decedent understood the nature and consequences of executing a will, (2) the decedent knew the nature and extent of his or her property, and (3) the decedent knew the natural objects of his or her bounty and his or her relations with them.

If a will is the product of undue influence, it will not be admitted to probate. A will may be invalidated on the ground of undue influence if there was: (1) motive, (2) opportunity, and (3) the actual exercise of undue influence. The influence exercised must rise to a level of coercion that restrains the free will and independent action in a forceful way. The inquiry into whether a will is a product of undue influence is fact specific and involves the examination of the decedent and his or her circumstances, the will and its procurement, and the person alleged to have exercised the undue influence.

If it is determined that any of these grounds exist, then the Surrogate’s Court would refuse to admit the will to probate. The result of the denial of probate would be that the decedent’s next of kin would inherit the estate under the laws of intestacy or the beneficiaries of the decedent’s prior will would inherit.

It is difficult — but not impossible — to contest a will. The requirements of due execution and testamentary capacity are easily achieved by presumptions that are obtained through attorney supervised will signings. Undue influence is not easily demonstrated and generally takes a thorough investigation to uncover significant facts. These matters are usually complicated both factually and procedurally, and the assistance of an experienced estate litigation attorney is essential.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

A “closing” in legal lingo is the final step in a real estate transaction. A real estate closing is when the purchaser obtains title to the property, evidenced by a deed from the seller to the purchaser or stock in a cooperative apartment.

Simultaneously, the seller obtains the net proceeds from the sale. This event is usually attended by the seller, purchaser, their respective attorneys, the title closer, the bank attorney (if the purchaser has obtained financing) and the real estate agents.

In our post-COVID world, closings have looked a little different with closings occurring by mail, with parties pre-signing documents and agents not attending closings.

What an attorney does during the closing depends on which party he or she represents. Ideally, all of the complications have been worked out before the parties get to the closing table, although occasionally an issue will arise during the final walk-thru of the property that will need to be addressed.

If there is a bank attorney, he or she is required to have all of the numbers ahead of time so that they can complete the closing disclosure that will provide a detailed itemization of all fees to be paid at the closing and an exact number that the borrower/purchaser will be paying and the seller will be receiving.

The bank attorney provides the documentation required by the bank to be signed by the borrower/purchaser and provides funding only when the title company provides a loan policy to the lender.

The seller’s attorney is responsible for preparing the deed and governmental transfer documents which will be signed at the closing by the parties and for obtaining any payoffs and appropriate checks to pay the liens or judgments that may have been presented in the title report against the property or the seller. The seller’s attorney will typically ask for bank checks for these items to be provided by the purchaser which will be deducted from the total proceeds owed.

The title closer will make sure that any mortgage, judgments or liens are paid off and that any new mortgage will be recorded along with the deed. The purchaser will leave with only a copy of the deed as it will be recorded by the title closer in the county clerk’s office once the closing has concluded.

The title company insures the purchaser as to the ownership and also the lender that their mortgage has priority and is valid. Once the title closer is satisfied with the documentation and has provided the title policies, the closing is officially concluded and the purchaser will be provided with the keys and the seller will receive the checks.

The purchaser’s attorney is responsible for having the purchaser bring the correct checks to the table, explain the lender’s documents, and ensure that the title company is insuring the purchaser’s title to the property.

As you can see, there are sometimes three attorneys present at a residential closing, each with different roles. The main role for any attorney you retain is to protect your interests — whether you are the buyer, seller or the bank.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My brother John died unexpectedly. John never married and has no children. He had a Will in which he named me as executrix and left everything to me and my sister, Julie. The only assets John had was a bank account with a balance of $22,500.

THE QUESTION: What do I need to do to close that account so the money can be divided between me and Julie?

THE ANSWER: In most cases when someone dies with assets and a will, the person named in the will as executrix must file a petition with the surrogate court in the county where the decedent lived seeking letters testamentary. Once letters testamentary are obtained and the executrix has obtained a taxpayer identification number from the IRS, the executrix can go to the bank to close the account.

It is noteworthy the bank will not write checks to beneficiaries of the estate but, will only write a check for the balance in the account payable to the estate. That check must be deposited in an estate account from which the distributions to the beneficiaries can be made. 

In your case, since the value of John’s assets is less than $30,000, you need not obtain letters testamentary. Instead you can file an affidavit with the surrogate‘s court as part of a small estate administration. The filing fee is $1 and the form is less involved than the one used to file for letters testamentary. You will have to provide the name and address of the bank, the account number and the account balance and information on who is entitled to the funds.

Once the affidavit is accepted, the court will send you a certificate that gives you the authority to close your brother’s bank account. You will receive a separate certificate that gives you the authority to open an estate account into which you need to deposit the check issued by the bank.

To insure that the affidavit is prepared and filed correctly, I recommend that you retain an attorney with surrogate’s court experience to represent you. That way you can be sure the process will go as smoothly possible.

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected].

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Making medical decisions for a loved one is extremely difficult, but making end of life decisions for someone is legally impossible without proof of his or her wishes. In New York, nobody may make end of life decisions for another — such as to forgo life sustaining treatments which only serve to artificially prolong one’s life — unless there is “clear and convincing” evidence of that person’s medical wishes. A Living Will document is the standard manner in which that burden is met.

A Living Will is part of a trio of “advanced directives,” which include a health care proxy and durable power of attorney, that help people plan for incapacity. Although you may name an agent to make medical decisions for you under a Health Care Proxy, that person cannot use his or her own judgment to reject life prolonging medical treatment for you — even if you are in a vegetative state with no hope of recovery.

The agent must provide sufficient proof of whether you would want cardiac resuscitation, mechanical respiration, artificial nutrition and hydration, antibiotics, blood, kidney dialysis, surgery or invasive diagnostic tests. A Living Will document specifically states what medical actions should be taken if you are in a terminal state with no reasonable hope of recovery and cannot communicate your wishes. Without it, your family members may end up in court offering testimony of why you would not have wanted to be kept alive if your quality of life was so poor. A video, a letter, a Facebook post — any such evidence could meet the “clear and convincing” burden.

A standard living will refuses all life-sustaining procedures if such measures only serve to artificially prolong one’s life. Such treatments are limited to making the patient comfortable and maximizing pain relief. However, this is not a requirement. A Living Will can and should be tailored to an individual’s specific needs and beliefs, even if it means that person wants all life-sustaining measures to be taken. Before executing a Living Will, you should consider what medical treatments are to be administered and under what medical conditions. Additionally, a Living Will can state your preference to be kept at home, if possible, rather than in a hospital.

It is important that when deciding who will act as a health care agent, you choose an individual who not only understands your wishes but is also willing to carry them out. Religious beliefs, for example, may prevent someone from “pulling the plug” even though you specifically instruct your agent to do so. A loved one may have a hard time carrying out your wishes for emotional reasons.

Before appointing an agent, you should have a discussion with them to ensure they understand your treatment plan and agree to follow same. If you cannot find an agent to carry out your wishes, the living will can be filed with your doctor or the hospital so that it is on record and provides instructions to your attending physician.

As you can see, a Living Will is a crucial estate planning document that all individuals should have in place. It is important to discuss your wishes with an Estate Planning attorney to ensure that your preferences will be carried out are legally valid.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My husband, Fred, died recently. We are both on the deed to our house.

THE QUESTION: Do I need to change the deed?

THE ANSWER: Whether you need to change the deed depends on how you and Fred took title to the property when you first purchased it. You and Fred were co-owners of your property but, the ownership interest of co-owners of real property can be expressed on a deed in different ways.

Two or more co-owners can each own a specific percent of the property For example, two owners can each have a 50% interest in the piece of property. Each owner can dispose of his/her 50% interest as he/she pleases. Owners with this sort of arrangement are referred to as tenants in common.

Two or more people can also own property jointly with the right of survivorship. Such co-owners are referred to as joint tenants and the deed to the property will include the words “joint tenants with the right of survivorship” or “jt. tenants WROS.” Each joint tenant has an interest in the entire property and generally cannot dispose of their interest in the property without the consent of the other joint tenants.

Finally, when a married couple takes title to real property, they can do so jointly as tenants in the entirety. This designation is similar to jt. tenants WROS but, is only an option for married couples.

If you and Fred took title to your home as 50/50 tenants in common, a new deed should be prepared by which the executor or administrator of Fred’s estate transfers his 50% interest in the property to the person he named as the beneficiary in his will or the person entitled to his share under the intestacy statute. The new deed must be signed by the executor/administrator and filed/recorded in the office of the county clerk in the county in which the property is located.

If you and Fred held the property as joint tenants WROS or as tenants in the entirety, there is no need to change the deed. You became the sole owner of the property upon Fred’s death by operation of law. In other words, Fred’s ownership interest in the property was extinguished when he died and you automatically became the owner.

If you sell the property, you will need to provide proof that Fred died. Without such proof, the deed bearing only your signature will not be accepted for recording. If your house is not sold until after you die, the person selling your house will have to provide both Fred’s death certificate and letters testamentary or letters of administration from the surrogate’s court to establish that he/she has the authority to sell the property.

If you are still uncertain as to whether a new deed is needed, you should contact an attorney with experience in real estate who can review your deed and advise you as to how to proceed.   

Linda M. Toga, Esq provides legal services in the areas of real estate, estate planning and administration, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected]. She will respond to messages and emails as quickly as possible.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Incapacity and death are usually topics that one attempts to push off to a future date or sweep under the rug. We rationalize — “I am young” or “I am still handling my affairs” or “I will worry about it later.” It is not until we are faced with a lifechanging event that propel us on a path to deal with the situation at hand.

Usually these lifechanging events are individual to the person — a catastrophic health condition, an accident or maybe seeing a close family member or friend going through some event. It is rare that we are faced with a national health crisis that make us all stop and consider this type of planning. In the light of recent events with COVID-19, the world is faced with an epidemic that has many people scrambling to have their affairs in order.

In the uncertainty of becoming incapacitated and unable to handle your own affairs, it is more important than ever to have basic advanced directives in place. Anyone over the age of eighteen should have the following documents: Health Care Proxy, Living Will (if desired), HIPAA release form and General Durable Power of Attorney.

The health care proxy is a document that states who you would like to make your medical decisions in the event you are unable to make them for yourself because you have been deemed incapacitated by a doctor. The living will states your wishes regarding the withdrawal of treatments. This document can direct that certain treatments be stopped if they are serving to prolong your life without any reasonable expectation of recovery.

A HIPAA release allows the listed individuals to be able to obtain copies of your medical records. A power of attorney authorizes your agent to control your financial life — including but not limited to banking, pension plans, life insurance, etc. Your agent would step into your shoes and be able to handle all of your financial affairs.

Absent having these documents in place, no one would have the authority to act on your behalf in the event you become incapacitated. If you are hospitalized or quarantined, no one will be able to access your bank accounts on your behalf — pay bills or ask for relief in payments. If you are incapacitated and cannot make your own medical decision, you will not be able to choose your agent.

This is typically where we explain to our clients that this could result in a guardianship court proceeding which is costly and invasive. However, in light of COVID-19, the court system is not even available due to the closure that started on March 17, 2020. Without the proper documents in place and not being able to turn to the court, this could result in a huge delay of anyone acting on your behalf.

As we continue to forge ahead in this worldwide crisis, take the time to speak with your family members and come up with a plan. Estate Planning attorneys in your area are available to explain your options and set up a comprehensive plan to ensure that your loved ones are not scrambling to assist you.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.

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