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DMV has proposed to increase the point value for certain violations such as passing a stopped school bus. METRO photo

By A. Craig Purcell, Esq.

A. Craig Purcell

Back in September of 2023, the New York State Department of Motor Vehicles (DMV) issued a press release to announce proposals to strengthen regulations “to get dangerous drivers off the road.” These proposed amendments would bolster the state’s ability to remove drivers who engage in risky behavior and make it “more difficult for persistent violators to restore driving privileges.” 

These changes in regulations are part of a multifaceted strategy to combat reckless driving, which endangers everyone. 

Commissioner of the New York State Department of Motor Vehicles and Chair of the Governor’s Traffic Safety Committee, Mark J.F. Schroeder, stated that “the message is simple: If your actions behind the wheel put others in danger, you don’t belong in the driver’s seat. That’s why we are proposing significant and aggressive actions to protect other drivers, motorcyclists, bicyclists, pedestrians and children. Everyone deserves to feel safe regardless of how they choose to commute or enjoy our roads.” The amendments will: 

1. Increase the number of points associated with dangerous driving. 

The long-established Driver Violation Point System gives the NYS DMV a way to identify and act against high-risk drivers. The DMV assigns points for certain traffic violations. DMV is proposing to add point values to violations that presently have none. These violations include alcohol or drug-related convictions, driving without a license, and any violation involving speeding in a work zone, leaving the scene of a personal injury crash, or striking a bridge. DMV has also proposed to increase the point value for certain violations such as passing a stopped school bus.

2. Decrease the threshold at which dangerous drivers are disqualified from holding a license. 

Currently, if a licensed driver accumulates 11 points in 18 months, his or her driver’s license may be suspended. The DMV is proposing to amend that regulation to keep more habitual offenders from driving. The proposed amendment will increase the time frame that administrative action can be taken against a persistent violator from 18 months to 24 months. DMV is also proposing changes to the point system used to evaluate requests for re-licensure after drivers have been convicted of multiple reckless driving and similar violations. 

These changes will make it more difficult for drivers with many convictions to regain their driving privileges. During that evaluation process, DMV is also proposing a change that will allow the agency to consider an applicant’s driving history going back four years from the date they applied for re-licensure. DMV previously looked at a driver’s record going back three years.

3. Lower the bar for permanent license forfeiture for reckless drivers who continue to drive under the influence of drugs or alcohol. 

DMV is also proposing to reduce the number of alcohol- or drug-related driving convictions or incidents that would result in a permanent denial of a driver’s license application. Currently, where regulations stipulate that an application for re-licensure be denied if a driver has five or more alcohol or drug-related driving convictions, the DMV is proposing to lower that number to four or more alcohol or drug-related convictions. 

The DMV is also proposing to change regulations to allow for permanent license revocation after three alcohol- or drug-related driving convictions plus one or more other serious driving offenses. 

Other proposed changes will empower the DMV to deny an application for re-licensure for two years if the applicant has three alcohol- or drug-related driving convictions and no serious driving offense. Other applicants who meet the same criteria but have a current license revocation for an alcohol or drug-related conviction will face a five-year revocation.

We will keep the public informed on the progress of these proposals in the New York State Legislature.

A. Craig Purcell, Esq. is a partner at the law firm of Glynn Mercep Purcell and Morrison LLP in Setauket and is a former President of the Suffolk County Bar Association and Vice President of the New York State Bar Association.

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Navy

Welcome to the 24th edition of Paw Prints, a monthly column for animal lovers dedicated to helping shelter pets find their furever home.

Meet Navy – NAVY HAS BEEN ADOPTED!!!

Navy

Dignified in full dress white, this officer and a gentleman is Navy, currenly up for adoption at Little Shelter in Huntington. Strikingly handsome, yet humble and down to earth, he’s hoping to join an active family in time to participate in all their holiday gatherings and festivities. Intelligent, mischievous and friendly, he has both impeccable manners and an expressive, free-spirited side. While enjoying high ranking with the staff and volunteers, this young fellow would love nothing more than a home base, so stop by Little Shelter today and recruit Navy for your very own! 631-368-8770, ext. 21

Meet Beautiful

Beautiful

Introducing Beautiful — a sweet and stunning girl living up to her name! This one to two-year-old beauty is not just lovely on the outside but radiates love from within. Ready for her forever family, Beautiful is housebroken, a fantastic leash walker, and spayed. Enjoy long walks? Beautiful is your perfect companion! She’s a volunteer favorite, cherished for playtime and cuddles in the pens. Vaccinated and ready to embark on a lifetime of love, Beautiful deserves the world and is eagerly waiting for her people to give it to her. Beautiful would do well in a home with another dog, children 10 and up and potentially cats. Come meet her at the Brookhaven Animal Shelter. 631-451-6950

Meet Meadow

Meadow

This happy lady is always smiling! Meadow is a 2-year-old female lab mix who is currently up for adoption at the Smithtown Animal Shelter. Meadow was found as a stray on Nov. 11 and was never claimed. She adores making new friends and has energy for days. She needs a little work on leash manners and may be a bit much for small kids or cats but is otherwise perfect. If you are interested in meeting Meadow, please schedule time to properly interact with her in a domestic setting, which includes a Meet and Greet Room, the dog runs, and a Dog Walk trail. 631-360-7575

Meet Princess Polly

Princess Polly

This beautiful lady is waiting for you at Little Shelter in Huntington. The origin of the name Polly means “wished for” and this season of gratitude is the perfect time to add a nine year old Maltese mix to your family. Coming from a long line of royalty, she also enjoys the title of Princess, so when dressed in her holiday finest, she‘s affectionately known as Princess Polly. Congenial and easy going, this little socialite is quick to make friends and influence people when out and about on her daily rounds. The Maltese have been prized companions for centuries, being intelligent and affectionate, with the ability to easily learn new things. Her best trick? She knows how to make herself irresistible! Stop by to meet Princess Polly today! 631-368-8770, ext. 21

Cuteness Overload!

Geoff
Lemon
Daphne

 

 

 

 

 

 

Gilda

Check out these gorgeous kitties, Geoff, Lemon, Daphne and Gilda, currently up for adoption at Kent Animal Shelter in Calverton. Stop by the shelter (10 a.m. to 4 p.m. daily) to meet them or fill out an adoption application ahead of time at www.kentanimalshelter.com. 631-727-5731 ext. 1

Check out the next Paw Prints in the issue of January 11.

Paw Prints is generously sponsored by Mark T. Freeley, Esq.

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Carrots

Welcome to the 16th edition of Paw Prints, a monthly column for animal lovers dedicated to helping shelter pets find their furever home! 

Penny

Meet Penny

”See a Penny, pick it up, then all day you’ll have good luck.” A ten-year-old Yorkie mix, this bright and shiny little girl is hoping to find her forever home and become part of your family. A happy and amusing companion, she’ll keep you entertained on your walks, sharing all the “gossip” from the small dog kennel, adding her own delightful spin. Enjoying proximity to her favorite humans, she’s also the perfect one to welcome you home at the end of the day, so be sure to stop by Little Shelter in Huntington to meet this tiny talisman of good fortune! “Share the Penny with a friend and your luck will never end.” Call 631-368-8770, ext 21

Ben

Meet Ben

It has been said that the Pekingese is a sophisticated dog of undying loyalty and many subtle delights, who bonds very closely with his humans. This gentle fellow is Ben, clocking in at ten-years-old, ten being the new five! Active and outgoing, he’s always ready for a walk around the grounds, meeting and greeting friends along the way. Incredibly charming, clever and confident, he knows how to use that to his advantage. Opinionated when it comes to matters of the heart, he’s hoping to find his perfect match and a forever home, settle in and live happily ever after. If you have a similar plan, stop by Little Shelter in Huntington to take a Peke at a boy named Ben! Call 631-368-8770, ext 21.

Carrots

Meet Carrots

This very handsome boy arrived at the Brookhaven Animal Shelter after being found injured on the road by an Animal Control Officer. His arm has since healed and now he is waiting for his furever home. Carrots is sweet, adorable, sometimes playful and sometimes lazy kitty who is looking for a family to love. He is a relaxed guy who loves to get pet and those cheeks will just make you melt. Estimated to be 3 to 5 years old, 9.13 pounds, he is up to date on vaccinations, micro-chipped and FELV/FIV negative. Fill out a Matchmaker application online at www.brookhavenny.gov or call 631-451-6950.

Mara

Meet Mara

A woman of mystery, meet Mara, a ten-year-old Collie mix up for adoption at Little Shelter in Huntington. Retired from government work, she’s enjoying her free time and the ability to take up new hobbies and explore her interests. Busily clipping coupons when she’s not looking for her glasses, she a savvy shopper, always finding the best deals on toys, treats, and comfortable bedding. Happy to accompany you on a leisurely stroll, she’ll nod in agreement with your opinions, supportive of all your endeavors, while reminding you that seniors have a lot of wisdom, experience and ideas to contribute. Stop by to meet Mara and help write her next chapter…we guarantee a happy ending! Call 631-368-8770, ext 21.

*Mara is not housebroken.

Prince

Meet Prince

Prince arrived at the Brookhaven Animal Shelter because his family was moving and they were unable to take him. Upon arrival he was a bit confused as to what happened to his people and how he ended up homeless, alone and in the animal shelter. Prince is one of those dogs that needed some extra time, after all he was with his family since he was a pup and he will be 8 years old in June. 

His previous owner describes him as an outgoing guy who is playful, high energy, friendly, an amazing partner who loves to show affection and be with you. Prince is hoping to get a second chance at a good life with a human to love and a place to call his own. He just needs a chance. He is housebroken, crate trained, loves his bed, knows sit and is very treat motivated. He is great at catching his treats mid air. He will need a home with children over 10 years old and he will do best as the only pet. He is about 76 pounds, 7.5 years young, up to date on vaccinations, neutered, micro-chipped and heartworm negative. 

If you are interested in meeting Prince and making him part of your family, fill out a Matchmaker application online at www.brookhavenny.gov or call 631-451-6950 to arrange a meet and greet.

Free rabies clinic

The Town of Brookhaven Animal Shelter and Adoption Center, 300 Horseblock Road, Brookhaven will hold a free Rabies Clinic on Saturday, April 22 from 10 a.m. to 1 p.m. The clinic is open to all Town residents and offers free rabies vaccinations for all dogs, cats and ferrets and free cat/dog FVRCP or DAPPCV vaccine. Dogs must be on a leash. Cats and ferrets must be in a carrier. No appointment necessary. For more information, call 631-451-6950.

Rescue is a lifestyle. Adopt, don’t shop!

Check out the next Paw Prints in the issue of May 11.

Paw Prints is generously sponsored by Mark T. Freeley, Esq.

 

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METRO photo

By Jennifer B. Cona, Esq.

Jennifer B. Cona, Esq.

All trusts are not created equally; there are many different types of trusts used for a variety of purposes, such as asset protection planning, financial management, probate avoidance and tax planning. Two common types of trusts in estate and asset protection planning are revocable and irrevocable trusts.

A revocable trust is a trust where you, the trust creator, reserve the right to revoke or change the trust at any time. If properly structured and funded, a revocable trust can be helpful in avoiding probate and allowing for easier management of assets in the event of incapacity. If you own homes in more than one state, it may make sense to place your out-of-state property in a revocable trust to avoid the need for probate in two states. Beware, however, that a revocable trust offers no asset protection. For Medicaid purposes, all of the assets in a revocable trust are considered available and may have to be spent down on the costs of care.

The better option for most older adults is an irrevocable trust. This type of trust cannot be revoked or changed by you alone, but can be with the consent of the trust beneficiaries. The benefit of making a trust irrevocable is that it can be structured as a Medicaid asset protection trust.

An irrevocable trust set up for asset protection purposes can hold almost any type of asset, including your home, bank accounts, and investments. You cannot have access to the principal of the trust, but you can retain the right to receive the income (dividends and interest). After five years have passed, the assets held in the trust are protected with respect to Medicaid. You would not have to spend down those assets on the cost of care; they are protected and will be inherited by your beneficiaries.

By properly planning ahead, your assets can be maintained for quality-of-life items and ultimately left to your heirs. But creating the trust is only the first step. The trust also must be funded, meaning assets must be transferred or re-titled into the name of the trust. For example, bank and brokerage accounts need to be retitled in the name of the trust. When transferring real property to a trust, you will need to sign a new deed naming the trust as the owner of the property.

For many families in the metro NY area, their most valuable asset is their home. As such, we often transfer title to the home to the irrevocable asset protection trust in order to protect its value. You can still sell your home, purchase a new property, keep your real estate tax exemptions, and no one can sell your house without your consent. Other assets can be placed in a trust for asset protection purposes as well, such as investment accounts, bank accounts, mutual funds, and life insurance. 

With the escalating cost of healthcare, it is more important than ever for older adults to protect the assets they worked their whole lives to save from a sudden healthcare crisis. An irrevocable trust is an important tool in that asset protection plan. 

Be sure your Elder Law and Estate Planning attorney understands the extent of your assets and listens carefully to your concerns and goals so that together you can create a customized trust, estate and elder law plan.

Jennifer B. Cona, Esq. is the Founder and Managing Partner of Cona Elder Law located in Melville and Port Jefferson. The law firm concentrates in asset protection, estate planning, Medicaid benefits, probate and special needs planning. For information, visit www.conaelderlaw.com.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

As we enter a new year, it’s important that there is an understanding of the updated estate and gift taxes on both the federal and state level. 

The 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 is for 2022 is $12.06 million. This means that an individual can leave $12.06 million, and a married couple can leave $24.12 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.

There are no 2022 changes to the rules regarding step-up basis at death. That means that when you die, your heirs’ cost basis in the assets you leave them are reset to the value at your date of death. 

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 2022. This means a married couple can use the full $24.12 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 2022 the annual gift tax exclusion has increased to $16,000. This means that an individual can give away $16,000 to any person in a calendar year ($32,000 for a married couple) without having to file a federal gift tax return. 

Despite the large Federal Estate Tax exclusion amount, New York State’s estate tax exemption for 2021 is $5.93 million. As of the date of this article, the exact exclusion amount for 2022 has not been released. It is anticipated to be a little over $6 million in 2022. New York State still does not recognize portability.

New York has a three-year lookback on gifts as of January 16, 2019. However, a gift is not includable if it was made by a resident or nonresident and the gift consists of real or tangible property located outside of New York State; while the decedent was a nonresident; before April 1, 2014; between January 1, 2019, and January 15, 2019.

 Most taxpayers will never pay a federal or New York State estate tax. However, there are many reasons to engage in estate planning. Those reasons include long term care planning, tax basis planning and planning to protect your beneficiaries once they inherit the wealth. 

In addition, since New York State has a separate estate tax regime with a significantly lower exclusion than that of the Federal regime it is still critical to do estate tax planning if you and/or your spouse have an estate that is potentially taxable under the New York State law. 

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

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LIVE WEBINAR: Burner Law Group, P.C. presents a free webinar titled 2022: The Year of Trusts on Thursday, Jan. 20 at 2:30 p.m. Attorney Britt Burner will discuss the anatomy of trusts, the types of trusts used in Estate and Medicaid planning and how they can benefit you and your loved ones. To RSVP, call 631-941-3434 or email [email protected].

 

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I am starting to work on my estate plan and am having trouble deciding who I should name as guardian of my three children in the event I die when they are still minors.

THE QUESTION: Can you provide some guidance on what factors I should consider when making a decision about an appropriate appointment?

THE ANSWER: I can certainly provide guidance about choosing a guardian but I want to first commend you on planning ahead. So many people put off estate planning and the end results are often less than optimal.

After many years helping clients develop their estate plans, I have come to the conclusion that the decision as to who will serve as guardians of their children is the most difficult decisions my clients face. This is particularly true when the client does not have family in the area. That being said, there are certainly situations where friends may be more suitable guardians than family members.

When choosing a guardian, you want to name someone who is willing and able to raise your children in an environment similar to the one they are familiar with and one in which they can thrive. Whoever you chose as guardian should have values that are similar to yours and be willing to love and nurture your children.

Not only should you look at the relationship between the person you are considering as guardian and your children but also the relationship between that person’s children and your own. Are the children similar in age? Do the children get along? Do they have common interests? If the proposed guardian does not have children, is that because she doesn’t want children? These are the sorts of questions you should be asking yourself.

Since you will likely want your children to continue to have a relationship with your family regardless of who is appointed as guardian, the relationship between the guardian and family members may be a factor.

Where the proposed guardian lives and her living arrangements also come into play. Does the guardian live locally so that your children can stay in the same school district or will they have to relocate out of state? Does the guardian have room to take in three children or will the guardian need to build an addition or move in order to welcome your children into her home? If the guardian’s living arrangement is not suitable, does she have the funds to remedy the situation?

While money should not be the overriding factor in deciding on a guardian, if the person you want to name does not have the means to take in and care for your children, you can address this issue in your will. By setting aside assets in a testamentary trust which can be distributed to the guardian to cover certain costs, you can decrease the chance that the guardian will suffer economic hardship as a result of caring for your children. Funds that remain in the trust when your youngest child is no longer a minor can be distributed to your children.

While the discussion above is far from exhaustive, it sets forth many of the things you should think about when deciding on who to name as guardian of your children. However, do not assume that the decision is yours alone. Ask the person you would like to name as guardian if she is willing and able to accept the responsibility of raising your children. Upon your death, you don’t want the person you named as guardian to be surprised.

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.

In New York State, any individual over the age of 18 may designate an individual to make medical decisions on his/her behalf by signing a health care proxy and designating a health care agent.  

The health care agent is only authorized to act if your doctors determine you can no longer make your own medical decisions. By signing this document and designating an agent, you avoid any confusion or issues when it comes time for your family to make a medical decision on your behalf as your family and the doctors already know who you want to make those decisions. 

A valid health care proxy will allow your health care agent to make medical decisions for you if you cannot with any health care professional, not only decisions while you are in a hospital or nursing home.   

Additionally, when signing a health care proxy, it is also very important to sign a second document, called a living will, which states your preferences as they relate to life-sustaining treatment (medical treatments/procedures that, if not provided, will result in the patient’s death). Examples of life-sustaining treatments include cardiac pulmonary resuscitation (CPR), a feeding tube and ventilator.    

A living will is important because, although your health care agent can make most medical decisions on your behalf, a health care agent must know your wishes as they relate to life-sustaining treatment in order to make those specific decisions on your behalf. A correctly executed living will is “proof positive” of your wishes as they relate to life-sustaining treatment and cannot be questioned by other family members who may disagree. 

If you do not have a health care proxy and are admitted to a hospital or nursing home, the Family Health Care Decisions Act enacted by New York State will determine who can make medical decisions on your behalf. This act provides a hierarchical list of people who may make your medical decisions if your doctors determine that you lack the capacity to make your own medical decisions.   

The list is: court-appointed guardian, spouse/domestic partner, a child who is over 18 years old, a parent, a sibling or a close friend. The issue many people may encounter is that most people have more than one child who can act as the person who will make their health care decisions. In this situation, the doctors would have to specify one of the children to make the decisions, which can cause tension and disagreement among the children. Further, the Family Health Care Decisions Act is only applicable to decisions while a patient is in the hospital or a nursing home. Once a patient is discharged, the person designated to make the medical decisions no longer has authority to do so.  

In order to be certain the person you want is empowered to make your medical decisions, a health care proxy is the preferable option. It is also wise to sign a living will so your health care agent knows your specific wishes as they relate to life-sustaining treatment. It is best to consult with an estate planning attorney who can advise you on all your options and ensure your documents are valid.

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: I am one of four children. My siblings are Joe, Bill and Mary. My mother died last month. About 15 years ago, she went to her attorney and had a will prepared in which she named me as executor.

Rather than divide her estate equally between her four children, my mother essentially disinherited my brother Joe and divided her estate equally between me, Bill and Mary. At the time she executed her will, the reason my mother gave for her decision to leave Joe out was that he ignored her and was never around when she needed help.

About 10 years ago, Joe moved to a house within a mile of my mother’s house and started spending time with her. He has encouraged his children to visit their grandmother and my mother and Joe’s wife and children have actually vacationed together. Since he lived closer to my mother than any of her other children, Joe became the one my mother relied upon whenever she needed assistance of any kind.

Over the years, Joe and my mother developed a very special relationship. I don’t know why my mother never revised her will but I am convinced, based upon her relationship with Joe and things that she told me, that she would want him to receive a share of his estate.

THE QUESTION: As the named executor, am I able to divide my mother’s estate into four equal shares so that Joe receives one-fourth of the estate? I feel terrible leaving him out but Mary and Bill are adamant that I must follow the instructions set forth in my mother’s will. Are they correct?

THE ANSWER: Unfortunately for Joe, Bill and Mary are correct. As executor, it is your responsibility to marshal your mother’s assets and to distribute them in accordance with the terms of her will. As much as you may want to include Joe, and as convinced as you may be that that is what you mother may have wanted at the time of her death, you do not have any discretion with respect to the distribution of your mother’s assets.

If you unilaterally decide to pass part of the estate to Joe, Bill and Mary will be well within their rights to ask the court to remove you as executor. They could also ask that the judge surcharge you so that you would be personally responsible for the funds that were diverted to Joe.

The only way you can pass a share of the estate to Joe is if Bill and Mary agree that Joe should share in the estate. If everyone is in agreement, it is simply a matter of you, Bill and Mary each transferring a portion of your inheritance to Joe. If Bill and Mary do not want to share, you can always give Joe some or all of what you are entitled to under the will. As long as Bill and Mary receive what they are entitled to under the will, they will not have a basis for objecting.

It is unfortunate that your mother did not review her will and revise it once her relationship with Joe improved. If she had gone back to her attorney, it would have been relatively easy for the attorney to prepare a new will for your mother in which all of her children were named as equal beneficiaries, or to prepare a codicil to her will that would have the same end result.

It is important that people understand that estate planning is not the sort of thing that is done once and forgotten. Wills and other estate planning documents should be reviewed periodically and changed to reflect changed circumstances. If your mother had revised her will or had a new will prepared that took into consideration her improved relationship with Joe, you would not be in the position you are now of trying to make things right.

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate planning, estate administration, real estate, marital agreements and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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Accountings are part of the administration of an estate, regardless of whether the decedent died with a will or intestate.

By Nancy Burner, ESQ.

Nancy Burner, Esq.

There are many steps and layers associated with the administration of an estate. Ultimately, for most estates, the goal is to distribute the assets to the respective beneficiaries named in the decedent’s will or are intestate heirs pursuant to the laws of intestacy. As part of this administration process, and prior to making any final distributions, the beneficiaries of the estate are entitled to receive and review an accounting prepared and provided by the fiduciary for the estate.

One of the fiduciary duties the executor or administrator is tasked with is to marshal the assets of the estate. The administrator reports to the beneficiary the assets of the estate; the income collected during the pendency of the administration; the expenses, debts and claims that were paid on behalf of the estate; and the amount and value of funds that ultimately remain on hand to be distributed to the beneficiaries.

The function of the accounting is to provide a clear and concise review, in proper reportable form, of all of the estate receipts and expenditures of the estate so that the beneficiary fully understands exactly why he or she is receiving a certain sum of money. As discussed above, once the accounting is approved, the ultimate distribution is made in accordance with the terms of the probated will or as provided by the laws of intestacy.

Once provided with the accounting from the fiduciary, the beneficiaries of the estate generally have questions regarding the transactions of the fiduciary. It is important that the fiduciary respond and address any concerns the beneficiary may have regarding the administration of the estate.

After explanation and substantive discussions, most accountings are approved by the beneficiaries and the estate fiduciary can proceed to the next and likely final step of making final distributions.

Conversely, beneficiaries also have the legal right to object to the accounting provided by the fiduciary. Once this occurs, there are provisions in the Surrogate’s Court Procedure Act (SCPA) and other statutes that provide a means by which the beneficiaries can investigate any questions they have about the administration of the estate.

Specifically, SCPA 2211 entitled, “Voluntary account; proceedings thereupon” allows a party to take oral testimony of a fiduciary to examine all of the papers relating to the accounting. These papers include, but are not limited to, bank statements, brokerage statements, deeds, tax returns, financial records, bills and receipts. Following the completion of the SCPA 2211 examination, a decision can then be made by the beneficiaries as to whether to file formal objections to the accounting.

The Surrogate’s Court in New York generally encourages interested parties to resolve their disputes, including any accounting contests, without extensive court intervention, proceedings or a trial as these proceedings can be costly and time consuming.

Accountings are part of the administration of an estate, regardless of whether the decedent died with a will or intestate. Accordingly, whether you are the fiduciary or a beneficiary, it is important to consult with an experienced estate administration attorney to assist and guide you through the accounting process.

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

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Many boomers plan on using their assets to make their golden years golden.

By Linda M. toga, Esq.

Linda M. Toga, Esq.

THE FACTS: My husband and I are in our sixties and have three grown children. All were given the same opportunities growing up, but they did not all take advantage of those opportunities or make wise decisions about their futures. Our two daughters are financially secure and doing very well. Our son, however, has struggled and we expect will continue to struggle to make ends meet his entire life.

My husband and I have accumulated significant assets over the years. We have been generous to our children and have made an effort to treat them all the same despite the differences in their financial well-being.

Despite this fact, my son seems to be under the impression that because he needs more, he is entitled to more. He has made comments on a number of occasions suggesting that since we have the means to make his life easier, we should do so. It is clear that he expects that we will be leaving him a sizable inheritance, perhaps even more than we leave our daughters.

We are bothered by these comments for a number of reasons, not the least of which is that my husband and I are planning on using our hard earned money to travel and, if needed, to cover our health care costs. While we fully expect that all of our children will inherit some money from us, I do not believe that we will be leaving any of them substantial assets.

THE QUESTION: How do we make this clear to our son who seems to think he will see a windfall when we die?

THE ANSWER: You and your husband are not alone in having accumulated significant assets that you hope to spend on yourselves. Many boomers benefited by parents who were conservative savers and cautious spenders. Consequently, these parents often accumulated more wealth than they spent and passed that wealth on to their boomer children.

The boomers, on the other hand, may not have been such conscientious savers. Even if they were, they are finding that they are living longer, may need more money for health care and often believe that they need not leave substantial assets to their children since they did so much for them during their lives.

Like you and your husband, many boomers plan on using their assets to make their golden years golden. That is your right. You earned it. You can spend it. However, if you do not want your son to be surprised or resentful when he does not inherit the kind of money he may expect will be coming his way, the best thing to do is to tell him outright.

Perhaps you can share with him the choices you made over the years that resulted in having a significant nest egg. Then tell him how you hope to spend your hard earned money on yourselves while you enjoy a long and healthy life.

You may discover that the comments he has made about a large inheritance were made in jest and that he isn’t really counting on a windfall. That would be the best scenario.

Even if he expresses disappointment and/or anger, you and your husband should feel better about the fact that you were open and honest with him. He can ignore what you say or he can use what you tell him to better plan for his future. In either case, having the conversation will ensure that when you and your husband pass away, he is not blindsided.

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of elder law, estate administration and estate planning, real estate, marital agreements and litigation. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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