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Estate Planning

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Establishing a clear and thorough estate plan is essential for artists to maintain control over their artwork and preserve their legacy. An artist’s estate not only includes physical art, but a bundle of intellectual property rights, including copyrights. Additionally many artists have art collections that include others artists’ works as well as their own. The artist’s own art work is generally treated differently than their art collection, but both can be hard to value at death.

Generally speaking, at death one can dispose of these assets either through a Last Will and Testament or a Living Trust. With either document, an artist can specify not only who is to inherit a particular work of art, such as a family member or art gallery, but how the artwork is to be managed. For example, the artist can specify the proper storage and handling, appraisal, and insurance for the art work. Professional art appraisers and dealers can be hired to find buyers or exhibit the art to a wider audience. If doing so, it is important to set aside some estate assets to pay for the upkeep and handling of the art. If the Executor or Trustee is left to handle the art without any monetary resources, the plan will not work.

The main difference between a Will and a Trust is that a Will must be validated through Surrogates Court in a probate proceeding. Probate takes several months, sometimes years, for the nominated Executor to be officially appointed and imbued with the authority to collect the decedent’s assets, pay off any debts, and distribute the property to the beneficiaries according to the terms of the Will. 

A Living Trust, in contrast, is a separate legal entity created during one’s life to avoid the probate process. Provided the art work and intellectual property are transferred into the trust during life, the trust assets will pass free from court interference at death, avoiding the costs and delay of probate.

Avoiding probate is often appealing for artists because artwork and copyrights are particularly difficult to categorize and value in a probate petition. In addition, using a trust ensures privacy whereas a Will becomes public information when it goes through the courts. 

Further, a trust created during life can have provisions regarding incapacity, ensuring that precious pieces of art are properly cared for by the successor trustee in the event the artist can no longer maintain the works. Finally, some pieces of art cannot sit for the years it may take to go through the probate process.

The main advantage of a Living Trust is that it is not subject to continuing court oversight. If someone creates a trust for their art in their Will, any changes must go through the courts. For example, any change to the trustee would require court approval. Not so if the art trust was created in a Living Trust. A Living Trust can allow the beneficiaries to remove and replace a trustee without court interference. This is particularly important in artist estates where the Trustee is a professional instead of a family member. Many famous artist’s estate were mishandled by so-called trusted advisors. Avoiding the costs of litigation is reason enough to create a trust for artwork – especially if the artist is well- known.

An experienced estate planning attorney can help create an effective strategy for the artwork in your estate, ensuring your collection ends up in the right hands after death. Artwork can simply pass outright to beneficiaries if there is no substantial resale market. But, if the artist had established sales throughout their life, creating a trust or foundation at death to hold the art is the better route. As with any estate, the goal is to minimize in- fighting. Since art is so personal and cannot be easily divided, it is even more important to bequeath your works of art in a way that does not cause conflict.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

When the SECURE Act passed in 2019, the biggest impact on estate planning was the elimination of the “lifetime stretch” for most beneficiaries of individual retirement plans (IRAs). 

Before the SECURE Act, a beneficiary of an IRA had the option to take distributions over their own life expectancy. This allowed families to pass down tax-deferred accounts and accumulate wealth tax free across generations. Now, the only beneficiaries eligible for the stretch are spouses, disabled or chronically ill individuals, minor children of the plan owner, and those not less than ten years younger than the plan owner. For non-eligible beneficiaries, the 10-year rule applies. This rule requires that the beneficiary withdraw the entire inherited retirement account within 10 years.

The new SECURE Act 2.0, passed on January 1, 2023, brought new rules and clarifications. The original SECURE Act was silent on whether the 10-year payout rule required distributions on an annual basis. SECURE Act 2.0 clarifies that the beneficiary must take out at least the required minimum distribution each year, with a full payout by the tenth year. Luckily, anyone who inherited an IRA before the clarification will not be penalized for failure to take out the required minimum distribution. 

SECURE Act 2.0 has brought relief for stranded 529 Plans. Unused 529 funds can now be rolled over into a Roth IRA without a penalty. Beginning in 2024, the beneficiary of a 529 Plan can roll funds (capped at $35,000.00) into a Roth IRA. It used to be that a 10% penalty was imposed, and the withdrawals taxed if not used for qualified educational expenses. To qualify, the 529 account must have been open for at least 15 years. Keep in mind that there is a limit to the annual contribution amount, which is currently set at $6,500 for 2023. So it would take five years to move the maximum amount allowed into the Roth.

The new SECURE Act also fixed the issue of leaving a retirement account to a Supplemental Needs Trust. The Supplemental Needs Trust was not being afforded the lifetime stretch if the remainder beneficiary was a charity. SECURE Act 2.0 allows for a charitable remainder beneficiary without the loss of the stretch for the primary disabled beneficiary.

Another boon is that the age that a person must start taking their required minimum distribution has increased to 73 from 72. The penalty for not taking timely distributions has also decreased. For those 64 or younger, SECURE 2.0 increases the minimum age to 75 starting in 2033. This allows individuals to keep money in their retirement accounts longer, allowing it to grow without incurring taxes on withdrawals.

The SECURE Act and SECURE Act 2.0 have made major reform to longstanding retirement planning. It is advisable to speak with your estate planning attorney to discuss if these changes warrant updates to your estate plan.

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Various types of property, such as bank accounts and real estate, can be owned jointly with another person(s). Depending on the type of joint ownership, the property may pass automatically to the joint owner, outside of probate and those named in the will.

A will only governs assets in the decedent’s sole name that do not have a designated beneficiary. For example, if a co-owner of a checking, savings, or deposit account were to pass away, the account would automatically become solely owned by the surviving owner, outside of probate, and the will of the deceased owner would not apply.

Real estate can be jointly owned in several different ways, each coming with a different set of rules:

Joint Tenancy: Also known as “Joint Tenancy with Rights of Survivorship,” Joint Tenancy provides that upon the death of a joint owner, that owner’s share automatically goes to the surviving joint owner and does not pass through probate and is not governed by a will. 

For example, if Mary and Bob owned property as Joint Tenants and Bob passed away, Mary would automatically become the sole owner even if Bob’s will directed that all his property should pass to his children. When Mary passes away the property would pass according to her will since she is now the sole owner. The main advantage of Joint Tenancy is that it avoids probate upon the death of the first Joint Tenant and probate (the process by which the court verifies the validity of a will) is typically costly and takes several months to complete.

Tenancy by the Entirety: Tenancy by the Entirety is a type of joint tenancy only available between spouses and is valid in a few states including New York. As with Joint Tenancy, upon the death of the first spouse their interest automatically passes to the surviving spouse outside of probate and is not governed by their will. 

In addition to avoiding probate, Tenancy by the Entirety provides several protections in that one spouse cannot mortgage or sell the property without the consent of the other spouse, nor can the creditor of one spouse place a lien or enforce a judgment against property held as tenants by the entirety. 

Tenancy in Common: Here, there is no right of survivorship and each owner’s share of the property passes to their chosen beneficiaries upon the owner’s death. Tenants in Common can have unequal interests in the property (e.g. 50%, 40%, 10%) and when one Tenant dies their beneficiaries will inherit their share and become co-owners with the other Tenants. 

A Tenant in Common’s share will pass according to their will (if they have one) which means the nominated Executor will have to probate the will by filing a petition with Surrogate’s Court. However, a Tenant in Common can still avoid probate if their share of the property is held in trust, in which case the terms of the trust (rather than their will) would control how the property passes at death and no court involvement would be needed.

A comprehensive estate plan with an experienced attorney ensures that probate and non-probate assets work in harmony. In addition, there are capital gains consequences when transferring ownership interests during your lifetime — and such “gifts” should never be done without consulting an attorney or accountant. 

One of the biggest problems we see with DIY wills is the testator failing to account for the different types of ownership and what assets pass through the will.

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Spring is here and so is tax season. The income tax filing deadline this year is April 18, 2022. You have likely been gathering your documents or filing an extension. Since you are already working on putting your affairs in order, this is the perfect time to finally check estate planning off your to-do list. Why is now the best time to do estate planning when you are already stressed out about your tax documents?

You are already organized

You are already organizing your financials — expenses, bank accounts, 1099s. This is the same information you need to disclose to an estate planning attorney. Your estate just means “everything you own.” Your estate includes real property, bank accounts, retirement accounts, stocks and bonds, life insurance, business interests and any other valuables assets such as jewelry and art.

Maximize gifting next year 

If your income taxes are high or you regularly give money to family members, there may be a better way to maximize gift tax benefits. In 2022, individuals can gift up to $16,000 per year to as many people as they wish without incurring estate or gift tax. The recipient isn’t taxed on the amount received either. Individuals can also pay for other’s education and medical expenses estate and gift tax free. Although the federal exemption is very high right now at $12.06 million, it is set to sunset to $5.9 million in 2026. Estate planning attorneys can help you leverage this historically high exemption before it goes down.

Business succession planning 

If you own a business, you have likely already completed your returns. But have you thought about what would happen to your business if you became ill or passed away? Business succession planning is an integral part of estate planning — especially for small businesses. If you have any questions about your business structure, key person insurance or tax efficiency, now is the time to set up a meeting.

Save on income taxes

If your income taxes are too high, there are efficient ways to lower them. You can make donations to charity or transfer certain income generating assets to family members.

Changes in the law

Now is also a good time to review existing wills and trusts in light of upcoming changes in estate law. Do your beneficiary designations on your retirement accounts still make sense after the passing of the SECURE Act? If it has been more than a few years, you will want to make an appointment to review your documents with your attorney.

Protect your family 

Doing estate planning is one of the kindest things you can do for those you leave behind. Taking the time now to protect your family eases their burden later. If you have minor children or beneficiaries with special needs, estate planning is crucial.

An estate planner can draft an estate plan tailored to your situation — from simple wills and revocable trusts to asset protection planning — and organize your estate planning documents so everything can be kept safely in one place. We cannot know the future, but we do know that there is no way to avoid death or taxes.

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Congratulations! You’re going to be graduating from high school very soon and are (fingers crossed) heading off to college in the fall. In preparation, you are shopping for school supplies, bedding, a new wardrobe, and researching the best classes to take. What you’re likely not thinking about is ensuring you have the proper estate planning documents in place before taking that next step in your life.

Drawing up a will or advanced directives for a college student may seem like an unnecessary task and expense, but once you turn 18, you are considered an adult under New York State law. Since you are no longer under your parents’ care, they do not have an automatic right to make decisions on your behalf. While this may seem like your long-awaited initiation into the freedom of adulthood, the reality is that situations may arise where a parent or other family member’s input is crucial.

Students are especially prone to getting sick or injured and, combined with living on their own, make it necessary to put certain legal directives in place. The three documents every college student needs are a health care proxy, HIPAA release form, and durable power of attorney.

A health care proxy allows you to appoint an agent to make medical decisions for you if you cannot do so for yourself. You can only name one agent but can nominate alternate agents in case your primary agent is unable or unwilling to act. The HIPAA release form further authorizes your agent to obtain your medical information. Without these documents, your parent (or whomever you designate to make such medical decisions) is going to face resistance when it comes to inquiring about the status of your health or providing care instructions to your doctor.

The power of attorney names an agent to make financial decisions on your behalf. The power of attorney does not strip you of your financial powers but rather duplicates them so that your agent can act in your stead if you are incapacitated or otherwise unable to act. A power of attorney can be beneficial if you need someone to pay a bill, apply for financial aid, or hire a professional on your behalf, such as an accountant or lawyer.

Beyond the aforementioned documents, you may also consider a last will and testament and a living will. Although they sound similar, they are very different documents. Depending on the extent of your assets, either saved or inherited, you may want to designate beneficiaries in a last will and testaments or trust. A “living will” documents end of life decisions, such as whether you want to be kept alive by artificial means if you have an incurable disease or are in a persistent vegetative state.

Although these are questions that you will hopefully not face for decades, planning for your future is an important way of taking control of your life. Any new graduate — or eighteen-year-old for that matter — should make time to seek the advice of an Estate Planning attorney to discuss what documents should be in place as you enter the world of adulthood.

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

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Linda Toga, Esq.

By Linda Toga, Esq.

THE FACTS: For months now I have been meaning to schedule an appointment with an estate planning attorney to discuss my wishes with respect to a will, healthcare proxy and power of attorney. I have a lot of questions and really need some guidance as to what I should do and how I can best ensure that my wishes will be honored. Since the onset of the coronavirus crisis, I have been losing sleep over the fact that I do not have an estate plan in place. 

THE QUESTION: Now that law offices are closed and social distancing is a reality, is there anything I can do to move my estate planning process along? 

THE ANSWER: While estate planning is extremely important, at this point in time it is more important that you do your part to avoid the spread of the virus. I urge you to stay at home to the extent possible and, if you do leave the house, to be sure to wipe down frequently used surfaces, wash your hands often and follow the guidelines set by the government for social distancing. 

That being said, while you are at home, you can certainly give some thought to your estate plan and gather the information that will be needed in order for your estate planning documents to be prepared. Although I am not in my office on a regular basis, I am continuing to work with both current and new clients by phone and email. 

While personal contact may not be an option at this time, a great deal can be accomplished remotely and I welcome the opportunity to discuss with you your concerns and wishes. Also, it should be noted that the legislators in Albany and the New York State Bar Association are considering changes to the law that would allow for remote execution and witnessing of estate planning documents during this crisis. 

In the meantime, you should give some thought to who you want to name as your agent or agents in your advanced directives such as your power of attorney and healthcare proxy. It is a good idea to ask the people you are thinking of naming as your agents whether they are comfortable with acting in that capacity. Some people may not want to or may not feel they are capable of taking on the responsibility of handling your affairs or making end of life decisions on your behalf. 

While it is important for any agent that you name to know what your wishes are, it is absolutely critical that the person you name as your healthcare proxy be fully aware of the circumstances, if any, under which you may want certain types of treatments and/or procedures to be withheld.

Once you’ve decided on who you want to name as your agents and have discussed with those people your wishes, you should be sure you have the information such as the agents’ phone numbers and addresses that will be needed to prepare your advanced directives. 

In terms of your will, you should give some thought to what assets you have and what assets will pass under your will. Only assets owned by you individually as opposed to assets that are owned jointly, held in trust or subject to a beneficiary designation form will pass pursuant to your will. These assets are called probate assets. 

Once you have a handle on what assets are probate assets and what assets will pass outside your will, you can think about who the beneficiaries of your estate will be and if and how you want the assets divided. You should consider what will happen if a beneficiary predeceases you and whether you want assets to be distributed upon your death or held in trust for future distribution. In addition to how your probate assets will be distributed, think about who will handle your estate. At a minimum, you need to name an executor and a successor executor.

Although making decisions about who will serve as your agents and executor, what your wishes are with respect to end of life care and how your assets will be distributed may seem overwhelming, as I mentioned before, I am available by phone and via email to discuss with you the estate planning process and your unique circumstances. 

Once we have developed a plan, I will send you drafts of your estate planning documents for review. Hopefully by then a procedure will have been worked out for the remote execution and witnessing of your estate planning documents. If not, at least you will be ready to execute your documents in the presence of witnesses as soon as the restrictions that are currently in place are lifted.

In the meantime, I hope that the coronavirus crisis does not cause you or your loved ones undue stress or inconvenience and that you stay well. I look forward to hearing from you. 

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]. She will respond to messages and emails as quickly as possible. 

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By Linda Toga, Esq.

Linda Toga

THE FACTS: Just before my husband died we adopted a puppy we named Morris. Morris is a great source of comfort and joy and I cannot imagine being without him. My concern is that something may happen to me that makes it difficult or impossible for me to care for Morris. Although my children live close by, I cannot depend on them to care for Morris because of allergies and their living arrangements. My friends told me that I should include a pet trust in my will so that Morris’s needs will be met but, I understand that the provisions in my will will have no bearing on Morris’ care until I die and my will is admitted to probate.

THE QUESTION: What can I do to make sure Morris will be cared for in the event I am disabled or simply cannot take care of him any longer? 

THE ANSWER: To insure that Morris is cared for despite your inability to take care of him yourself, you should create an intervivos pet trust. An intervivos pet trust becomes effective as soon as it is executed and funded in contrast to a pet trust that is included in your will. The latter will not address Morris’s needs during your lifetime. 

In the pet trust you need to name the pet or pets that you want to benefit from the terms of the trust. If Morris is your only pet and you do not have plans to get another pet, you can name Morris as the sole beneficiary of the trust. People who have more than one pet or who expect to have other pets during their lifetime may want to identify the beneficiaries of the trust as “any and all pets” they may have at the time the provisions of the trust are triggered. Generally, the terms of a pet trust are triggered when the pet owner’s health deteriorates to the point that the caregiver must assume responsibility for the pet’s care. Triggering events may include your illness, disability (either permanent or temporary) and your death.  

In addition to naming the pets who are to benefit from the provisions of the trust and the events that will result in Morris’s care being taken over by the caregiver, you need to name the person or persons who will be Morris’ caregiver. Be sure to name a successor caregiver in case the caregiver you name is unable to deal with Morris when the need arises. Before naming a caregiver, you should ask each potential caregiver if she is willing to take on the responsibility of caring for Morris. It is important to discuss with all potential caregivers whether their living arrangements can accommodate your pet, whether they or the people they live with have any health issues that may be adversely impacted by the presence of your pet and whether caring for Morris will be an undue burden, financially or otherwise. 

You should plan on funding the pet trust with enough money to cover Morris’s anticipated expenses for the rest of his life. Doing so will alleviate any financial burden on the caregiver However, money will not necessarily alleviate the burden created by the time and effort needed to feed and walk Morris and to get to him the vet and/or groomer as needed. Make sure the caregiver you chose understands exactly what is involved in caring for Morris. You should not assume that everyone will be willing and/or able to give Morris the care and attention he has grown accustomed to. 

Your pet trust should address what will be done in the event you are temporarily unable to care for Morris, as well as what will be done if your health deteriorates to the point that you can no longer care for him at all. Obviously, the trust should also provide guidance as to Morris’s care after your death and your wishes with respect to Morris’s burial or cremation. 

In the trust you should set forth any special needs that Morris may have in terms of diet, grooming or medication. You should also provide the names and contact information for the people who have been treating and grooming Morris. If you want Morris to be groomed monthly, state that in the trust. If you want Morris to be fed a special diet, state as much in the trust. The more information you can provide the caregiver, the more likely it is that Morris will be taken care of in accordance with your wishes. 

With respect to how much money to put into the trust for Morris’s care, you need to consider his age and current physical condition, as well as what you have historically paid for his care. Although you don’t want to set aside too much money, the trust should be funded with sufficient assets to cover routine expenses as well as expenses that will arise when Morris dies. You can indicate in the trust what will happen to the funds that may remain in the trust once Morris is gone. Many people have those assets pass to the caregiver in recognition of their service but, some people opt to have the funds pass to a charity that provides services to abandoned pets. 

There are clearly a lot that goes into the creation of a pet trust for a beloved pet like Morris. It is, therefore, important to seek the expertise of an attorney with experience in creating pet trusts since they are in the best position to insure that all of the important issues that should be addressed in the trust are, in fact, addressed. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, real estate, small business services 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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Nancy Burner, Esq.

By Nancy Burner, Esq.

Losing a spouse is an extremely difficult time in life and handling the administration of their estate can be a stressful experience. When you are ready, it is important to seek the advice of an estate planning and elder law attorney to discuss what needs to be done on behalf of your spouse’s estate and also what planning you need to do for your own estate.

Your attorney will want to review all assets held by your spouse, whether individually or jointly with you, and all assets in your name. It is also important to review any previous estate planning documents you may have in place, such as last will and testaments, trusts, powers of attorney and health care directives. A thorough review of the assets and estate planning documents will help your attorney advise you on what additional planning, if any, needs to be done.

If your spouse was the owner of an IRA or other tax deferred retirement account, you are likely named as the primary beneficiary on the account. You will want to ensure that you roll over this account into an IRA account in your name. It will also be necessary for you to put your sole name on any accounts that are held jointly with you and your spouse or that name you as transfer on death beneficiary.

Furthermore, it is important you update the beneficiaries under these accounts where appropriate, especially if your spouse was previously listed as your primary beneficiary. 

You will need to go through a court process to gain control of assets held in your spouse’s sole name without a beneficiary.  The court proceeding is called “probate” if your spouse had a last will and testament or “administration” if your spouse died without a last will and testament. New York State law provides a scheme for the distribution of assets in the case of a person that did not execute a last will and testament.

If your spouse had children, you and the children will share in the assets of the administration estate. There are also certain rights that a surviving spouse has to assets of the estate about which your attorney can advise you.

Lastly, a review of your current estate planning documents will help determine if updates to your plan are required. For example, you will likely need to change your agents listed under your power of attorney and health care proxy if each document listed your spouse as agent.

Additional changes to your will and/or trust may be required if there are changes to the tax law, your family structure or personal health status, such as a need for long-term care.

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

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Linda Toga, Esq.

By Linda M. Toga, Esq.

THE FACTS: I am a widow with modest assets and a small IRA. I have two grown children and two young grandchildren. My friends have been urging me to see an attorney about developing an estate plan.

THE QUESTION: Considering the size of my estate, is that really necessary? 

THE ANSWER: The short answer to your question is a resounding “Yes.” Estate planning is not just for the wealthy and is not limited to the preparation of a will. Estate planning touches on everything from wills, trusts and powers of attorney to health care proxies, living wills and spousal waivers. Even if you just want a will, there are countless issues that you should discuss with an experienced estate planning attorney to ensure that your will accurately reflects your wishes and takes into account your specific circumstances. 

The reason professional help is advisable is that, for the most part, people don’t know what they don’t know. In other words, a person can fill out a form will and sign it but, if she doesn’t know what questions to ask or what issues should be considered, she likely won’t know the adverse consequences of her uninformed choices. The end result is an estate plan that does not reflect the goals and wishes of the person, or worse, one that leads to protracted litigation. 

To avoid that, you should discuss with an attorney how your assets are titled and whether all of your assets will pass under your will. Assets that are jointly owned with someone else or that are subject to a beneficiary designation are nonprobate assets and will not pass under your will. How such assets are going to be distributed should be taken into consideration when developing an estate plan.  

You should also discuss with your attorney whether or not your probate assets will be passed in equal shares to your children. One question that needs to be addressed is whether you want your executor to take into consideration nonprobate assets that may pass to your children or loans that you may have given your children when determining the amount of their share. Another is how you want your estate to be divided in the event one of your children predeceases you. 

If you want the share allocated to a predeceased child to pass to his/her children, you should discuss with your attorney the option of including a trust in the will to protect the assets passing to the minor grandchildren.

Although both of your children would have equal rights to be named administrator of your estate if you were to die without a will, you should discuss with your attorney what is involved in the probate of your will and the administration of your estate. If your children do not both live locally, it may be burdensome to have them serve as co-executors. Or perhaps they don’t get along and naming a third party to handle your estate would be advantageous. Discussing these issues is an important part of developing even the most basic estate plan. 

As mentioned above, as part of your estate planning you should also discuss with an attorney the benefits of having a power of attorney, health care proxy and living will in place. Each of these documents plays an important role in an estate plan by either ensuring that your affairs are taken care of in the event you lack capacity or by making your wishes known with respect to medical treatment and end-of-life care.

Your attorney can advise you as to the duties and responsibilities of the agents named in a power of attorney and health care proxy. This will allow you to consider possible agents in light of the roles they would assume if named. Discussing this with your estate planning attorney will enable you to make informed choices. If you don’t engage in the process, you are essentially forfeiting the right to choose who will assist with the management of your assets while you are alive and who may be called upon to make life and death medical decisions on your behalf. When asked, most people admit that they want to be the one to choose. 

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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By Nancy Burner, Esq.

Nancy Burner, Esq.

We live in a modern world where blended families are becoming more and more common.  

A blended family is one made up of two spouses where at least one spouse has children from a previous marriage or relationship. Blended families can also include two spouses, their children and grandchildren from multiple relationships. Because of the complexity involved in a blended family, proper estate planning is essential to ensure a client’s goals are met.

Spouses used to create what we refer to as the “sweetheart will,” which distributes assets from the first deceased spouse to the surviving spouse, and then to their children upon the death of the surviving spouse. A sweetheart will does not adequately provide for individuals who have been married multiple times and have children from previous relationships for whom they want to provide.  

For example, Joe and Molly get married and have three children together. Molly dies and Joe gets remarried to Cindy. Cindy has two children from a prior relationship. If Joe and Cindy were to create sweetheart wills, upon the death of the first spouse, assets would be transferred to the second spouse, and upon his or her death, assets will only go to the children of the second spouse.  

If Joe were to be the first to die, his children would effectively be disinherited. Joe and Cindy may instead want to provide for all five children in both of their wills, or in the alternative, ensure that each spouse’s assets go to their children from their prior relationship.  

To make matters even more complicated, under New York State law, a surviving spouse has an automatic right to take a one-third share of their deceased spouse’s estate. This is something to consider when deciding what type of plan to have and for whom you want to provide. Additional considerations should be given to the likelihood of an estate plan being contested, since members from different families may be involved and may not be happy with the new relationship.  

As elder law attorneys, we are always thinking ahead and how to protect assets down the road from Medicaid. If there is a good chance a spouse will need long-term care in the near future, we will want to protect any funds that may affect eligibility. Therefore, a transfer of all assets to a surviving spouse may not be the appropriate plan under these certain circumstances. 

Beyond the blended family, similar issues may arise in nontraditional family situations, such as partners who decide not to get married; spouses with no children, but instead have close friends for whom they want to provide; and those who have a desire to leave assets to pets, charities or the like.

A family can come in all different shapes and sizes. It is therefore important to meet with an estate planning and elder law attorney to discuss your specific goals and come up with a creative way to accomplish the best estate plan for you.   

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

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