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By Nancy Burner, Esq.

Nancy Burner, Esq.

Medicaid will pay the long-term care needs for individuals who meet certain income and asset criteria. This means that Medicaid will pay the high cost of home care or nursing home care for seniors. 

Since Medicaid is a means tested program, many people believe that they cannot access benefits. This common misconception results in people failing to plan ahead and spending down most of their assets before realizing their mistake. Yet, even with little planning, families can preserve funds by moving assets out of the Medicaid applicant’s name.  

While everyone’s situation is different, the one irreplaceable document every senior needs is a durable power of attorney. 

A durable power of attorney allows an agent to step into the applicant’s shoes as a fiduciary. A comprehensive power of attorney allows the agent to transfer assets, gain eligibility and apply for Medicaid. This is crucial if the applicant has become incapacitated — or cannot easily meet with an attorney. Without giving an agent the authority to do this planning, optimal asset protection may not be possible.

Community Medicaid covers home care needs in the home. There is currently no lookback period for Community Medicaid. This means an applicant can transfer assets one month and apply for Medicaid benefits the following month. 

In contrast, with Chronic Medicaid — which covers nursing home care — there is a 5-year lookback. Thus, an applicant is penalized for transfers made for less than fair market value or “gifted” within the 5 years immediately before institutionalization. But, there are certain exempt transfers that can be made within the 5-year lookback period which make an applicant immediately eligible for Chronic Medicaid. 

Exempt transfers include transferring an unlimited amount of money to a spouse or disabled child. To effectuate these  transfers, the Medicaid applicant must either complete the paperwork or have a valid power of attorney allowing another to do so. 

Often, the Medicaid applicant does not have capacity to transfer the assets or complete the application.  The agent under a power of attorney can do this emergency planning and preserve assets even in the eleventh hour. The only alternative when there is no power of attorney and the applicant has no capacity, is applying to the court for guardianship.

When protecting income in the Community Medicaid setting, a pooled income trust is typically required. An applicant for Community Medicaid has an income limit of $904.00 per month, plus the cost of  health insurance premiums. Individuals with income that exceeds this level must contribute the excess income to their cost of long term care each month. 

This can be avoided with the establishment of a pooled income trust. If the Medicaid applicant does not have capacity, an agent through a power of attorney will need to establish a pooled income trust on their behalf. The power of attorney must specifically grant the agent the authority to establish trusts. Without such a power, the excess income cannot be preserved.

Finally, the actual Medicaid application and corresponding paperwork needs the Medicaid applicant’s signature. If the applicant is unable to sign the paperwork, an agent under a power of attorney may sign the paperwork on their behalf. Additionally, numerous financial documents must be submitted (i.e. proof of income, tax returns, bank statements). Gathering this information from specific institutions requires a power of attorney granting such authority. 

A valid and comprehensive power of attorney is an integral part of any estate plan, especially when dealing with Medicaid eligibility. The power of attorney is used in every step of the process and proves to be invaluable in preserving assets and income.

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.

The Consumer Directed Personal Assistance Program (CDPAP) allows Medicaid long term care recipients to choose their own home care attendant, including family members, rather than hiring an aide from a home care agency.

Under the standard Medicaid process, after Medicaid approval, the recipient undergoes an assessment with a Managed Long-Term Care plan (MLTC). The assessment determines the number of hours of care Medicaid will provide. After the assessment process, the Medicaid recipient signs up with a home care agency that is under contract with the preferred MLTC. The agency sends the aides to provide the care and Medicaid covers the cost.

Home Care aides are limited to assisting patients with activities of daily living (ADLs), which include but are not limited to walking, cooking, light housekeeping, bathing, and toileting. But, aides cannot perform “skilled tasks” such as administering medication or assisting with insulin injections. The aide can give certain cues, such as placing the medication in front of the patient indicating it is time to administer.

While many of our clients enrolled with an MLTC and home care agency are happy with the care provided, this is not the case for everyone. Some patients need an aide who performs skilled tasks. This is especially true for patients who live alone. Other patients already have a caregiver that they prefer to use instead of a home care aide they do not know.

CDPAP allows almost any individual to act as a paid caregiver, except for a legally responsible relative, such a spouse or guardian. A child, for example, who takes care of his or her parent can get paid under CDPAP. There is no prerequisite to get certified as a home health aide or a registered nurse. Training occurs at the home and the aide is not restricted to solely assisting with ADLs- but can also assist with skilled tasks.

It is important to note that under CDPAP, an aide is an independent contractor, not an employee of the agency. The patient is thus responsible for hiring the aides, scheduling the care, and ensuring the plan is carried out. Additionally, the patient cannot take advantage of some of the benefits an agency provides, such as sending in backup care if the current aide is sick or if an emergency arises.

Navigating Medicaid’s various programs can be confusing. It is important to discuss your options with an elder law attorney who has extensive Medicaid long term care experience. This way you get the best care that matches your specific needs.

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.

As of June 13, 2021, New York State has an amended Power of Attorney (“POA”) statute and a new statutory document to go along with it!  

On December 15, 2020, Governor Andrew M. Cuomo signed a bill into law that amended the New York State General Obligations Law as it relates to powers of attorney. A POA is a document by which an individual grants authority to another to engage in certain financial and business transactions on their behalf. The one granting authority is termed “Principal” and the person they are authorizing to act is the “Agent.” 

While the POA originated as a document to facilitate business transactions, it has been coopted over time by estate planning and elder law attorneys as an important tool for handling the affairs of a Principal with diminishing mental or physical capacity to handle their own affairs. In these situations, the Agent should be given the specific powers to handle banking transactions, retirement account transactions, sign contracts on behalf of an individual, and the list goes on.

The most visible change in the 2021 enactment is the elimination of the Statutory Gifts Rider; an attachment to the POA that allowed for various shifts of assets out of a person’s individual name. While it will still be necessary to list out the specific powers being granted relating to gifting, it will no longer be in a separate document but rather, will be incorporated into the POA document itself.

Another big difference will be the requirement that the Principal’s signature be witnessed by a notary and two witnesses (one of which can be the same individual that is serving as the notary). The witness requirement existed with the 2010 law, but only for Principal’s conferring gifting authority. The second witness was put added to the statute to give extra protection to a Principal that may be the subject of elder abuse or undue influence.  

The new statute also incorporates provisions to allow for someone to sign on behalf of a Principal that lacks the physical ability to sign. As an example, I have a client diagnosed with Parkinson’s Disease who has lost the use of her hands. With the new law, she can now direct someone to sign the document for her. She must still be present at the signing and be able to demonstrate her mental capacity to execute the document, but she will not have to worry that she can no longer sign her name.  

For anyone that has already seen an attorney and completed their estate planning the question becomes, do I need to sign a new POA? The answer will be different for each person. 

Any POA that was valid at the time it was executed will remain in effect but if the document is outdated or does not include all the powers that may be necessary down the road, it may be prudent to sign a new one. However, a change in law such as this is the perfect reminder to make an appointment with an estate planning attorney to have your entire plan reviewed, including your power of attorney.  

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.

There is no such thing as a honeymooner’s will, but maybe there should be. Once the honeymoon is over, the dress put away, and every conceivable photograph posted to social media, it is time to start considering the legal implications of getting married. 

There may be a name change, joint bank accounts and IRA beneficiary change forms. Most newly married couples fail to check estate planning off their lists because they consider themselves too young to worry about such things.

The uncertainty of the pandemic has caused almost everyone in the world — no matter what age — to consider their own mortality. A recently married couple needs to ensure that their newly entwined life includes each other in a legal sense, as well as in a practical sense, in that they need to know each other’s preferences under worst case scenarios. Most couples do not need more than a basic estate plan, consisting of Advance Directives and a Last Will and Testament.

Life & Death Decisions

Everyone eighteen years of age or older needs advanced directives: Living Will, Health Care Proxy and Power of Attorney. A Living Will allows someone to specify if they want to be kept alive by artificial means if they are in a vegetative state with no reasonable expectation of recovery. A Health Care Proxy allows a person to choose who will make medical decisions in case that person cannot do so. In New York State, only one agent can act under a health care proxy at a time, which avoids confusion and tearful showdowns. A Power of Attorney is a powerful document that allows the principal to name one or more people to handle a wide range of financial matters in case of incapacity.

Dying Without a Will

If a married person dies without a Will in New York State and has no children, the spouse inherits all the assets. This may not necessarily be what the newlywed couple wants — especially regarding heirlooms, ancestral real estate, or a closely-held business. What about real property that one spouse borrowed money to buy with the oral promise to pay back a parent or sibling? Nobody should ever rely on a spouse’s promise to carry out “informal” instructions after death – this rarely happens and creates family tension.

If married with children, the spouse receives the first $50,000 of assets plus 50% of the remaining assets; the other half goes to any minor or adult children. Since minors cannot receive assets outright, this creates a complicated Surrogates Court scenario. If the children are adults from a previous marriage – this automatic allotment may not be ideal. Remember, the intestacy statute is a default blunt instrument and leaves no room for nuance.

Finally, there are practical considerations to dying with a Will versus without, that affect loved ones and make a painful process worse. A Will can dispense with the need for a bond, ensures family members that they are provided for, and avoids unnecessary delays in transferring wealth.

An experienced estate planning attorney will be able to provide invaluable guidance on related issues as well, such as whether you need life insurance, business succession planning, and the best way to designate beneficiaries on retirement accounts. A couple should also explore the option of establishing a living trust to avoid probate, which is necessary when someone owns income producing property, a small business, or property out of state. Estate planning may not seem very romantic, but discussing life and death issues is the best way to plan for the long life ahead of you!

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

The IRS and the New York State Dept. of Taxation and Finance have extended the due date for personal income tax returns and related payments to May 17, 2021 due to the continued impact of COVID-19. METRO photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

In 2017, the Tax Cuts and Jobs 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 is a good thing because the federal estate tax rate is 40 percent.

Despite the large Federal Estate Tax exclusion amount, New York State’s estate tax exemption for 2021 is $5.93 million. Prior to April 1, 2014, the New York State estate tax exemption was $1 million, and many estates had to file New York State estate tax returns and pay New York State estate tax.

With the current exemptions, there would technically be no requirement to file either a New York State or federal estate tax return and no tax would be due. However, the inquiry does not end there. For example, if one spouse survived, and has approximately $5 million dollars in assets, it is recommended that he/she file a federal estate tax return to elect “portability” to capture the deceased spouse’s unused $11.7 million-dollar federal exemption. This would be necessary in the event of the living spouse’s assets appreciating over time and/or the federal estate tax exclusion decreasing leaving him/her with assets valued over the federal exclusion at the time of his/her death.

For those dying after December 31, 2010, if a first-to-die spouse has not fully used the federal estate tax exclusion, the unused portion called the “Deceased Spousal Unused Exclusion Amount,” or “DSUE amount,” can be transferred or “ported” to the surviving spouse. Thereafter, for both gift and estate tax purposes, the surviving spouse’s exclusion is the sum of (1) his/her own exclusion in the year if death, plus (2) the first-to-die’s ported DSUE amount.

In order for the surviving spouse to be able to use the unused exemption, the executor of the first-to-die’s estate must make an election on a timely-filed estate tax return. A timely filed return is a return filed within nine months after death or within fifteen months after obtaining an automatic extension of time to file from the IRS. Normally a federal estate tax return is only due if the gross estate plus the amount of any taxable gift exceeds the applicable exclusion amount (up to $11.7 million in 2021). However, in order to be able to elect portability, a federal estate tax return would have to be filed even if the value of the first-to-die’s estate was below the exclusion amount.

The problem occurs when the first spouse dies, and no estate tax return was filed. In that event, the second to die spouse could not use the deceased spouse’s unused exemption. What if the first spouse dies, no estate tax return is filed, and no election was made on a timely basis? Does the surviving spouse lose the exemption?

In June 2017, the IRS issued Revenue Procedure 2017-34. The Revenue Procedure is a simplified method to be used to make a late portability election. The IRS made this procedure applicable to estates during the two-year period immediately following the decedent’s date of death. This gives you 24 months to file rather than 15 months.

To be eligible to use the simplified method under the Revenue Procedure the estate must meet the following criteria:

(1) The decedent: (a) was survived by a spouse; (b) died after December 31, 2010; and (c) was a citizen or resident of the United States on the date of death;

(2) The executor was not required to file an estate tax return based on the value of the gross estate;

(3) The executor did not file an estate tax return within the time required; and

(4) The executor either files a complete and properly prepared United States Estate (and Tax Return) on or before the second annual anniversary of the decedent’s date of death.

If more than two years has elapsed since the date of death but all other criteria of Revenue Procedure 2017-34 were met, then the Executor would have to request a Private Letter Ruling from the IRS to obtain an extension of time elect portability and file a federal estate tax return.

For those that had spouses pass away after December 31, 2010, portability can be a valuable estate planning tool to save a significant amount of federal estate tax on the death of the second spouse. If a surviving spouse has assets that are close in value to the current federal exclusion amount, it is important to examine the records of the deceased spouse to make sure that a portability election was made on a timely filed federal estate tax return. If no return was filed, and no estate tax return was required to be filed, based upon this IRS Revenue Procedure it may not be too late to elect portability.

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.

When a co-owner of real property passes away, what happens next depends on how the co- owners took title to the property. 

Upon the death of a co-owner, it is necessary to review the last deed of record to make this determination. There are three ways to own property in New York as co-owners: tenants in common, joint tenants with rights of survivorship or tenants by the entirety.

Only married couples who were married at the time they took title to the property can own property as tenants by the entirety — a type of ownership that provides certain protections. If the property is owned as joint tenants with rights of survivorship or as tenants by the entirety, the deceased owner’s interest passes automatically to the surviving co-owner by operation of law. 

Generally, it is not necessary to have a new deed prepared removing the deceased co-owner. When the surviving owner sells the property in the future, the deceased co-owner’s interest can be disposed of by providing his or her death certificate to the title company. If the surviving owner decides to transfer the property during life for no consideration, such as to a trust for estate planning purposes, a notation on the deed should be made by the attorney who prepares it. Upon future sale, the death certificate will still need to be provided to the title company to prove that the survivor is the legal owner of the property.

If, however, the property is owned as tenants in common or if the deceased spouse was the sole owner of the property, the deceased owner’s interest does not pass by operation of law upon death. Instead, the deceased owner’s interest passes according to his or her Last Will and Testament or according to New York Law if the decedent died without a will.

While New York law technically provides that real property vests in the decedent’s heirs as of the date of death and can be transferred or sold by those heirs, the heirs may have issues with the title company insuring the transaction, especially within two years from the date of death. 

It is typically best to have an Executor or Administrator appointed to transfer or sell the property from the estate. However, in order for a fiduciary to be appointed, a probate or administration proceeding will be necessary in Surrogate’s Court.

It is important to note that if the deed is silent as to whether co-owners took title as tenants in common or joint tenants with rights of survivorship, the default is tenants in common. If the deed is silent but the co-owners were married at the time they took title, then it creates a tenancy by the entirety.

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

 

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Nancy Burner, Esq.

By Nancy Burner, Esq.

The Setting Every Community Up for Retirement Enhancement (SECURE) Act became  effective on January 1, 2020. While the Act was aimed at improving retirement savings, there is a negative change which affects those who inherit retirement accounts from the original  participant. 

Prior to SECURE, designated beneficiaries of retirement accounts could take  required minimum distributions from the account over their life expectancy. This allowed for  another lifetime of deferred income tax payments and increased growth.  

After SECURE, with few exceptions, beneficiaries will now have to liquidate an inherited  retirement account within ten (10) years. For those with large IRAs and not many  beneficiaries, this equates to a big tax bite! Accordingly, some are looking for ways to structure  the distribution of their retirement account after death in a more tax efficient way. Additionally, some people have serious concerns that a particular beneficiary may not have  the self-control (due to spending habits or addictions) to make the inheritance last their  lifetime.  

A charitable remainder trust (CRT) is an irrevocable trust that distributes a certain percentage of the trust property to the trust’s lifetime beneficiaries either for their life or for a term of up to 20 years. CRTs are most often structured as Charitable Remainder Unitrusts (CRUTs) where the trust document sets forth a certain percentage that will be distributed to the beneficiary for the term of the trust.  

The CRUT must provide that the charity receives ten percent of the present value of the bequest at the death of the participant. So for the individual beneficiary with a shorter life  expectancy, the CRUT can pay out an income stream over the course of their lifetime, much  like the old stretch IRA. If the beneficiary is younger, the trust would need to be for a term of  years in order to comply with the 10% rule (up to a maximum of 20). 

At the end of the term, the lifetime beneficiaries’ interest terminates, and the balance of the trust property is paid to charity of the Grantor’s choosing. 

Why are Charitable Remainder Trusts becoming popular after SECURE? Because these types of trusts are income tax exempt. Accordingly, if you name your Charitable Remainder Trust as the beneficiary of your IRA, at your death, your estate receives a charitable deduction for the portion that is attributable to the charity. Only when your beneficiary receives a  distribution from the trust, will the income portion of the distribution be subject to income tax.  

An example of how the CRUT would work is as follows: The CRUT is named as the  beneficiary of an IRA with $2 million as of the death of the participant. The CRUT cashes out the IRA income-tax-free, then pays a 5% income interest to the decedent’s chosen beneficiary, in this case $100,000 per year. 

Over time, the distribution may fluctuate as the investments increase or decrease in value. However, the income stream lasts for their life, and not just 10 years like it would if you named that beneficiary  directly on the IRA. Essentially, this reinstates the lifetime income stream that used to be available for beneficiaries of retirement accounts. At the death of the beneficiary, the remaining trust assets would be distributed to the charity.  

Some negatives with naming a CRT as the beneficiary are that the beneficiary is limited to an  income stream. If they were named as a beneficiary on the IRA directly, they could remove as  much as they would like, although every penny is taxable as ordinary income. 

The calculation on whether or not the CRT provides more in the hands of the beneficiary is going to depend on may things, such as how long they live and how much the assets grow. The longer the term  of the trust and the larger the trust assets, the more income the beneficiary receives. Thought of another way though, even if they receive roughly the same, there is a huge charitable gift at the end of their life as well which not only results in a charitable deduction, but fulfillment of goodwill.  

The desire to name a CRT as the beneficiary of a retirement account definitely has more appeal than ever after the SECURE Act, but like anything else in the estate planning arena, it’s not a one-size fits all. If you have retirement accounts and are charitably inclined, speak to your estate planning attorney to see if this is the right strategy for you. 

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.

When helping a parent or other adult loved one handle their affairs, we never think of the legal ramifications. As caregivers we just do what needs to be done. 

It starts out naturally enough — handling bills, writing out checks, paying property taxes, making doctor’s appointments. It is only when an impediment at the bank or hospital arises that caregivers realize that family members do not actually have the legal authority to handle these matters. Unfortunately, at that point your loved one may not have the mental capacity to give that power.

Every caregiver should make sure that three simple but crucial documents are in place: a Health Care Proxy, Living Will, and Power of Attorney. In fact, everyone should draft these “Advance Directives” while they are healthy. These simple but mighty documents can avoid a myriad of issues: guardianship hearings, asset depletion, and interfamily conflict.

A Health Care Proxy allows you to designate someone to make medical decisions for you if you are unable to do so for yourself. In most states, including New York, only one person at a time can fulfill this role in order to give healthcare providers clear direction. However, you can name multiple alternative proxies to act in case their predecessor is unwilling or unable to act. 

The New York State Family Healthcare Decision Act allows close family members to make such decisions but only if the person is in a nursing facility of hospital. Many times, caregivers need to make medical decisions outside of this context – even as to making appointments and deciding on routine medical procedures. Moreover, the statutory priority of decision makers (guardian then spouse then adult child then parent) is not always in line with the choice of proxy you may have chosen. Without a valid health care proxy, a “personal needs guardian” would have to be appointed by the court through a guardianship proceeding. Such proceedings can be expensive and intrusive.

A Living Will sets forth your end of life choices. Without evidence of your preferences, an agent under a health care proxy cannot make end of life decisions on your behalf. The agent must provide clear and convincing evidence of whether you would want cardiac resuscitation, mechanical respiration, artificial nutrition and hydration, antibiotics, blood, kidney dialysis, surgery or invasive diagnostic tests. 

Without documentation of your preferences, family members may end up in court arguing whether you would have wanted to be kept alive if your quality of life is so poor. A video, a letter, or a social media post could meet the “clear and convincing” burden.

A Power of Attorney is what gives caregivers the legal authority to take care of your financial affairs, such as writing checks and selling real estate. In New York, the Durable Power of Attorney allows someone, the “principal”, to name an agent to step into one’s shoes financially and act in the principal’s best interest. This is a powerful document that extends into incapacity and should only be granted to someone you trust completely. 

Although in NYS the statutory power of attorney can be downloaded for free, it does not include necessary modifications that an estate planning attorney would include. For example, these modifications are crucial for Medicaid planning and asset protection. Having a valid Power of Attorney avoids the necessity of an Article 81 guardianship proceeding to appoint a “property needs guardian.”

These simple Advance Directives should be a part of a checklist for everyone – caregiver and loved one. These are the type of legal documents that seem unimportant until you actually need them.

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.

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 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.