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By Britt Burner, Esq. & Brittni Sullivan, Esq.

The biggest concern that most have when they are in need of long-term nursing home care is that their primary residence will not be protected. This may or may not be true.  There are special rules surrounding the home that are different than other types of assets. 

To understand this fear, it is important to understand how one becomes eligible for Medicaid to assist with nursing home costs.  The applicant is permitted to have countable assets in the amount of $32,396, retirement assets in any amount so long as the retirement account is set up for a monthly distribution, and a pre-paid irrevocable burial.  

Applying for this program also involves a five-year lookback. This requires the applicant and spouse to provide full financial disclosure for the five-year period immediately prior to institutionalization. The purpose of the lookback is to see if the applicant or spouse transferred any assets out of their names.  If transfers were made, there will be a legal presumption that this was done for the purpose of applying for Medicaid, and a penalty will be assessed. The penalty will result in a time of ineligibility for services. 

However, there are certain transfers that are exempt and will not draw a penalty, this includes transfers of any assets to a spouse or to a blind or disabled child.  Specifically for the primary residence, transfers are exempt when made to a spouse, blind or disabled child of the applicant, a sibling with an equity interest in the home, or to a caretaker child. 

A caretaker child is defined as a child who has resided in the primary residence with the Medicaid applicant for the two years immediately prior to institutionalization and who, during that time has provided some level of care support to the individual who requires nursing home care.  Medicaid will closely scrutinize the transfer and ask for supporting documentation to prove residency for the caretaker child.  

For several reasons, this type of planning is best used in crisis planning and is not an advanced planning technique. First, there may be adverse tax consequences when you transfer the real property to the caretaker child.  Second, transfer to the caretaker child could thwart your estate plan to leave assets to multiple beneficiaries. Last, the transfer to the caretaker child can only happen immediately prior to your institutionalization.  Therefore, if the child is moved out at the time you require nursing home care, the exemption is lost.  

The fear of losing the home is common. Planning in advance can help ensure the primary residence is protected.

Britt Burner, Esq., Partner at Burner Prudenti Law, P.C., concentrates her practice in Estate Planning and Elder Law. Brittni Sullivan, Esq., Senior Associate at the firm, also focuses on Estate Planning and Elder Law. Burner Prudenti Law serves clients from Manhattan to the east end of Long Island with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Hon. Gail Prudenti, Esq.

Hon. Gail Prudenti, Esq.

Contesting a will can be a complex and sensitive decision, often fraught with emotional implications and legal challenges. Understanding when to object to a will is crucial for anyone who believes that the document does not accurately reflect the deceased’s intentions or who has concerns about the will’s validity. Here are key considerations for when a person may choose to object to a will.

Lack of testamentary capacity

One of the most common grounds for contesting a will is the assertion that the deceased lacked the mental capacity to understand what they were doing when they executed the will. If you believe that your loved one was not of sound mind—due to conditions such as dementia, severe illness, or mental incapacity—at the time the will was created, this may warrant an objection.

Undue influence

If you suspect that the deceased was coerced or manipulated into changing their will in favor of another person, this could be a valid reason to contest the will. Evidence of undue influence may include a significant change in the will that benefits a caregiver or a family member who had undue access to the decedent, especially if the decedent had previously expressed different intentions.

Fraud

If the will was procured through fraudulent means—such as misrepresentation about the contents of the will, deception regarding the nature of the documents, or coercive tactics— this may provide grounds for contesting it. If you believe that fraud was involved, it is essential to gather evidence to support your claim.

Improper execution

In many jurisdictions, including New York, there are specific legal requirements for executing a valid will. This typically includes proper signing and witnessing. If the will does not meet these legal standards—such as being signed by the testator in the presence of two witnesses—this could be a reason to object.

Revocation

If you have evidence that the deceased revoked the will prior to their death—perhaps through a later will or other direct actions indicating their intent to change their estate plan—this could justify an objection. Establishing the revocation of a previous will is critical in this scenario.

Disqualification of beneficiaries

Certain individuals may be disqualified from inheriting under a will due to their actions, such as felonies committed against the deceased or being an estranged spouse. If you believe that a beneficiary should not have been included in the will based on legal grounds, this may be a reason to object.

Timeframe for objection

In New York, for example, you generally have **seven months** from the date you receive notice that the will is being probated to file your objections, as outlined in **SCPA § 1410**. Failing to act within this timeframe could result in losing your right to contest the will, so it’s crucial to be aware of deadlines.

Consulting an attorney

If you are considering contesting a will, consulting with an attorney who specializes in trusts and estate litigation is highly advisable. An experienced attorney can help you evaluate the strength of your case, gather necessary evidence, and navigate the legal complexities involved in the contestation process.

Deciding to object to a will is a significant decision that should not be taken lightly. Understanding the grounds for contesting a will and the appropriate legal procedures is essential. 

Whether due to concerns about capacity, undue influence, improper execution, or other factors, it is important to consult with a qualified attorney to ensure that your rights are protected and that you are acting in accordance with the law. By doing so, you can make informed decisions that honor the memory of your loved one while safeguarding your interests.

Hon. Gail Prudenti, Esq. is the Former Chief Administrative Judge State of New York and a Partner at Burner Prudenti Law, P.C. focusing her practice on Trusts & 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 Britt Burner, Esq.

Britt Burner Esq.

A trend that has continued on an upward trajectory for years is the use of “living trusts” in estate planning rather than relying on a last will and testament (“will”). While living trusts are a great tool for transferring assets at death, determining if a trust or a will is better for you is dependent on your assets, circumstances, and personal goals.  Every person is different and therefore every estate plan should be tailored to the individual.  

A will is a legal document dictating how your personal items and monetary assets should be distributed at death.  If you die with assets titled in your sole name with no beneficiary, these assets must pass through your will.  What does this mean?  Your will must go through a court proceeding known as probate. It is not until the proceeding is completed that the Executor, the person nominated in your will to be responsible for your estate, is legally appointed by the court.  While the probate is pending, there will be no authority for the Executor to collect or distribute your assets pursuant to the terms of your will.  

While a will is an excellent estate planning tool, there are some downsides to relying on this document and the probate process for your estate plan. As part of the process of probate, the next of kin must be notified.  This could create a problem if the next of kin includes an estranged family member or distant relative whose whereabouts are unknown. Additionally, any documents filed as part of the probate proceeding will become a public record.  

Another negative consequence is the time it takes to probate the will, creating a delay in the Executor’s power to administer your estate. Even the simplest probate proceedings can take 4 to 12 months. Lastly, if you own properties in multiple states, an ancillary probate proceeding will have to be completed in each of those states before the Executor can control those properties.

In New York, there has been a strong shift to trusts in recent years due to the drawbacks stated above. A trust, like a will, directs how assets are to be distributed at your death.  Unlike a will, a trust is a private document that does not need to be filed with the court, there is no requirement to notify your next of kin about the trust administration after death, and the Trustee can administer your trust immediately.  The trust can also hold real property in multiple states, eliminating the requirements of ancillary probate proceedings.  

There are many different types of trusts that serve different needs.  For example, a revocable trust may be used for the sole purpose of avoiding probate in multiple states, while an irrevocable Medicaid Asset Protection Trust is used to protect assets should you need to apply for Medicaid to assist with the costs of long-term care. There are also irrevocable trusts that are used to reduce one’s taxable estate, or supplemental needs trusts used to protect those who receive government benefits.

A review of your current estate plan with an estate planning and elder law attorney will help determine if your current plan accomplishes your goals or if a shift to trust planning will be better suited for your needs.

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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 Britt Burner Esq.

Britt Burner Esq.

The holiday season is upon us!  Year-end often brings questions of gifting, whether it be to charity or to family and friends.  Gifting can be gratifying and can also provide an income tax benefit as the year comes to a close.  State and federal governments handle gifting differently, making it even more confusing and difficult to navigate.  

In New York State, there is no tax imposed on gifts made during your life.  However, if you do not live for three years beyond that gift, the amount given will be added back into your estate upon your death when determining if an estate tax is owed.  The estate tax exemption in New York is $6.94 million in 2024.  So if a person dies in 2024 and had given a gifts for the three preceding years, these would be added together with the other assets they owned at the time of death to see if they are beyond that number.  Staying under the New York exemption is critical because estates that go 5% beyond the exemption will be taxed on the entire amount, this is referred to as a “cliff.” 

The federal government operates under a different scheme when calculating gift taxes.  In 2024, you can give $18,000 per year, per person with no implications or filings required.  Gifts to a single person beyond that trigger a gift tax return filing and the amounts will be applied toward your individual lifetime exemption, currently $13.61 million.  This means that if your total estate is under that amount when you add together taxable gifts made during life and transfers at death, there will never be a gift or inheritance tax imposed by the federal government.  For individuals with estates above the threshold, individualized planning should be considered to minimize or eliminate estate taxes. 

If you are looking to make a charitable donation before the end of the year, there are several ways to accomplish this. One is an outright gift of a set sum of money. This can be done through a one-time or recurring donation to a charitable organization that qualifies as tax exempt under 501(c)(3) of the Internal Revenue Code.  Making a gift to your favorite cause can also provide you with an allowable deduction on your annual income tax returns.  

Gifting during life can also come in the form of a distribution from a tax deferred retirement account.  This gift is a qualified disclaimer and cannot exceed $100,000 in a given year.  The amount of the disclaimer counts towards the account owner’s annual required minimum distribution, providing you with an income tax benefit because it will not be counted as taxable income. 

Donor advised funds are another useful way to transfer assets to charitable organizations to receive an income tax deduction, all without making an immediate determination on the recipient of the funds.  The donor advised fund can be opened with a financial institution and the contribution you make will qualify as a charitable distribution for income tax purposes. 

However, rather than giving to a certain charity, you will actually be transferring the assets to an account that can be invested and enjoy tax-free growth.  Over time you can make distributions from the fund to qualifying charities in varying dollar amounts as you see fit.  The donor advised fund allows you to designate who will be responsible for determining the charities that will benefit from the account after your death. 

Understanding the rules and tax implications surrounding gifts to family, friends and individuals is an important first step.  In addition to gifting that is made while you are alive, it is also important to engage in estate planning to determine what will occur at your death to ensure your assets are distributed the people and organizations you care about most.  If you have not started this process, add estate planning to your list of 2025 resolutions. Happy Holidays! 

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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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There are three different property tax exemptions available to veterans. METRO photo

By Britt Burner, Esq.

Britt Burner Esq.

While a trust technically becomes the owner of your home when you sign a deed transferring ownership to a grantor trust, rest assured that you will still receive the same real estate tax exemptions and/or benefits that you received when your home was owned in your individual name. Both revocable trusts and irrevocable Medicaid asset protection trusts fall under this category of “grantor trusts.”

Many New York residents depend on property tax exemptions/credits to make ends meet. Prime examples of this are the New York State School Tax Relief Program (STAR) and the Enhanced School Tax Relief (E-STAR). The basic STAR program does not have an age requirement, but the property must be the primary residence of at least one owner. Additionally, all owners and their spouses who live on the property must not have an income of more than $250,000 combined.

The Enhanced School Tax Relief (E-STAR) requires that the property must be the primary residence of at least one owner who is 65 or older by the end of the calendar year in which the exemption begins. Surviving spouses may be eligible to retain the Enhanced STAR benefit. For 2025, the combined incomes of all owners (residents and non-residents), and any owner’s spouse who resides at the property must be limited to $107,300 or less to receive the Enhanced STAR benefit.

There are other exemptions available to senior citizens depending on where they reside. Local governments and school districts in New York State can opt to grant a reduction on the amount of property taxes paid by qualifying senior citizens.

Regardless of a homeowner’s age or income, there are also exemptions available to veterans and those who are disabled. There are three different property tax exemptions available to veterans who have served in the U.S. Army, Navy, Air Force, Marines and Coast Guard. Local governments and school districts may also lower the property tax of eligible disabled homeowners by providing a partial exemption for their legal residence. Those municipalities that opt to offer the exemption also set an income limit.

Knowing that the property tax benefits will be preserved in a Revocable Trust or a Medicaid Asset Protection Trust can ease the concerns about engaging in this type of planning. Transferring your house to one of these trusts will prevent your estate from going into probate at your death. Probate is the Court process of validating your Last Will and Testament. The process can take time and delay the distribution of your estate. Beyond probate avoidance, depending on the type of trust you create, it may also provide the additional benefit of protecting the property from being counted as an asset for Medicaid eligibility. 

While the concept of transferring your house can feel complicated and the word “irrevocable” seems daunting, there is much that can be gained from this type of planning without the loss of valuable benefits.

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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 Britt Burner, Esq.

Britt Burner Esq.

If you are a parent of a young child, you have probably heard that you should have a will. But do you know why? There are two main reasons a parent of a minor child needs a Last Will and Testament and, in some cases, a revocable living trust. The first is to create a testamentary trust to hold assets distributable to the child who cannot legally inherit assets as a minor. The second is to name a guardian in the event both parents pass away before the child reaches the age of eighteen. 

So, what happens if you die without a will or trust? This is referred to as dying “intestate.” If you die intestate, to the extent that you have assets in your sole name, they will be distributed according to the state’s intestate succession statute. 

In New York, the spouse inherits the first $50,000 of your assets and the balance is distributed 50% to the spouse and 50% to the child(ren). This is usually not practical for a married couple, since most people want the surviving spouse to inherit everything, with children inheriting only upon the death of both parents. 

If you are not married and 100% of the assets go to your child(ren) or if you are married and it is only 50%, the default scenario is incredibly inefficient. If assets are to be paid out to a minor rather than to a testamentary trust created by your will or trust, a guardian of the property will be appointed by the court to handle the finances. Even if a family member or friend is eventually appointed, the court still appoints a guardian-ad-litem to represent the interests of the child. This is expensive, intrusive and ongoing. An annual budget is required and any deviations must be approved by the court. 

Furthermore, the assets remain in an account that is held jointly with the court and can only be accessed by court order. Additionally, the child will be able to take possession of all remaining assets at either 18 or 21 years of age – a time when the child may be too emotionally immature or inexperienced with finances to handle this sum of money. 

It makes sense to engage in estate planning that creates a trust for the benefit of your child(ren) upon your death. Any life insurance, bank accounts or retirement assets can list the trust as beneficiary. Organizing the disposition of your assets is crucial to making sure that those that are dependent upon you will be cared for at the time of your death.

Beyond the finances, there is the consideration of physical custody or guardianship of the minor child. If both parents pass away without a will that nominates a guardian, someone must petition the court to be appointed. This someone could be anyone, not necessarily the individual(s) you would choose to raise your child in your absence. This could lead to different family members or friends asserting control, with a judge ultimately deciding who will take on this responsibility. 

The simple solution to make this awful situation smoother for those you leave behind is to prepare a will. That way you can choose who will raise your child, who will handle your child’s inheritance and under what circumstances your child will inherit.

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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 Britt Burner, Esq.

Britt Burner Esq.

Turning 18 is a right of passage. According to New York State law, you are now and adult! With the reward and freedom of adulthood also comes responsibility. 

You may be on a continued education path to college or starting a new job. Some new adults are still receiving monetary and housing support from their families while others find themselves navigating on their own. Either way, on the “adulting to-do list” you should also add the basics of estate planning. Whether you are 18 or 81, there are four key documents you should consider: health care proxy, HIPAA release form, living will, and power of attorney.

Once adulthood is reached, a parent no longer has the authority to make medical decisions on behalf of their child. Since you are no longer under your parents’ care, they do not have an automatic right to access your medical records; no one has that right. It is important to designate who may receive this information if you should become incapacitated and, further, who you want to make medical decisions for you if you cannot do so for yourself. 

A health care proxy allows you to appoint an agent to make medical decisions for you in the event you cannot do so. You must choose a primary agent but can nominate alternates in case your primary is unable or unwilling to act. If you are in the hospital and have not signed a health care proxy, the law has a default regarding who can make medical decisions. Is this who you would choose? 

Beyond the proxy, a HIPAA release form should also be considered. HIPAA is the Health Insurance Portability and Accountability Act. It is the law that protects your personal medical information. A HIPAA release authorizes others to obtain your medical information. Executing these documents will ensure that your parent (or whomever you designate to make such medical decisions) will not face resistance when it comes to inquiring about the status of your health or providing care instructions to your doctor.  

In contrast, the power of attorney is a document that has to do with your financial and other non-medical information. This document will name 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 on your behalf. A power of attorney can be beneficial if you need someone to pay a bill, apply for financial aid, or hire a professional, such as an accountant or lawyer. 

You may also want to consider a living will. A living will is a guide to your agents regarding 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. The decisions you make today are not set in stone; these documents can be changed at any time. Anyone entering the first phase of adulthood should become familiar with these documents. 

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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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Disabled / handicap parking. METRO photo

By Britt Burner, Esq.

Britt Burner Esq.

For disabled individuals, it can be difficult to navigate public benefits, especially when you have assets or income that exceed the allowable limits. Two commonly used vehicles to manage assets are Achieving a Better Life Experience (“ABLE”) accounts and Supplemental Needs Trusts (SNTs).

In September 2017, New York State passed a law authorizing ABLE accounts for disabled individuals in accordance with the federal law. ABLE accounts allow for money to be saved by someone receiving public benefits, such as SSI, without affecting eligibility.

To qualify for an ABLE account, the beneficiary must be diagnosed with a significant disability before age 26. Contributions can be made to the account by the beneficiary, friends, family members, or 529 college savings account rollover, but the total annual contribution cannot exceed a certain limit, which is pegged to the gift tax exemption. This amount is $18,000 in 2024 and is subject to change year by year. Employed beneficiaries may deposit an additional amount up to the Federal Poverty Line for a one-person household, but only if they are not contributing to a retirement savings account in that year. The 2024 Federal Poverty line amount is $14,580 in the continental US. 

However, ABLE account balances are limited. Under the SSI program, the first $100,000 in the account is disregarded as a resource. Any amount above that is counted as a resource. The SSI resource limit is $2,000. If you exceed this, SSI payments will stop until the resources are below the allowable limit. 

A disabled person may spend their ABLE account funds on “qualified disability expenses,” which are expenses and basic costs of living that are intended to maintain and improve their quality of life. These qualified expenses include but are not limited to education; health and wellness; groceries; housing; transportation; legal fees; assistive technology; personal support services; funeral/burial expenses, etc. 

Depending on the amount of money the recipient of benefits has and the anticipation of future funds, either from earnings or inheritance, it may be prudent to consider creating an SNT (supplemental needs trust) in addition to the ABLE account. 

Like the ABLE account, SNTs allow people with disabilities to save money without affecting their eligibility for public benefits such as SSI. There are two main types of SNTs. A first-party trust is self-funded by the beneficiary of the trust. To create a first-party SNT, the beneficiary must be younger than 65 years old. New funds may not be deposited into this SNT after the beneficiary turns 65. A third-party trust is funded by someone else, such as a parent or grandparent. There are no limits to the amount that can be contributed into either of these trusts per year, and there is no limit to the total asset balances in the trust. 

A trustee will be designated to control the assets in the trust and oversee the management and disbursement of its funds. SNTs allow the beneficiary to use the funds for expenses not paid for by public benefits. Such expenses can include clothes, entertainment, educational and recreational expenses, and transportation. SNTs may not be used for everyday expenses such as groceries. 

While SNTs do not have contribution or balance limits as ABLE accounts do, they have more complicated rules for what the funds can be used for. A qualifying individual does not need to choose between the two accounts. An SNT can be established for purchases and expenses not covered by public benefits, and an ABLE account can be set up for basic cost of living expenses and everyday expenses. 

Navigating the placement of funds while qualifying for government benefits can be complicated. However, with proper planning, the use of the funds can be maximized to the individual while also receiving the benefit of public assistance.

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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 Robert Cannon, Esq.

Robert Cannon, Esq.

Consider this scenario: a 75-year-old woman, Jane, began to exhibit signs of cognitive decline last year. She is widowed and has one child. Moreover, her financial advisor contacted a relative to advise that Jane was making unusual withdrawals and that there is a concern that she may be the subject of financial exploitation. The relative no longer believes she can take care of her financial affairs and is concerned that she is not looking after her personal needs. 

As a first step, the family tried to talk to her last year about meeting with an estate planning attorney, but she refused to do so. There are no known advance directives in place and her condition has deteriorated significantly. In addition, Jane has a 40-year-old son with Down syndrome who is entirely reliant upon her. What can be done?

First step is to determine if Jane has the capacity to sign advance directives including a health care proxy and power of attorney. If this is not possible because she has deteriorated to the extent of being unable to handle her affairs or appoint someone to do so, the family may need to explore the commencement of a Mental Hygiene Law Article 81 proceeding seeking the appointment of a guardian of the person and property of Jane.

The commencement of the proceeding involves filing a verified petition with the Supreme Court of the county in which she resides outlining the reasons why it is believed that she does not understand or appreciate the extent of her limitations and that she is likely to suffer harm if a guardian is not appointed for her. The appointment of a guardian in MHL Article 81 proceedings is based on functional limitations and not on medical diagnoses.

In light of the financial advisors concerns regarding potential financial exploitation, at the outset of the proceeding, it may be prudent to request that the Court appoint a Temporary Guardian to immediately take steps to secure Jane’s finances and prevent any further abuse.

The Court will set a hearing date and all interested persons will have to be notified, including Jane’s son and her living siblings. The Court will appoint a Court Evaluator to conduct an investigation, which will include meeting Jane in person, speaking with other friends and family members, and investigating her finances. In limited circumstances it may be appropriate for the Court Evaluator to request the permission of the Court to review medical records. The Court may appoint an attorney to represent Jane. The Petitioner would be required to testify at the hearing along with any other witnesses that will help demonstrate to the Court Jane’s need for a guardian. The Court Evaluator will also testify as to their findings and recommendations.

If appointed, the permanent guardian will step into your Jane’s shoes. The petitioner can request to serve as guardian or it can be a third party. The Court can tailor the powers granted to the guardian to meet Jane’s individual needs and can appoint a guardian of the person, a guardian of the property, or both. There are various safeguards in place to ensure that once a guardian is appointed, Jane will be protected, including the requirement that the guardian obtain a bond and file annual reports with the Court.

Once Jane is squared away, the family members will need to turn their attention to Jane’s son. The first inquiry should be if Jane or anyone else was ever appointed as her son’s guardian. If not, we must consider the possibility of commencing a SCPA 17-A guardianship proceeding in the Surrogate’s Court of the County in which he resides. Unlike MHL Article 81, the appointment of a guardian in a SCPA 17-A proceeding is driven by medical diagnoses. 

As part of the application, a licensed physician and licensed psychologist with a PhD are required to submit Affirmations certifying that Jane’s son is intellectually or developmentally disabled. A guardian appointed in this manner is granted broad decision- making authority over financial and medical matters.

As you can see, seeking guardianship for an adult in New York can be quite nuanced. Whether it be through the Mental Hygiene Law Article 81 or SCPA Article 17-A, it is possible to provide for the needs of these vulnerable adults.

Robert Cannon, Esq. is a senior associate attorney at Burner Prudenti Law, P.C focusing his practice areas on Elder Law and Guardianships. Burner Prudenti Law, P.C. serves clients from Manhattan 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.

The United States Supreme Court recently issued a landmark decision in the case of Connelly vs. IRS. This ruling has significant implications for buy-sell agreements and corporate redemptions. The Court’s decision addresses key issues related to the tax treatment and enforceability of these agreements, which are critical for estate planning, business succession, and corporate governance. 

For estate tax planning, the importance of this case is that it affirms that the death benefit of life insurance is an asset that raises the value of the business. In particular, it indicates that the value of the business will include the insurance proceeds that the company holds on the life of the shareholder, even though those payments have to be made to the estate of the shareholder in order to re-purchase the deceased shareholders interest in the corporation.  The liability to purchase shares from the estate cannot be applied to reduce the fair market value of the business for estate tax purposes.

Traditionally, in a redemption buy-sell agreement, the company will own a life insurance policy on the life of shareholders to be used to buy out the decedent’s shares held by the estate.  This ensures that the remaining business owner(s) can stay in control and run the business without being partners with the estate of the deceased owner. In Connelly, two brothers were shareholders of a business. They had a buy-sell agreement backed by life insurance owned by the company. One brother died and the business was valued without the death benefit of the life insurance. The taxpayer’s estate argued that business valuation which included the value of the insurance proceeds should be reduced by the obligation to purchase the shares of the decedent.  

The IRS disagreed and the Supreme Court affirmed that, regardless of the fact that they had the obligation to buy the shares back from the decedent’s estate, the value of the business, for tax purposes was the full valuation plus the insurance proceeds that were realized at the decedent’s death. That inclusion could significantly increase the value of the estate and, in many instances, will increase the amount of estate tax due. 

Among other things, the Supreme Court also affirmed in this decision that the valuation method stipulated in buy-sell agreements will generally be respected for tax purposes, provided it meets certain criteria. This includes the necessity for the valuation to be conducted in good faith, and it must reflect fair market value. 

The decision underscored the importance of having clear, well-drafted buy-sell agreements. The Court emphasized that these agreements must be binding and enforceable under state law to ensure their effectiveness for tax purposes. It highlighted the necessity for proper documentation and adherence to tax regulations to avoid adverse tax consequences. 

The Supreme Court’s decision in Connelly vs. IRS provides clarity on the tax treatment and enforceability of buy-sell agreements and corporate redemptions. By proactively addressing these changes, we can ensure compliance and optimize the tax outcomes for business owners. 

Business owners must maintain meticulous documentation supporting the valuation and terms of buy-sell agreements and corporate redemptions to substantiate tax positions. In light of this decision, it is crucial to engage with an attorney to review, and potentially revise, existing buy-sell agreements and corporate redemption plans to ensure compliance with the clarified standards. 

Nancy Burner, Esq. is the Founding Partner of 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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