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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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By Brit Burner, Esq.

Brit Burner, Esq.

Estate planning is often a family affair. While clients may come to us worried about their future, they are also worried about the future of those they will leave behind when they die. It may be a child, niece, or nephew who has had a run of bad luck, a string of bad relationships, or one that makes bad business decisions. 

Even clients who are leaving assets to children with good marriages and seemingly no debt have concerns that one of these negative situations may arise in the future for one of their beneficiaries, and then what? 

When concern about a beneficiary is top of mind, clients are often interested in hearing about the options available for leaving assets behind in a Trust for the benefit of one or multiple beneficiaries. These can be called by several names but we regularly use the term “descendants trust.” This type of trust gives creditor protection to beneficiaries, protecting their inheritance from dissipation in the event of a divorce, bad business decisions, general creditors, or any other creditors. A descendants trust can be drafted to avoid additional estate taxes at the beneficiary’s subsequent death, thereby preserving wealth for another generation. 

A descendants trust can be created for each beneficiary to protect their inheritance. These trusts are created by the client’s last will and testament or living trust, and the creating document lists the specific rules of each trust.

One of the first decisions to make is who should serve as trustee. The trustee is responsible for investing and reinvesting assets held by the trust. This can include assets invested in the market, cash, or real estate. To assist clients in making the decision of who should serve as trustee, we ask if we are trying to protect the beneficiary from themself or from others. If the beneficiary is the problem, we will recommend a family member, friend, or corporate entity serve as trustee. For concerns about creditors, divorcing spouses or other outside entities, we may recommend that the beneficiary can serve as their own trustee. 

The particular circumstances of the situation will help dictate this choice. If a close family member or the beneficiary serve as trustee, they are deemed to be “interested” rather than “independent. 

In determining allocations of principal from the trust, an interested trustee is restricted to distribution only for health, education, maintenance, and support. If there is an independent trustee, then assets can be paid for any reason at the discretion of the trustee. 

For distributions of income, a descendants trust can provide that any income generated from an asset in the trust shall be paid out to the beneficiary, although the income can also be directed to remain in the trust and distributions can be made upon the discretion of the trustee. However, the trustee must keep in mind that income that remains in the descendants trust will be taxed to the trust at its own tax rate, usually higher than that of the individual beneficiary. 

Beyond the known concerns for a beneficiary, there may be a concern for future need for Medicaid or other government benefits. The descendants trust is a good solution because it can have supplemental needs language that allows a beneficiary to maintain or apply for government benefits while maintaining trust assets to be preserved, should this become necessary. 

While some clients may feel that their assets are such that their children will not need government benefits, there are many wonderful programs for the disabled that can only be accessed by government benefit programs. This provision may or may not be applicable to future heirs and is prudent to include. The future is unknown and with the proper planning, you be sure your beneficiaries and the money you leave for them is well protected.

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 Hon. A. Gail Prudenti, Esq.

Hon. A. Gail Prudenti, Esq.

After working most of your life and finally paying off your mortgage, the last thing you want is to see the assets you’ve accumulated through years of diligence fall into the government’s hands because you required long-term care either at home or in a nursing home. There is a way — a perfectly legal and legitimate way — to shield those assets and protect your children’s inheritance. But there’s really no time to lose. One of the ways in which we protect assets is by creating a Medicaid Asset Protection Trust (MAPT).

With a MAPT, you can protect your assets from the cost of long-term care. But there is a hitch: The trust must be created sixty (60) months before nursing home care is necessary. Currently, in New York, there is no lookback for transfers made before you apply for home care or Community Medicaid. At the writing of this article, we are unsure if a lookback will ever be implemented in the homecare setting. To be safe, planning early is imperative and the key to asset protection and preservation.

Let’s back up a second. Nursing home care is extremely expensive (very roughly $15,000 a month) and few people can afford to pay this amount over the long haul. Ultimately, they will rely on the Medicaid benefits to which they are entitled. In fact, approximately 72% of all nursing home costs in New York are covered by Medicaid. That means if you are in a nursing home paying privately, you are in the minority.

Under the 2024 Medicaid resource allowance, the application can have $30,182.00. If you have assets that exceed that amount, there could be a spenddown. If you do nothing, you could lose your home and investment assets. If you establish a MAPT — and stay out of a nursing home for sixty (60) months — those assets are out of the government’s reach and will be there for your benefit and ultimately, your beneficiaries.

In addition to the resource allowance, a Medicaid recipient can have retirements accounts in an unlimited amount (provided those accounts are set up for a specific monthly distribution), an irrevocable pre-paid burial, and a car. At death, there will be recovery for the benefits paid by Medicaid during the recipient’s life. This recovery can be avoided if assets avoid probate by having a joint owner, beneficiary, or are held in a MAPT when the recipient passes.

Although situations differ, what happens most often is an aging person or couple, as part of sound estate planning, will consult with an elder law or trust/ estate lawyer to weigh the benefits and drawbacks and determine if a MAPT makes sense and which assets should go into the trust. The trust funding is a crucial part of this process as is choosing a trustee. Often, the trustee is an adult child or other relative or friend who you can trust to follow your wishes.

What happens if your house is in a trust, and you decide to move? No problem. The trustee can sell the house and then the proceeds can be used to buy another home or simply invested to pay you income from the trust. 

Similarly, if you put your stock investments in the trust, the trustee can buy and sell securities in the trust. The new home and the new stock stays in the trust. The grantor of the trust keeps all the income, and the principal is protected.

Trusts can be legally complicated, and if you do decide to investigate a MAPT, it’d be wise to consult with an attorney who specializes in that area of law and keeps a close watch on statutory changes that may affect the operation of the trust. Mistakes and oversights can have devastating unintended consequences. It may be difficult or impossible — and it will certainly be expensive — to revise a trust. Better to get it nailed down just right from the start.

Hon. Gail Prudenti, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice on 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.

There is a common misconception about estate taxes when a decedent dies. At the outset it is important to know that the New York State exemption in 2024 is $6,940,000. The federal exemption for 2024 is $13,610,000. Therefore, if your estate is under these amounts, then there is no tax due. Often clients are anxious to make annual gifts with the mistaken belief that their heirs will pay a tax at their death. First, any amounts to spouses are tax free. Any amount under the above thresholds is also tax free. Nevertheless, for estates over the exemption amounts, either the New York or federal, additional planning is necessary. The balance of this article is for estates that exceed these threshold amounts.

But before we consider those taxes, let’s be clear about what comprises your taxable estate. All assets that you own at your death are counted towards your taxable estate, including IRA’s, annuities, bank accounts, real estate, life insurance owned by you or for which you have the power to change the beneficiary.

In New York, estates valued below this threshold amount ($6.94 million) will not incur any tax. For any estate that is over the threshold by no more than 5%, the estate is only taxed on the overage. However, for any estate valued at more than 5% over the threshold amount, ($7.287 million) the entire estate is taxed and there is no exemption available.

To illustrate: For decedents dying in 2024, consider an estate valued at $6.0 million. This is under the threshold amount and no tax is due. For an estate valued at $7.1 million, which is $160,000 over the threshold amount, there will be a tax for the $160,000 overage, to wit: the taxable estate is $397,444. However, for an estate valued at $7.3 million ($13,000 over the 5%), the value of the estate is above the threshold by more than 5% and the estate tax rises sharply, to wit: the taxable estate is $678,000. This commonly known as the “cliff.”

Estate tax planning for NY residents is often focused on keeping assets under this

cliff. There are several techniques that can be used to avoid the cliff. For instance, each individual can make tax free annual gifts in the sum of $18,000 per person in 2024. Annual gifts can be utilized during lifetime to bring the value of an estate under the cliff, and maybe even under the threshold.

However, in an instance where the decedent dies and the estate is over the threshold, we often use a provision in the Will or Trust to reduce the taxable estate with gifts to charities. This is a savings provision that provides for a charity to receive any amounts disclaimed by the beneficiaries. By adding that type of clause, the beneficiaries have up to 9 months after the decedent’s death to file a qualified disclaimer, renouncing any such overage and having the disclaimed amount pass to the named charity. The beneficiaries can disclaim any amount necessary to bring the estate under the threshold and reduce the estate tax to zero.

Another technique is to make a large gift more than 3 years prior to death. Since New York State does not have a gift tax, only an estate tax, this works quite well. Take the example of an individual with $8.94 million in assets, which is $2.0 million over then threshold. If she transfers the $2.0 million to her heirs directly or to a properly drawn trust for heirs, and survives the gift by three years, then she still has a full New York State exemption. The lifetime gift is essentially transferred estate tax free. If she dies before the three years, the gift will come back into the estate for the purposes of calculating the estate tax.

This same technique would not work for federal estate tax purposes, because any lifetime gift over the annual gift amount does reduce the lifetime applicable credit. This year the applicable credit amount is $13.61 million. This amount is indexed for inflation and will increase again in 2025. However, in 2026 the credit amount will be reduced as the law that created it will “sunset”. Most experts believe the federal exemption will be approximately $6.5-$7.0 million as of January 1, 2026. For clients with estates over that amount, it is necessary to plan early and reduce their taxable estates before the federal applicable credit is reduced. This is usually done with sophisticated trust planning which moves assets “over the tax fence” and uses the credit before they lose it.

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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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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