An Estate Plan ensures that your needs, your families’ needs, and financial goals are met during your lifetime and upon your death. A thorough and comprehensive plan would include a Last Will & Testament, Health Care Proxy, Living Will, and Power of Attorney and for some a Trust may also make sense. Everybody needs an Estate Plan because it states how your assets are to be distributed upon your death through a Will and/or Trust and whom you would want to handle your financial and health matters during your lifetime with a Health Care Proxy, Living Will and Power of Attorney. It is critical to have Estate Planning documents done by an attorney, even if you think you may not have a “taxable” estate. Leaving the administration of your affairs to chance without a will, or with documents not specifically tailored to your personal needs and circumstances, can lead to drastic and often costly consequences.

First, evaluate and inventory your assets. Assets include but are not limited to your residence, real estate or business interests, stocks, bonds, annuities, retirement savings, and insurance policies. This list is not exclusive. It can include art work, jewelry, collections, antique furniture — whatever is of some monetary value. You then need to ask yourself the following questions:

• Who would you want to make medical decisions on your behalf if you were unable to do so?
• Who would you want to handle your financial affairs if you were to become incapacitated?
• Who would you want to wrap up and distribute your estate upon your death?
• Upon your death, how would you want your estate divided?

Once you have reviewed your assets and have considered these questions, you should meet with an Estate Planning Attorney to discuss a plan conformed to your needs. (Note: you do not need to definitively answer these questions; an Estate Planning attorney can help you work through these questions and help you make a decision). Your attorney may also want to include your financial planner and/or accountant in the planning.

The unequivocal answer is Yes. Many people erroneously believe that they do not need an Estate Plan or Estate Planning documents if all of their assets are in joint accounts with their spouse or their children. Although joint accounts are intended to pass directly to the joint account holder after the other account holder’s death, it remains critical to have a Last Will and Testament in place to administer assets that may be outside of those joint accounts at death (i.e., outstanding checks that have not been cashed). If the decedent had applied for and received Medicaid benefits, it is particularly important to have these documents.

Keep in mind that a “joint account” can be challenged. The law allows a presumption of joint ownership but that presumption can be overcome. Sometimes a parent will title an account jointly with their child because the parent wants the child to handle his or her banking, pay bills and to have uninterrupted access to the account if the parent becomes incapacitated, all for the parent’s benefit. This is a “convenience account” that is deemed property of the probate estate and subject to collection by the Executor. Alternatively, the parent names the child as a joint owner to have the account pass to the child on the parent’s death without probate. In that instance, the child is a co-owner of the account and not merely a signatory for the convenience of the parent. However, in order to avoid any dispute as to account ownership, it is particularly important to sign a written statement indicating that all assets held in a joint account shall be considered the joint owner’s property on the parent’s death and NOT a convenience account. Additional precautions may help provide evidence as to what type of account was intended.

A form is not able to give you specific legal advice tailored to your particular situation and needs. The laws impacting estate planning are constantly changing. Retaining counsel to help you navigate the process is critical and will help your descendants avoid unnecessary litigation and probate or administration costs. As baby boomers and their parents age, they are living longer and often, living with chronic medical conditions. The cost of long term care continues to spiral out of control and families struggle to meet the needs of their aging members.

If you already have an Estate Plan in place you should review it throughout your lifetime as each stage of life brings different reasons for an estate plan; different issues that need to be addressed, and often changes in the law which may need to implemented into your plan. Your Estate Plan should be reviewed with the birth of a child, upon a divorce, with the death of a spouse or child, each decade, upon a decline in health, retirement, and if there is a significant change in financial circumstances.

By implementing an Estate Plan now you can avoid bickering and confusion later. An Estate plan spells out to your family members and/or beneficiaries how you would want things handled were a crisis to arise or upon your death. Being clear about your intentions can not only prevent drawn out costly legal battles but can keep harmony amongst your loved ones.

Everyone. Whether you realize it or not, even if you never executed a Last Will and Testament, you already have a Will. The State has written one for you. This is called intestacy. Because of the intestacy laws, everyone essentially has an “estate plan” already; the only question is whether you write it or the government does. The default intestacy plan may not reflect your ideal distribution. New York’s intestacy laws allow a spouse to inherit $50,000 plus half of the balance, with the remainder to the children. Without a spouse or children, the law leaves your estate to your parents, then your siblings, in that order. Although clients delay estate planning because it forces them to make difficult decisions, a Will affords you control over who inherits and in what proportion, and to name an executor who is in charge of the administration of your estate. Advanced directives are further critical to ease financial and end-of-life decision-making. It is far better for you to decide these issues in advance than to leave it to chance.

Basic planning documents – a will and advanced directives (power of attorney, health care proxy, living will), and, for some, a trust– are particularly imperative for those who are themselves or have family members who are minors, disabled, or are in unmarried or same-sex relationships. If you have minor children, you must specify who will take care of them in the event of your death. While the Court has final say who will be their guardian, your nomination is given great weight.

Without a Will designating a trust for minors or disabled beneficiaries, the Court must appoint a guardian to collect their interest in your estate. This adds another layer of court oversight and can be expensive. The Court also requires full distribution to minors at age 18, while a well- drafted minor’s provision lets you direct an age when the child is mature enough to handle the money.

By implementing an Estate Plan now, you can avoid dissension, stress and confusion later. An Estate Plan declares to your family members and/or beneficiaries how you would want things handled were a crisis to arise or upon your death. Dictating your intentions prevents lengthy, costly legal battles and preserves family harmony.

A living trust is one that you create during your lifetime (as opposed to a testamentary trust which is created in your last will and testament) and provides for management of your assets during your life and disposition of your assets at your death. When you create a trust, you are essentially signing an agreement between yourself as the Grantor and the Trustee, the individual that will manage your assets.

A trust can be Revocable or Irrevocable. Upon your death, the assets held in either of these Trusts would be distributed to your beneficiaries. If your Trust is properly funded, it could enable your loved ones to avoid the probate process altogether.

Should you later become incapacitated after establishing either type of trust, they both can provide for a seamless transition in the management of your financial affairs. Thus, either Trust would help avoid the need for the court appointment of a Guardian to manage your property.

A Revocable Trust is designed to give the grantor flexibility and, sometimes, to avoid probate. Although it may initially cost more to create a Revocable Trust than it does to execute a Will, a Revocable Trust may ultimately save attorney’s fees and time delays for your beneficiaries since there is no court supervision over the distribution of the assets.

In addition, since you may act as your own Trustee, you can maintain your autonomy and independence. If you are acting as your own Trustee, you will maintain control over those assets you chose to transfer to the Revocable Trust. You can transfer assets into and out of the Trust, amend or revoke the Trust at any time, and make all decisions with reference to the Trust as absolute owner.

If you should become incapacitated, a Revocable Trust can provide for a seamless transition in the management of your affairs. The person(s) you have selected as successor or co-Trustee, will simply take over the management of your assets and affairs. This will avoid the need for the appointment of a Guardian and a potentially costly and acrimonious guardianship proceeding.

A Revocable Trust will not change your lifestyle or the way you handle your day-to-day affairs. It is important to note, however, that despite some notions to the contrary, there is no income tax or estate tax savings when using a revocable trust.

If you have a simple estate, do not own out of state property and you are not disinheriting your spouse or your children, then the probate process can be very simple. However, if your wish is to disinherit a child, children, or spouse, you may be opening your estate up to a probate battle. The problem is further exacerbated if you have no spouse or children, and missing heirs as they would need to be located and the cost can be enormous. Additionally, if you have out of state real estate your executor will most likely have to bring an ancillary proceeding in the state where the property is located. In any of these mentioned situations, a living trust might be a good alternative.

By contrast, in an Irrevocable Trust, you would name a third-party (not a spouse) as trustee, and the principal is no longer accessible to you or under your control. However, you as Grantor are entitled to any income the Trust generates. Assets commonly transferred into these Trusts include residences and investments such as bank accounts, certificates of deposit, stocks and bonds. You as the Trust creator (Grantor) continue to earn all income (interests, dividends, etc.) generated by either Trust. You also retain any property tax exemptions you were entitled to prior to the transfer.

A key difference between these two types of Trusts is that the Irrevocable Trust allows for asset protection should you require long term skilled nursing care, a Revocable Trust does not. Once a five-year period has elapsed from the date of the transfer of an asset to the Irrevocable Trust, the transfer of that asset will no longer impact your Medicaid eligibility.

Today, not even the comfortably well off can afford the $12,000 to $14,000 a month cost for nursing home care on Long Island and upwards of $20,000 for nursing home care in New York City. Most individuals do not want the money they have worked their whole lives for to be used to pay for their nursing home care were they to become ill. There are several ways to protect your assets in the event you are struck with a catastrophic illness requiring long term care, and an Irrevocable Trust is just one of these vehicles.

While many individuals are uncomfortable with losing “control” over their assets, they may still want to consider establishing an Irrevocable Trust in which to place their residence, as it will not change their lifestyle. Despite the recent decline in real estate value, more often than not the residence is a major portion of an estate. The benefit of the Irrevocable Trust is that you retain the right to live in the home for their lifetime yet the house could be sold if necessary and the Trust can purchase replacement property without the asset being considered available to the Grantor for Medicaid eligibility purposes. You would also retain your STAR and any Veteran’s exemption. Title to the property does not pass to one’s heirs until the Grantor’s death and the termination of the trust.

The Irrevocable Trust is structured so that any income generated by the Trust will be taxed at your tax bracket and the trust income will be reported on your individual Form 1040. The Trustee may be required to file “informational” fiduciary income tax returns for the Trust.

There are no gift taxes due on transfers to the Irrevocable Trust because the transfer is deemed to be an incomplete gift. In contrast, if you were to transfer assets to your beneficiaries outright, any income from those assets would be taxable to the recipients at their tax brackets. In addition, placing assets in an Irrevocable Trust rather than transferring to beneficiaries outright protects those assets from that beneficiary’s creditors and/or personal problems.

Both the Revocable and Irrevocable Trusts direct distribution of your assets at your death. At death, the trust assets will not be subject to a probate proceeding, saving probate, legal, and executor fees. The Trust assets will, however, be includable in your estate for estate tax purposes. This will enable your beneficiaries to obtain a step-up in basis (fair market value at the time of death) as to any appreciated assets as opposed to receiving your original cost basis had you gifted the appreciated property to them. For example, if the residence were held in the Irrevocable Trust, your heirs would receive a step-up in basis for income tax purposes which would minimize the taxes due on the subsequent sale of the premises. Your Irrevocable Trust may also provide protection against your own creditors after your death.

While not appropriate for everyone, an irrevocable trust is one vehicle available to protect your assets and/or residence while providing an income for the Grantor and, at the same time, allowing the Grantor to qualify for Medicaid benefits. There are many things to consider before creating a trust and there are several different provisions that can be used to protect your interests in the trust property. The question is whether the strategy is good for you. As always, you should consult with an attorney or financial planner to further explore whether a Trust is appropriate for your particular situation.

All of them.  On June 24, 2011, New York became the sixth and most populous state legalizing same-sex marriage, joining Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, as well as the District of Columbia. Prior to that time, other states had offered a civil union or domestic partnership, or had a patchwork of case-law or other statutory laws granting some but not all benefits to same-sex couples. While civil unions and domestic partnerships offered some benefits in those states, it did not rise to the level of “marriage”. At that point in time, there was a wild inconsistency among the states, throwing the state of the situation into chaos, particularly because of the Defense of Marriage Act (“DOMA”), enacted during the Clinton administration, which effectively amended the “full faith and credit” clause of the U.S. Constitution, requiring that each state recognize the validity of another’s state’s laws. 

That all changed in the landmark civil rights case of U.S. v. Windsor, a case that was heard and decided by the United States Supreme Court in 2013.   The Windsor Court held that restricting the U.S. Federal interpretation of “marriage” and “spouse” to apply only to opposite-sex unions under Section 3 of DOMA was unconstitutional under the Due Process Clause of the Fifth Amendment.   

The end result is that under current law, same-sex couples can marry in any state in the U.S., and their marriage must be recognized in any state and for the purpose of federal or state benefits. 

It’s hard during such a trying and difficult time to think about advocating for your rights and interest against someone that might oppose you.  Fortunately, your partner left a Will.  If that will left all of his assets to you, then the point should be moot:  whether the title to the assets pass to you by reason of “rights of survivorship” in the joint account or through the “probate” process under the Will, you will ultimately receive the assets.

A different problem might arise if your partner had not left a Will; if the Will does not leave all the assets to you; or if he left a Will but for some reason it is not admitted to probate.  In any of those situations, your partner’s nearest blood relatives – known as “distributees” or more commonly referred to as “natural heirs” – might challenge your entitlement to receive the remaining assets in the joint account.  Unfortunately, your domestic partnership will not give you standing as a “distributee”, which you would be considered had you been married and would then be considered as the surviving spouse.    

Your first step should be to seek out counsel that is experienced in handling trusts and estates issues. The right attorney will be your trusted ally and advisor to help you navigate the legal waters and support you.

Unfortunately, when you die without a will, the State writes one for you. This is called intestacy. The intestate scheme in New York provides for a “spouse” to inherit from a deceased spouse in intestacy; however, a domestic partner is not included in the definition of a “spouse” under the intestate statute, whether or not you are a same-sex or hetero-sexual couple.

Although before the enactment of New York’s Marriage Equality Act in 2011 and the Windsor case in 2013 there was some favorable and progressive case law that might have permitted same-sex domestic partners some protection, that is not likely to continue in light of the fact that since those dates, same-sex couples could have gotten married, but chose not to. In Estate of Ranfle, Surrogate Judge Glenn took a very progressive view and held that a same-sex partner was entitled to receive notice of his partner-decedent’s estate proceeding, effectively holding that he was a distribute under New York law, which is not specifically incorporated into the statute. However, there were no guarantees that this would be the result, and contrary case law from another New York State Surrogate Court held differently. Now, as a result of the Marriage Equality Act, same-sex spouses are deemed “spouses” under the intestate statute and all other areas of New York law where marital status is a factor.

The most important thing to do is to consult with an estate planning attorney to determine your rights for your particular situation, and whether the facts and circumstances of your situation warrant pursuing an action to enforce your rights in the estate.

Same-sex and opposite-sex couples alike (and single individuals!) should note that much of the difficulty could have been prevented if the decedent had validly executed a will. With limited exceptions, every individual may distribute his or her assets in a will to whomever they choose. You can leave your assets to individuals, to close or distant family members, or to none of your family members. When you fail to implement an estate plan, you leave yourself and your loved ones completely unprotected.

YES.  Since the U.S. Supreme Court decided the U.S. v. Windsor case in 2013, Section 3 of the Defense of Marriage Act (DOMA) was held unconstitutional under the Due Process Clause of the Fifth Amendment (which guarantees equal protection).  Prior to the landmark Windsor decision, the Federal Government did not extend federal benefits to same-sex couples.  Under current law, all married couples, same-sex or opposite-sex, are entitled to the same protections under Federal law such as the estate tax marital deduction, Social Security benefits, and the like. 

Not anymore.  The federal government treats heterosexual married couples as a single economic unit. Heterosexual married couples enjoy an “unlimited marital deduction” during life and at death. That means that heterosexual spouses can make unlimited transfers to each other without incurring gift tax, and may leave an unlimited amount to their partner at death, even if that amount exceeds the federal estate tax exemption at the time of death. Same-sex marriages do not enjoy this benefit. If you transfer more than $13,000 to your partner (for 2010; the amount changes every year), with limited exceptions to pay for medical or education costs, you will  have to file a gift tax return and pay a gift tax. You may elect to use your lifetime gift exemption of $1 million which is afforded to every individual, regardless of marital status, however, that exemption can be used up very quickly over time. 

Historically, from the Stonewall riots in 1969, to the New York v. Onofre case that legalized same-sex sexual activity between consenting adults in 1980, to becoming the sixth state to both recognize and perform same-sex marriage in 2011, New York has generally been very progressive in regard to lesbian, gay, bisexual and transgender rights.  Since 2003, New York has afforded protection from discrimination based on sexual orientation, and in October 2015 expanded those discrimination protections to gender identity and expression.

Transgender issues have only recently come to the forefront of the national attention with the great “bathroom debate” that attracts the headlines, and the law continues to evolve as these issues arise.  Some of these issues are:

• Gender reassignment:  Although there is no specific statute memorializing the practice, New York issues new birth certificates to individuals born in New York State who have undergone sex reassignment surgery.  However, since 2014 New York State and New York City do not require genital reconstruction surgery to change or obtain a new birth certificate. 
• Hate Crime Laws: The Hate Crime Law signed by Governor Pataki on July 11, 2000 imposed harsher sentences on criminals in New York who target their victims on the basis of sexual orientation, race, religion, or age, but does not specifically protect gender identity as distinguished from sexual orientation.  
• Conversion Therapy: Despite two bills that had a significant bipartisan majority in the Assembly that would have prohibited health care providers from trying to change the sexual orientation and/or gender identity of minors, both bills failed to pass the New York State Senate.  Governor Cuomo announced a series of regulations on February 6, 2016 that would ban public and private health care insurers from covering the practice of conversion therapy in the State and prohibit mental health facilities from conducting the practice on minors. 
• Education: The NYC Department of Education issued the “Transgender and Gender NonConforming Student Guidelines” on March 1, 2017  reiterating its policy to maintain a safe and supportive school free from bullying or discrimination on a variety of areas, including gender, gender identity, gender expression and sexual orientation.  Among other thing, the Guidelines mandate that “Transgender and gender nonconforming students must be provided access to [restrooms and locker rooms] consistent with their gender identity consistently asserted at school.” 

New York City affords its own specific protections in addition to those offered at the State level.  In 2002 the New York City Council passed the Transgender Rights Bill to ensure protection for people whose “gender and self-image do not fully accord with the legal sex assigned to them at birth.”  The

Outside of New York State, the individual states widely vary in their approach to these issues.  On a national level, the White House recently revoked an Executive Order that had previously provided protection to transgender individuals who sought to use a bathroom reflecting their gender identity rather than their biological gender at birth.  This paved the way for individual states to pass laws preventing them from doing so.  This is a rapidly evolving area.  For the most up to date information please visit our blog posts. 

Polyamory (literally “multiple loves”) does not have one set definition, but it can take the form of a group of three or more consenting adults who are monogamous within the group.  From a legal standpoint, Polyamory presents a hybrid of issues that arise with unmarried couples akin to what the state of the law was prior to 2013. 

Most laws that impact relationships are based on the assumption that only two people are involved in the legally binding dynamic.  For example, only two people can be legally married to the other, same-sex or not.  From a legal standpoint, “polyamory” is a different way of stating “bigamy,” which remains illegal and in some states is even criminally prohibited.  Some of the legal issues facing those in a committed polyamorist relationship are: 

• Custody: Generally only two people can have legal custody of children.  Even if two of the people in the polyamorist relationship are the biological parents of a child, there is no legal mechanism for adding a third parent through adoption or placement on a birth certificate (which only has room for two parents).  Any rights, obligations, or protections to the third, fourth, or fifth parent would need to be accomplished by contract among the parties, each of whom would need to be represented by separate counsel. 
• Adultery / Bigamy: Fun fact:  Adultery remains illegal in the State of New York.  Section 255.17 of the New York State penal law states “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.”  Adultery is a class B misdemeanor that is punishable by up to 90 days in jail or a $500 fine.  The law took effect on September 1, 1907.  According to one blog, only 13 people have been charged with adultery since 1972 and only 5 were convicted of the crime, usually in combination with some other charge.  The charge is rarely if ever prosecuted because of a lack of resources to be devoted to it.  Yet, in the hands of an administration focused on penalizing these types of relationships, the existence of this law could be of concern.
• Housing:  Many municipalities, local jurisdictions, and cities restrict the number of unrelated adults living in one household, whether driven by a desire to minimize the existence of “houses of ill repute” or overcrowded dwellings occupied by immigrants, legal or not.  As with bigamy laws, the existence of these legal housing restrictions can present limitations and exposure to polyamorous couples residing together if targeted by the landlord. 

Unmarried couples have additional issues to consider when evaluating life insurance policies: income replacement, tax liabilities, and above all, the titling of policies, which can result in tax liabilities for the beneficiary.  Remember that an unmarried partner who is not a “surviving spouse” is not entitled to the unlimited marital deduction on the estate of the first to die.  Each person is currently afforded a $5.49 million exemption from federal estate tax (as of March 20, 2017) and a $5.25 million exemption from New York State tax (from April 1, 2017 through January 1, 2019, at which point it will equal the federal estate tax exemption).  If a decedent’s gross estate exceeds those exemptions, and the excess is left to a non-spouse, the marital deduction would not apply and an estate tax would be owed at the death of the first spouse.  Unmarried couples are not afforded that option. 

Regardless, all unmarried individuals must be careful when purchasing life insurance to ensure that it meets their needs. Most people do not realize that while life insurance is a non-probate asset and therefore does not pass through your estate, it is taxable. With the federal estate tax exemption returning to $1 million at a 55% tax rate in 2011, many people do not realize that most the life insurance benefit to their beneficiary will be eroded by the estate tax liability that accompanies it. There are methods to assist with the estate tax impact on life insurance, such as Irrevocable Life Insurance Trusts (ILIT), that you should discuss with your estate attorney to consider whether it is right for your situation.

JWTROS is a specific type of joint ownership that ensures the surviving partner will be named sole owner of remaining funds upon the death of the first partner.  Due to several complex taxation rules, it’s important that joint owners using the JWTROS designation keep detailed records.  Otherwise, the IRS may attempt to tax jointly held property in both the estate of the deceased spouse and at the death of the surviving spouse.

Some of the other strategies available to same-sex couples include a Revocable Living trust, Durable Power of Attorney, or a Transfer-on-Death. Please contact us at info@besunderlaw.com for further information.

No. Again, while a surviving spouse is entitled to take an IRA into a spousal IRA rollover, a non-spouse beneficiary has limited recourse. Keep in mind that for heterosexual or same-sex married couples, all distributions remain income taxable regardless of status. Please consult an estate planning attorney on this and other issues.