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Category Archives: Probate & Administration
Challenging The Account of a Fiduciary
Trustees are entitled to compensation for serving in their fiduciary capacity. The trust may provide a fee schedule or may provide for a waiver of fiduciary fees. If the will is silent or provides for statutory commission, then reference should … Continue reading
Posted in Executor & Trustee Commissions, Executor and Trustee Commissions, Fiduciaries, Litigation
Tagged annual account to beneficiaries, delays in estate distribution NYS, Estate Litigation, executor commissions NYS, executor surcharges, matter of janes, nys, nys estate accountings, nys surrogates court, NYS trustee accountings, NYS trustee commissions, prudent investor standard, scpa 2309, trust litigation, trustee surcharges nys
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Analysis of 2012 Fiduciary Decisions in Surrogates Court
I. Constructive Trusts & Powers of Attorney. A “constructive trust” arises when equity intervenes to protect the rightful owner from the holder of legal title, where legal title was acquired through fraud, duress, undue influence, mistake, breach of fiduciary … Continue reading
Posted in Estate Litigation, Fiduciaries, Probate & Administration
Tagged constructive trusts, delay in trust distribution, EPTL 11-2.3[b]-2.3, Estate Litigation, fiduciary litigation, ny prudent investor act, probate, prudent investor act, prudent investor standard, trust distributions
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Use of Disclaimers in Pre and Post-Mortem Estate Planning
View in PDF: Tax News & Comment — February 2013 Introduction Disclaimers can be extremely useful in estate planning. A person who disclaims property is treated as never having received the property for gift, estate or income tax purposes. This … Continue reading
Posted in Disclaimers, Estate Planning, Post Mortem Estate Planning, Probate & Administration
Tagged acceptance of benefits, disclaimant, disclaimer of fiduciary powers, disclaimer of jointly owned property, disclaimers, estate attorneys, IRC 2518(c), IRC Section 2518, marital disclaimers, PLR 2002340117, QTIP disclaimer, qualified disclaimers, tax attorneys, tax lawyer, timeliness of disclaimer
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Executor and Trustee Commissions Under the New York EPTL
For PDF press here: Executor and Trustee Commissions Under the NY EPTL.wpd A. Executor Commissions 1. Statutory Commission Rates In New York, Executor commissions are set out by statute. Surrogate’s Court and Procedure Act (SCPA) § 2307 provides that a … Continue reading
Post Mortem Estate & Income Tax Planning
View outline: Post Mortem Estate & Income Tax Planning Post Mortem Estate and Income Tax Planning Outline Post Mortem Estate & Income Tax Planning © 2011 David L. Silverman, J.D., LL.M. (Taxation) Law Offices of David L. Silverman 2001 Marcus … Continue reading
Posted in Estate Planning, Post Mortem Estate & Income Tax Planning, Post Mortem Estate & Income Tax Planning, Post Mortem Estate Planning, Probate & Administration, Treatises
Tagged applicable exclusion amount, estate lawyer, estate planning, estate tax, form 709, gift tax, gross estate, GST, ILIT, life insurance trusts, new york estate tax, probate, QTIP, QTIP election, surviving spouse, tax attorney, tax lawyer, tax planning, valuation discount
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Use of Disclaimers in Pre and Post-Mortem Estate Planning
Disclaimers can be extremely useful in estate planning. A person who disclaims property is treated as never having received the property for gift, estate or income tax purposes. This is significant, since the actual receipt of the same property followed by a gratuitous transfer would result in a taxable gift. Although Wills frequently contain express language advising a beneficiary of a right to disclaim, such language is gratuitous, since a beneficiary may always disclaim.
For a disclaimer to achieve the intended federal tax result, it must constitute a qualified disclaimer under IRC §2518. If the disclaimer is not a qualified disclaimer, the disclaimant is treated as having received the property and then having made a taxable gift. Treas. Regs. §25.2518-1(b). Under the EPTL, as well as under most states’ laws, the person disclaiming is treated as if he had predeceased the donor, or died before the date on which the transfer creating the interest was made. Neither New York nor Florida is among the ten states which have adopted the Uniform Disclaimer of Property Interests Act (UDPIA). Continue reading
Posted in Disclaimers, Estate Planning, Post Mortem Estate Planning, Post Mortem Estate Planning
Tagged accepence of benefits, charitable disclaimers, credit shelter trust, disclaim within 9 months, disclaimant, disclaimer of fiduciary powers, disclaimers, disclaimers by infants, disclaiming applicable exclusion amount, disclaiming jointly owned property, EPTL 2-11(b)(2), exercise of general power of appointment, general power of appointment, interest passing without direction, IRC 2518, marital disclaimers, minors and incompetents, QTIP election, qualified disclaimers, separate and severable interests, surviving spouse
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Defeating The Right of Election in EPTL § 5-1.1-A
Under Estates, Powers & Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has a right to elect against the Will of a predeceasing spouse. The elective share is one-third of the net estate. The net estate consists of the net probate assets as well as testamentary substitutes. [EPTL § 4-1.1 provides that if the decedent dies intestate and is survived by a spouse and issue, the spouse takes $50,000 plus one-half of the residue; if there are no surviving issue, the spouse takes the entire estate.] Continue reading
Will May be Preferable to “Living Trust”
As a testamentary instrument, the living trust may be attractive for some elderly testators. For younger persons however, a Will is generally preferable. Despite statements to the contrary, a living trust is possessed of no inherent tax benefits. Furthermore, few, … Continue reading
Posted in Inter Vivos Trusts, Probate & Administration, Trusts, Wills
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Surrogate Finds Tax Apportionment Clause “Beneficial Disposition” Under EPTL 3-3.2(a)(1)
Manhattan Surrogate Glen, in a case of first impression, held that the named beneficiary of a life insurance policy passing outside the probate estate, who was also one of two witnesses to the will, was liable for his proportionate share … Continue reading
Tax News & Comment — May 2013