Category Archives: Probate & Administration

Probate: Analysis & Procedure

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Tax News & Comment — May 2013

Posted in Asset Protection, Asset Protection Trusts, Criminal Penalties, Delaware Asset Protection Trusts, Divorce, Estate Litigation, Exclusion of Gain From Sale of Residence, Executor and Trustee Commissions, Federal Tax Litigation, Fiduciaries, Litigation, New York Criminal Tax, New York State Income Tax, NYS Dept. of Tax'n & Finance, NYS Penalties, NYS Tax Litigation, NYS Tax Litigation, Prenuptial Agreements, Property Transactions, Tax News & Comment, Treatises | Tagged , , , , , , , , , , , , , , , | Leave a comment

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

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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

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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

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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 , , , , , , , , , , , , , , , , , , | 1 Comment

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

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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

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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

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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

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