Will and Trusts
A Will is a written declaration providing for the transfer of property at death. Although having legal significance during life, the will is without legal force until it “speaks” at death. From the most simple of Wills, to complex Wills incorporating testamentary trusts, our experience in taxation and estate planning helps us achieve the maximum flexibility for our clients, while achieving our clients’ testamentary objectives. For younger clients, a Will serves other purposes, including the nomination of a guardian. For those who would like further knowledge regarding the drafting of Wills, please review our article “The Decedent’s Last Will: A Final Profound Statement”
Probate and Estate Administration
The Law Office has more than twenty years of experience in handling estate administration matters. We work closely with Executors who have called upon us to act as their counsel in estate administration matters. The office routinely handles probate and administration matters in all New York jurisdictions. We also assist in transferring or selling estate assets, including real estate. Our tax experience assists our clients in making maximum use of the available federal and New York State exemption where testamentary trusts or tax elections are involved. For those interested in learning more about estate administration, please see our publications “Post Mortem Estate & Income Tax Planning” and “Use of Disclaimers in Pre and Post-Mortem Estate Planning”.
Powers of Attorney; Health Care Proxies
Clients often greatly underestimate the importance of a power of attorney. For both younger and older clients, we believe that a properly drafted and executed power of attorney is an essential estate planning document. Without a power of attorney, if one becomes incapacitated, resort may be required to be made to the Surrogates’ Court, and the appointment of Guardian may be required. New York revised its power of attorney statute in 2011. A description of the new statute can be found in our article “Revision of New York Power of Attorney Law Takes Effect”.
Trust Amendments & Decanting
Under the Uniform Trust Code and EPTL §10-6.6, a noncharitable irrevocable trust may be modified with court approval “upon the consent of all beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.” The settlor, a beneficiary, or a trustee may initiate an action to modify an irrevocable trust. New York was one of the first states to permit trust decanting, and its statute has been revised to permit decanting in many situations where previously this was not possible. We have worked with our clients in decanting trusts into new trusts which more accurately reflect changing circumstances and the settlors’ intent. Please see our article “New York’s Revised Decanting Statute Under EPTL §10-6-6” for further analysis of trust decanting.
Gift & Estate Tax Audits
Our litigating experience with the IRS in the United States Tax Court and in U.S. District Court, coupled with our litigating experience with the New York State Department of Taxation in the New York State Administrative Tax Tribunals as well as in the Supreme, Appellate and Court of Appeals branches of the New York Court system enables us to represent our clients’ interests in the event of a gift or estate tax audit. To learn more about the nature of tax disputes and their resolution, please see our articles which appear in the April, 2011 issue of Tax News & Comment, “Litigating in the NYS Division of Tax Appeals” and our article entitled “Tax Refund Litigation” for disputes in the United States Tax Court.
Estate and Gift Tax Returns
We prepare and file estate tax returns for our clients, and work closely with experienced accountants who assist us in preparing fiduciary returns. Together with our trusted network of accountants, valuation experts and real estate appraisers, we endeavor to assist our clients in achieving closure at a difficult time, while ensuring that our clients’ legal and tax objectives are achieved. For further information regarding the preparation and filing of Federal and New York estate tax returns, please see our articles in Tax News & Comment, “Post Mortem Estate & Income Tax Planning,” ;alkjd; “Tax and Legal Issues Arising in Connection With the Preparation of the Federal Gift Tax Return, Form 709 — Treatise,” and “Requirement of Filing Federal Gift Tax Return,”