Asset Protection

Please see the article that I recently wrote for Epoch Times on Asset Protection  

https://www.theepochtimes.
Read more . . .

Unlike federal law, New York State does not have a gift tax. However, up until December 31, 2018, New York State required decedents to include all gifts made within three years of death in their New York State taxable estates. As a result of a recent legislative change, this add-back rule no longer applies to decedents with dates of death after January 1, 2019.

The result is that a New York State resident may choose to gift away all of their assets during their life, and these assets will not be added back to their gross estate. Unfortunately, one must remember that New York State law and federal law differ.

Different forms of ownership frequently result in assets being passed by operation of law, and not according to the wishes stated in the Last Will and Testament. It is crucially important to discuss with your attorney your specific wishes and the current forms of ownership of your assets.

Property: Joint ownership of both real and personal property has been recognized for centuries. Three forms of joint ownership are recognized in New York:

1. Tenancy in Common.

In New York, banks will seal a safe deposit box following the death of an owner or co-owner. The bank will then only allow the safe deposit box to be opened after a Court issues an order to that effect. The following are the steps you must take:

1. Identify an interested party who can petition the court. An interested party can be the  decedent's spouse, beneficiary or a named fiduciary in the Will.

After an Executor gets appointed in an Estate, the Executor must fulfill his duties by timely marshalling of all assets, paying all known creditors and distributing the remaining money to beneficiaries. While this is what is supposed to happen, quite often it does not.

When should you petition the court to compel an Accounting by an Executor? You can do so when you believe that Executor has withheld information, or has engaged in some sort of wrongdoing (such as self-dealing or asset mismanagement). Stealing funds from the estate, selling estate property for an artificially low price, or not distributing any money for years are all good reasons to petition the court.

Who may petition the court to compel an accounting? SPCA 2205 lists individuals and entities who may petition.

Can one remove the executor or the administrator of the estate? The process is not easy, but it has been done multiple times. Below are several common grounds for removal:

•     Self-dealing. This means that the Executor of the Estate acts in the best interests of himself, instead of the interests of the creditors and the beneficiaries of the estate. It may include purchasing a house owned by the Estate at an artificially low price. Or it may include paying themself a high salary from the estate, without prior court approval.

Why do people want to qualify for Medicaid in the first place? Because, even though this knowledge may come as a shocking surprise, neither Medicare nor any supplemental insurance coverage policies pay for long term care. Long term care includes home care services and nursing home services. When paid for privately, the cost of long term care runs to approximately $150K-$200K in New York.

But can one qualify for Medicaid without being poor? In New York, the answer is surprisingly yes. When determining one's eligibility, for a person over 65 years of age, Medicaid evaluates both assets and income.

Essential components of every estate plan, regardless of client's net worth, include a Will, a Power of Attorney, and a Health Care Proxy. Some circumstances require the use of a Trust (for the purposes of special needs planning, asset protection, Medicaid/elder care planning, estate tax mitigation, and probate avoidance). Those with potentially taxable estates may consider strategies such as gifting, annuity trusts, charitable trusts, life insurance trusts, personal residence trusts, installment sales and promissory notes.

A financial advisor should work together with your attorney to figure out the plan that is most appropriate for your individual situation. Since most people see their financial advisors more frequently than their attorneys, it falls to the financial advisor to oversee that the plan developed with the attorney is actually implemented and remains appropriate.

Many individuals who open a joint bank account in New York are completely unaware of the legal and tax implications associated with these types of accounts. This is quite ironic, given that joint accounts are often opened to simplify inheritance matters, not to complicate them.

There are two presumptions associated with joint accounts, under NYBL 675:

1. Moiety Rule: When a deposit is made into a joint bank account in the name of the depositor and another person, each account holder is granted an immediate and unconditional one-half interest in the deposited funds.

2.
Read more . . .