Law Offices of Steven M. Adler, PLLC

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Adler Law
E-Newsletter
April 29, 2014

Steven M. Adler, Esq. 
Steven M. Adler, Esq.

390 N. Broadway, Suite 200
Jericho, New York 11753

 

Phone: (516) 876-1105
Fax: (516) 441-5095

 

 
Welcome to the April 29th Issue of the Adler Law E-Newsletter. 

The last year was filled with speculation in the New York estate planning community that the 2014 State budget bill would result in significant changes to New York's long standing estate and gift tax laws.  

 

On March 31, 2014, the New York State Senate and Assembly successfully passed a $140 Billion budget that included the most significant estate tax changes for the State since the estate tax exemption was increased to $1,000,000 in 2002. The new law is effective as of April 1, 2014. Our  first article - New York Budget Bill Makes Changes to Estate Tax addresses these changes and how they may affect your estate plan.

Keeping in mind the new changes in law, our second article - 5 Estate Planning Mistakes To Avoid focuses on basic life changes that can affect you, your loved ones, and your estate plan if not addressed on a continual basis.  Some of these changes include assigning a medical power of attorney to someone who has moved, or not updating the designated beneficiary to your IRA if this is information is different in your will. 

 

We hope that you find our articles helpful. If you have any questions or would like us to discuss a subject of interest to you in one of our future articles, please feel free to contact my Client Services Director Betty Chan and we would be happy to address your concerns in a future issue of Adler Law.

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Sincerely,
Steven M. Adler
 

New York Budget Bill Makes Changes to Estate Tax 

   

On March 31, 2014, the New York State Senate and Assembly successfully passed a $140 Billion budget that included the most significant estate tax changes for the State since the estate tax exemption was increased to $1,000,000 in 2002. The new law is effective as of April 1, 2014.

 

Estate Tax

The most notable change is the increase of the estate tax basic exclusion amount. The exclusion had been $1,000,000 per person since 2002. Effective April 1, 2014, the new law immediately increases the exclusion to $2,062,500 per person. The exclusion then increases each April 1st in the years 2015 through 2018. On January 1, 2019, the basic exclusion amount will be indexed for inflation annually and will be equal to the federal exclusion amount.

 

The exclusion and the timeframe for each increase is as follows:

From April 1, 2014 through March 31, 2015 - $2,062,500

From April 1, 2015 through March 31, 2016 - $3,125,000

From April 1, 2016 through March 31, 2017 - $4,187,500

From April 1, 2017 through December 31, 2018 - $5,250,000

From January 1, 2019 forward - Indexed for inflation

 

Estate tax rates were not changed in the final legislation so the maximum rate remains at 16%. Under federal estate tax laws, the New York State estate tax is deductible and, accordingly, the maximum rate after the deduction is effectively 9.6% for estates subject to federal estate tax.

 

Cliff Concerns

Of particular concern is the new "cliff" language contained in the law.  It has been dubbed a "cliff' because if it is triggered you basically fall into a state estate tax abyss.  The cliff drastically phases in the estate tax for taxable estates that are between 100% and 105% of the exclusion amount. The effect of the cliff on taxable estates that fall within that range is to impose a substantial tax on the value of the assets in excess of the exclusion amount. Once an estate exceeds the basic exclusion amount by more than 5%, not just the amount in excess of the basic exclusion amount is taxed, but, rather, the entire taxable estate is subject to estate tax. In essence, taxable estates greater than 105% of the basic exclusion amount receive no benefit from the exclusion amounts shown above and will pay the same tax that they currently pay.

So, for example, if you are a New Yorker and you die in 2018 with an estate of $5,512,000, your estate will be taxed in its entirety not just the amount in excess of the $5,250,000 basic exclusion amount. This is because your estate is more than 5% above the exclusion amount so you fall off the cliff and your estate does not get the benefit of the exclusion.

Gift Add-Back

New York State repealed its gift tax effective January 1, 2000. The new legislation, however, essentially implements a tax on taxable gifts (i.e., gifts that exceed the annual exclusion amount which is currently $14,000 per recipient per year) if they are made under certain circumstances.  The statutory language does not directly impose a tax on gifts, per se, but, rather, adjusts an individual's gross estate by "adding-back" taxable gifts to an individual's gross estate when calculating the New York estate tax, thus, potentially resulting in a larger estate tax.

 

In order for gifts to be added to the gross estate, the following requirements must be met:  Lifetime taxable gifts (in excess of the $14,000 annual exclusion per donee) which are made by (1) a resident of New York at the time of the gift, and (2) made during the 3 year period before his or her death, and (3) to the extent such gifts are made between April 1, 2014 and December 31, 2018 are "added back" to the decedent's gross estate.

 

Therefore, taxable gifts made outside of the three-year "look-back" period prior to an individual's death, by individuals when they were not residents of New York, or outside the dates above will not be added back to an individual's estate. Because the gifts subject to the add-back provisions will be reported on federal gift tax returns, no separate New York gift tax return requirement was enacted.

 

New York Only Qualified Terminable Interest Property (QTIP) Election

The Budget Legislation includes provisions that may be helpful to some married couples, depending on the size of each spouse's gross estate. Specifically, the legislation provides that if an estate files a federal estate tax return and elects to qualify certain property (e.g., a marital trust) for the unlimited marital deduction from federal estate tax (a so-called "QTIP election"), the estate must make a consistent QTIP election on the New York state estate tax return.  However, if the estate is not required to file a federal estate tax return because the federal gross estate is below the threshold for filing one, the estate may make an independent QTIP election on the New York state estate tax return.

 

No New York State Estate Tax Portability

Under federal estate tax law, the surviving spouse of a married couple can use any unused exemption of a deceased spouse.  For some married couples, portability of the deceased spouse's exemption simplifies planning. The new law enacted does not contain equivalent provisions for New Yorkers. Accordingly, traditional estate tax planning using trusts will be necessary for New Yorkers who are married and have assets in excess of the new exclusion amounts.

 

Repeal of New York State's generation-skipping transfer (GST) tax

Under prior legislation, New York State imposed a GST tax on taxable distributions and/or terminations from a trust to a "skip person" for GST purposes.  The Budget Legislation repeals New York's GST tax entirely.  Unfortunately, this will not result in any overall tax savings for New York estates as the federal GST tax will now be larger, by the amount of the available credit for state GST tax that New York has now decided not to impose.   

  
5 Estate Planning Mistakes To Avoid

 

You've worked hard for what you have. You funded your retirement plan, paid off your home and amassed enough savings to cover future expenses, plus leave a financial legacy to your loved ones.  Too bad your ex-spouse-and his or her kids-will inherit it all.

 

Indeed, estate-planning blunders are costly and common, even among the fiscally prudent.  Any number of oversights can leave you vulnerable in the event you become incapacitated.  Others can seriously compromise the amount your heirs will inherit when you die.

 

For example, 'Bob' made the critical mistake of giving his girlfriend partial control of his assets during his lifetime.  Unbeknownst to him, she had promptly transferred ownership of a significant portion of his estate to herself.  Bob's will named his children as beneficiaries, but there was little left to distribute when he died.  Once it's discovered, it's usually too late if the assets are already spent or transferred out of jurisdiction.

 

If you wish to ensure that your estate does not fall prey to predators, creditors or taxes, keep reading to be sure you're not committing one or more of the five cardinal sins of estate planning.

 

1. Picking poorly

Many people forget that estate planning is a two-part process.  Half of the documents you draft provide instruction for divvying up your estate after you die, but the other, and potentially more important half, outlines directives for handling your finances and medical care if you become disabled.

 

Think long and hard about whom you select as your durable power of attorney and health care proxy.  Your life is literally in their hands.  One of the biggest mistakes that can occur is picking someone not trustworthy or qualified to act on your behalf.   You can put the best estate plan into place, but if you pick the wrong person to help execute it, it doesn't matter.

 

It's a mistake, for example, to pick your eldest child out of a sense of duty, when your youngest child may be more responsible or likely to make better decisions.  You should also consider proximity and be prepared to amend your powers of attorney as needed.   Maybe you picked the child you live closest to now, but they later move halfway across the country.  It's no longer reasonable to ask them to be your medical power of attorney.  Too many people create these documents one time and forget about them.

 

Remember, too, to ask permission before naming someone your power of attorney and health care proxy. The person you selected may not want the job or feel up to the task, and he or she certainly doesn't want to be surprised by the designation after you pass.

 

One final tip: Make sure you sign a Health Insurance Portability and Accountability Act release, which allows medical professionals to discuss your health with your designated representative.

 

2. Leaving your IRA to your estate

Do not name your estate as your individual retirement account beneficiary or it will be subject to claims and creditors during probate, the legal process for settling your estate.  When you die, your individual retirement account would be used to pay off any debts in your name.  Whatever money remains, if any, gets distributed to your heirs-and not in a timely fashion.  Probate is costly and can take years to complete.

 

If the deceased had bad credit card debt or is upside down on a loan, the entire IRA could be used up.  However, naming a live person-or all of your children equally-instead as the IRA beneficiary allows those assets to pass outside of probate free and clear, away from hungry creditors.

 

Another reason not to leave your IRA to your estate is that it denies your heirs the ability to let those assets grow.  How so?  Non-spouse heirs can normally either liquidate an inherited IRA and pay taxes within five years of the owner's death, or "stretch" their required minimum distributions-and tax bite-out over their lifetime.  The stretch option is far more valuable, since it enables the account to continue earning compounded interest for decades to come.  By failing to name a person as your beneficiary, your heirs lose that ability to stretch and must distribute the IRA assets within five years.

 

3. Forgetting to update beneficiaries

Another financial folly?  Failing to update your beneficiary forms after a divorce or death in the family. This is particularly critical where IRA beneficiaries are concerned. For example, if you update your will but forget to change the designated beneficiary to your IRA, the person named to your IRA is legally entitled to that asset when you die.  That could be your estranged ex, who can then leave that money to his or her own children from another marriage.  

 

Thus, it's important to review your designated beneficiaries on all documents (including retirement accounts and life insurance) after every life event and be sure they all reflect what's written in your will.   

 

People circumvent their own will all the time.  They'll indicate in their will that they want their assets divided equally among their three children, but then they go and name one child as the beneficiary to their IRA account and another to their house or a joint bank account.  For example, one client left jumbo certificates of deposit to each of his four sons but then forgot and spent down one of the CDs, leaving that beneficiary out in the cold.

 

If you plan to divide your estate equally among your kids, each beneficiary form for each of your accounts should indicate that the assets are to be divided equally among your children.

 

4. Failing to sign a health-care directive

Equally egregious, where estate planning is concerned, is failing to create an advance health care directive, also known as a living will.  This document lets your family, physicians and friends know what your end-of-life preferences are, as far as procedures such as surgery, organ donation and cardiopulmonary resuscitation are concerned.  In short, it's the piece of paper that tells them whether to pull the plug or not.

 

Such guidance spares your family the emotional angst of having to guess at your wishes when they are already under stress.  We are an aging society and with that comes the potential for loss of capacity and ability.  Without these documents, it's a much more complicated process and it opens the possibility that your family will disagree over what they believe your wishes are and who should be in charge.

 

That's doubly true if you remarried and your spouse and children are at odds, she said. Keep a copy of your signed and completed health-care directive safe and accessible to ensure that your wishes will be known and carried out at the critical moment.  Give a copy to your attorney or family members as well.

 

Many people file their paperwork in a safe deposit box, forgetting that the bank is not allowed to release the contents of that box to beneficiaries until probate is complete. By then, the funeral is over and assets divided according to state law.

 

5. Leaving a living trust unfunded

A living trust, which allows you to pass assets to heirs outside of probate, can be a valuable estate-planning tool.  But it won't do you a bit of good if you fail to put assets into the trust.  Once you set up a living trust, you must retitle your assets under the name of the trust.

 

There's a lot of misunderstanding with individuals when it comes to trusts.   Many people think that the schedules attached to the trust, which asks them to list the assets they will transfer, means they've actually transferred those assets.  That's not the case.  The schedule merely indicates which assets you intend to transfer.

 

You must still take steps to physically change the title of those assets under the name of the trust.  For real property, that involves changing the deed.  For assets such as stocks and bank accounts, the accounts must be retitled by the financial institutions where they are held.

 

And, of course, don't delay

This one's just a bonus, but certainly worth a mention.  Many people delay estate planning, partly because it's unpleasant to contemplate our own mortality, partly due to the expense, and partly because younger adults believe such paperwork isn't necessary until they reach old age.

 

Big mistake, especially if you have young children.  If you don't create an estate plan, you're letting the courts decide how to divide your assets, which may not reflect your wishes, particularly if you have children or specific distribution desires.   If you wish to donate to charity, for example, the courts aren't going to grant that unless it is specified in your will.  Without a road map, it just makes it much more difficult for everyone.   Postponing the process may also limit your ability to maximize the amount you leave to your heirs.   If you wait too long, some of the best planning opportunities may be gone.  For taxable estates, you could have gifted money or restructured assets.

 

The biggest estate-planning mistakes can be easily avoided with a few signed documents and some vigilance. Because of the complexity involved, however, it's vital that proper legal counseling be used.  This is one of those areas where it's even more expensive if you don't take care of it correctly.  


Hm
mm....





Dan knew he was going to inherit a fortune when his sickly father died.

 

He decided that he needed to be with his dream woman to really enjoy it.

 

One evening he was at a singles bar where he spotted the most attractive woman he had ever seen. Her natural beauty took his breath away.

 

"I may look like just an ordinary man," he said as he walked up to her, "but in just a month or two, my father will die, and I'll inherit 20 million dollars."     

 

Impressed, the woman went home with him that evening.

 

Three days later, she became his stepmother.

 

When it comes to Estate Planning, women are so much smarter than men.

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The Law Offices of Steven M. Adler, PLLC are committed to providing their clients with the highest level of professional legal services at reasonable prices. Steven M. Adler, Esq., along with the rest of his law firm's highly competent support staff, gives all of his clients the personal attention and the legal expertise which they are entitled to receive. The Law Offices of Steven M. Adler, PLLC takes pride in the quality, effectiveness and efficiency of their legal services.


Law Offices of Steven M. Adler, PLLC
390 N. Broadway, Suite 200
Jericho, New York 11753
Phone: (516) 876-1105
Fax: (516) 441-5095
Web Site: www.sawlaw.com

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