How to Avoid Conflict Between Your Power of Attorney and Health Care Proxy

When assigning people to be your power of attorney agent or health care proxy, you are bound to choose the people who you deem to be the most fit for the role. A health care proxy is someone who you assign in advance to carry out your medical decisions when you are deemed unable to. A power of attorney agent is someone who is also assigned to make financial decisions for you in the situation that you’re unable to. In some cases, they can be the same person for both positions but in other cases, they can be different people. Although a power of attorney agent has different responsibilities from those of a health care proxy, it is not uncommon for the two to occasionally have some overlapping decisions. When this happens, the possibility that there will be conflicts between the two is not surprising. So what are some ways to prevent these conflicts?

Avoid Conflict Between POA and HCP

1.) Choosing One Person For Both Roles.

  • This is the simplest and most popular choice when deciding on who will be responsible for both roles. It allows for just one person to make your decisions for you (both medical and financial) in your best interest without having to go through the trouble of talking- and possibly arguing with another person. 

2.) Pick Two People Who Can Get Along With Each Other. 

  • Sometimes, it’s not reasonable to choose just one person for both roles. Not everybody is good at everything. For example, you may have an ideal person in mind for being your health care proxy but that same individual may not be a good choice to represent your finances. In this case, you would have to get another person to be your power of attorney agent. Although “getting along” may seem self-explanatory, people tend to choose others who are simply suited for the role while overlooking clashing personalities. This can lead to arguments down the line so it is best to ensure that the two representatives can get along and sort out issues in a calm manner. 

3.) Assign a Third Person With The Power To Settle Disputes.

  • If necessary, adding a third person to be a mediator of the two can decrease the number of conflicts that may arise. Additionally, this person’s name should also be included in the documents indicating what their role is. It is best to discuss with all parties involved about your wishes and what you would want to happen in the case you become incapacitated. 

It is never ideal to have people bicker over what you might have wanted. Hopefully, with these tips, disagreements will not occur between your health care proxy and power of attorney agent. If you or a loved on is having trouble figuring out estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

How to Prepare for a Meeting With an Estate Planning Attorney

Estate planning can often be an overwhelming process. Aside from having to get your affairs in order, you are also forced to think about things you may have never thought of before. For example, what would you want to happen at the event of your death?  What should be done with your home? Who would you like to give your assets to? Thus, there is a lot to consider and it can get very stressful. This is where an estate planning attorney comes in to guide you.

How to Prepare for a Meeting With an Estate Planning Attorney

What is estate planning? 

Estate planning is the process by which an individual arranges their assets and designates who will receive them at the event of their death or incapacitation. Its purpose is to ensure your wishes and goals are fulfilled in the best way. 

When the time comes to meet with your estate planning attorney, there are a few things you can do to be prepared and make the process smoother:

  • Inventory

One of the first things you should do is review your assets, this can be both tangible and intangible.

Tangible assets may include: 

  • Homes, land, real estate 
  • Vehicles like cars, boats, motorcycles 
  • Collectibles, antiques or other personal valuable possessions  

Intangible assets may include: 

  • Checking and savings account
  • Stocks, bonds, mutual funds
  • Retirement plans like 401K, 403B, IRA’s, etc.
  • Ownership in a business 
  • Life insurance policies

  • Documentation 

Once you have finished inventory of your assets, your next step should be preparing to provide documentation of financial statements, this may include but not limited to: 

  • Bank and investment account statements 
  • Business agreements 
  • Grant deeds to real estate 
  • Life insurance information 
  • Mortgages 
  • Trademark, patent and copyright registration certificates 
  • Divorce agreements 

  • Account for Family

One of the most important steps is to discuss your wishes with your family and consider what you want to leave for them in the event that you are no longer with them. Although it may be difficult, it's important to be clear and open about your decisions, as other family members may have different views than you. Some things you may want to consider:

  • Assigning a guardian for your children if need be
  • Having enough life insurance 
  • Documenting your wishes for your family's care
  • Taking consideration for special care needs of family members with disabilities 
  • Deciding what specific assets you want to leave for each member 
  • It is also important to have information on all family members (names ,ages, contact information, etc.)

  • Establishing Roles

During estate planning, there are different important roles that come into play that you should think about. This includes deciding who you assign to be an:

  • Executor- someone who carries out directions in a will that deals with financial affairs and assets.
  • Beneficiaries- anyone you name in your estate plan to receive benefits.  
  • Trustee- someone who takes legal ownership of your assets held in a trust and is responsible for managing them.  
  • Successor trustee- someone who takes role of a trustee in the event the original trustee dies or becomes incapacitated.  
  • Guardian- if a minor is involved, a Guardian needs to be appointed in the event both parents die before the minor becomes an adult  
  • Agent (health care)- someone you give the power to make medical decisions for you if you are unable or incapacited. (a health care agent cannot override any preferences you have set in a living will) 
  • Durable power of attorney- a person or people you authorize to make decisions on your behalf when you are not physically or mentally capable. 

  • Be Prepared With Questions

Estate planning can be a tricky process, therefore you should never hesitate to ask an attorney any questions you may have. After all, they are there to help you and make this process as simple as possible !

For assistance on your estate planning needs, contact the Law Office of Inna Fershteyn at (718)-333-2395 for highly qualified advice.

How to Change a Living Trust?

With life’s ups and downs, it is natural for people to go through many changes throughout their lives. Some of these major changes in your life may make you want to change your living trust. To start, a living trust should not be mistaken for a will. The major difference between the two is that wills go into effect after death while living trusts are effective once they are signed and funded. Most people have revocable living trusts which allows for flexibility and change. However, if you have an irrevocable trust, it would be extremely difficult to make changes as they were made to be permanent and unmalleable.

How to Change a Living Trust

As mentioned previously, there are many reasons that may lead you to make amends to your living trust. Some reasons may be:

  • Adding or changing beneficiaries
  • Getting married
  • Change in distribution of assets
  • Major beneficiary dies 
  • Moving to another state 

In addition, if the living trust is a shared trust, both parties are required to consent in writing for changes. Only one party is needed if it is decided to revoke the living will. Furthermore, if one spouse dies, the surviving spouse can only make amends to their own property and not the deceased spouse’s property. 

The simplest way to make changes to your living trust is to fill out a trust amendment form. This form lets you keep the original trust active while making changes to it. In the situation that you have made changes in the past, you must indicate that these changes override any previous amendments or if you want to keep them in effect. When making these changes, be sure to refer back to your original trust and refer to the changes by which paragraph you are intending to change. This way, it will not cause any confusion and ensure the clarity of your new changes. 

If you plan on making major revisions to your living will but you do not want to revoke your trust, a trust restatement is also possible. This redos your entire trust and allows it to be in effect with the new trust restatement document. 

In severe cases, it can be more plausible for you to revoke your trust instead of making amendments to it. The reason for this is because if the changes are severe, adding amendments to an already established living trust may cause confusion. Oftentimes, people do not revoke their trusts since it means that all their assets from the trust will have to be transferred back into a new trust. Although it is not recommended and can be more expensive and troublesome to revoke a living trust, it is worth it considering that you would want your assets to fall into the right hands. 

Changes in life are bound to happen and it is common that living trusts change with those life turning points. It is important that your assets go where you want them to. If you or a loved one needs assistance on creating trusts or any estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

5 Different Types of Trusts That Can Be Created in New York

There are many different ways a person can set up an estate plan to protect and prepare for the future of their assets after their death. One way that this is done is through the creation of a trust. A trust is a legal arrangement that allows a third party, a trustee, to hold and manage assets on behalf of the beneficiaries until they are able to inherit them. Its purpose is to ensure that a person's assets are protected and utilized in a way they deem fit. There are various types of trusts that serve for different purposes. Therefore, it's important to understand the different types of trusts in order to know which will suit you best. 

Different Types of Trusts That Can Be Created in New York

What are the different types of trusts?

1.) Irrevocable Trust

An Irrevocable Trust is a type of trust that, once executed, cannot be changed or revoked without consent of all beneficiaries or a court approval. Essentially, this means once your assets are in the trust, you no longer have full control over them as well as the freedom to make any revisions you want. However, a benefit of this type of trust is that assets in the trust will not be subject to state or federal estate taxes. In addition, assets are also protected from creditors and legal judgment which avoids lawsuits and false claims. 

2.) Revocable Trust

A Revocable Trust, also known as a living trust, is a type of trust that allows you to modify or change anything at any time you see fit, without needing the consent of any beneficiaries. With a revocable trust you have full and complete control over your assets, how you want them distributed and if you want to add or revoke any. It is also commonly used for those who want to avoid the probate process, which can take months to years. However, assets in this trust are subject to state and federal estate taxes. In addition, assets are not protected from lawsuits and creditors. 

3.) Special Needs Trust

A Special Needs Trust, also known as a supplemental needs trust, can be established as a living trust and is generally designed for a loved one with a disability. It is commonly  used for a dependent such as a child, sibling or parents that are unable to provide for their own financial needs. It is also made to continue caring for a person with special needs without disrupting government entitlement benefits such as SSI or medicaid. 

4.) Charitable Trust

A Charity Trust is an irrevocable trust that is made to simultaneously benefit you, your beneficiaries and a Charity of your choosing that is qualified under IRS rules. There are 2 types of charitable trusts:

Charitable Lead Trust - The way a charitable lead trust works is, individuals are allowed to choose charities that will receive interest from the financial gift they have assigned to them for a specified period of time. Once the period has ended, the remaining assets may either go to their family or beneficiaries. 

Charitable Remainder Trust - The way a charitable remainder trust works is that you, your family or your beneficiaries can receive interest from a financial gift assigned for a determined period of time. Then, once that period has ended, the remainder of the assets go to the charity of your choosing. 

5.) Irrevocable Life Insurance Trust

An Irrevocable life insurance trust is designed to help those who have estates that might exceed federal or New York estate tax exemptions. With this, trustors are allowed to exclude life insurance proceeds from the taxable estate. This then allows beneficiaries to be free from any taxes that may be placed on the trustor's life insurance policy in the estate and to transfer death benefits immediately. 

A trust is a very valuable tool when it comes to estate planning. With so many different types available, it can be tricky choosing which one is best for you. If you need an attorney to help determine which trust is best for you, contact the Law Office of Inna Fershteyn at (718) 333-2395.

When is the Best Time to Write a Will?

The thought of writing a will may seem daunting for people as it brings up a topic that no one wants to talk about: death. However, a will is necessary as it will help prevent conflict and trouble for loved ones in the future. It also allows you to decide where you want your assets, property, and more to go to after you have passed. Without it, your assets may go somewhere you don’t want them to. 

5-occasions-to-write-a-will

As the COVID-19 pandemic gradually comes to an end, it was surveyed that 66% of Americans who had serious COVID cases were more likely to have a will. It was also found that 50% of young adults were now more likely to have a will now when compared to pre-pandemic times. After the pandemic, more people now than ever are thinking about their wills- but a life-threatening situation shouldn’t be the only time to think about writing a will. Any time is a good time, especially these five occasions below:

Occasions to write a will:

1. Turning 18

  • In the U.S, most states will allow those who are 18 and over to legally write a will for the first time. Why not get started and think ahead? It’s never too early to start writing a will. Even if you are just 18, a will is always available for alterations as life changes and progresses. 

2. Change in marital status 

  • Whether you get married, divorced, or separated, it comes with significant changes in financial and personal matters. These changes will influence the decisions you will have to write in your will. It is important to ask yourself if you want your spouse (or ex-spouse) to be part of your beneficiaries or not. 

3. Change in financial circumstances

  • Factors such as starting your own business, getting a promotion, or even buying a house can drastically change your estate plan’s situation. Especially when starting a business or buying a house, it is crucial to consider who the succession of the business or inheritance of the house will go to. 

4. Having children

  • As mentioned previously, it is common that those who have children will leave their property and assets to their children. However, people tend to forget that a will can also dictate guardianship for children who are minors if both parents are deceased.  

5. Prolonged amount of time

  • As time goes on, family dynamics and relationships may change which will alter your estate plan as well. It is also possible that the planned executor of your will dies before you do. Even if you do already have a will, it is essential to update it after major life changes. Regardless, if you have been putting off writing up a will, there’s no better time than today. 

For a will to be correctly done and valid after death, it is important to go to an attorney. By executing a valid will, the court will not have to probate the will- saving your loved ones time and trouble. If you or a loved one need assistance or more information on estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

Responsibilities of an Executor Or Administrator

Today we will discuss the basic duties and responsibilities of an executor or an administrator.

But first, what is an executor? An executor is someone who is legally responsible for sorting out the affairs of the deceased individual. The executor must carry out their duties diligently, impartially, and honestly. An executor who fails to do so may be held personally liable by a court of law. Each state has its own requirements as to who can serve as an executor or administrator but generally, the roles are very similar. The position of executor is a paid position and each state provides its own rules for executor compensation. However, because executors are usually close family members, many executors forgo their compensation.

what are your responsibilities if you’re appointed as an executor or administrator?

And what is an administrator?  An administrator is someone who is appointed by the Surrogate Court to be legally responsible for the decedent’s affairs. The difference between an estate executor and an estate administrator depends on if the deceased left a will, named an executor, or if the named executor declined the appointment. Therefore, if the decedent did not leave a will (dying intestate), does not name an executor in their Will, or a listed executor declines the appointment, the court will choose the administrator of the estate. The administrator must then make sure the estate is settled according to New York intestacy laws which is what an executor does anyways. 

Both the Executor and the Administrator are responsible for making sure that debts and taxes are paid and that what remains in the estate is distributed properly to the heirs of the estate, according to the wishes of the decedent. Both executors and an administrator have the same responsibilities to the state and to the deceased’s beneficiaries. 

The Executor’s or Administrator’s Responsibilities Include The Following:

  1. Determine If Probate Is Necessary

Probate is the legal procedure an estate goes through after someone passes away. This procedure is how the surrogate court will start the process of distributing the estate to the proper heirs that the decedent designates. Many assets can be transferred to beneficiaries simply by law (and avoid the probate process) such as jointly held assets or assets that have beneficiary designations (ie. life insurance policies). If all of the decedent’s property falls into this category probate may not be necessary. Additionally, the decedent may have transferred all of their property to a revocable (living) trust which similarly does not need to go through probate. If, however, the decedent owned assets outright, meaning they’re simply stated in a will, those assets do not automatically transfer upon their death. Instead, probate will be required and the executor or administrator will need to file a petition with the court to be legally assigned as the executor. It is highly advisable to work with an attorney to probate the estate.

  1. File the Original Will With the Local Surrogate Court

The executor is responsible for locating, reading, and understanding the will to determine who will inherit the decedent’s assets. Generally, only an original will can be submitted to the surrogate court to go through probate. An experienced estate planning attorney can assist with this duty.

  1. Notify Financial Institutions & Government Agencies of the Decedent’s Death

The executor should notify the decedent’s banks, credit card companies, and government agencies like the Social Security Administration of the decedent’s death.

  1. Set up a Bank Account for Incoming Funds and Pay Any Ongoing Bills 

The executor has to set up an estate account with a bank so the decedent’s assets can be transferred to it. The account will be used for the ultimate distribution of the assets to any creditors and heirs. The executor should also use this account to pay the decedent’s mortgages, utilities, and other bills that still need to be paid throughout the probate process.

  1. Maintain the Property Until It Can Be Distributed or Sold

The executor has to find, protect and preserve all of the decedent’s assets until they can be distributed. This includes any real property (houses, cars, boats, etc...) owned by the decedent until it is distributed to heirs or sold.

  1. Pay the Estate’s Debts and Taxes

The executor is obligated to pay the decedent’s debts if there are sufficient assets in the estate to cover them. The executor must also file income tax returns starting from January 1st of the current year until the date of the decedent’s death. If the estate is large enough, a Federal estate tax return will need to be filed. Also, if the decedent’s estate exceeds the estate tax exemption in the year of the decedent’s death, state and federal estate taxes may have to be paid.

  1. Distribute Assets

The most common responsibility of the executor or administrator is that they must distribute the decedent’s assets pursuant to the will’s directives. This is after a surrogate court judge has validated the will.  If there is no will, state intestacy laws apply and the administrator will carry out almost all of the same responsibilities as an executor. 

  1. File an Inventory of the Estate’s Assets With the Court

Once the executor knows all the assets in the estate and distributes them pursuant to the will the executor must file an inventory of the assets with the Surrogate Court.

How can an estate lawyer help

Since each estate varies in size and complexity, an executor’s job may be fairly simple or very challenging to carry out. Responsibilities may very well go beyond the 10 common duties in this list. Consulting with an experienced and knowledgeable estate planning attorney is certainly recommended.

For further estate planning assistance, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice. 

Can Creditors Take My Social Security Checks?

Creditors generally cannot seize Social Security benefits, even if they have sued you and obtained a court judgment against you. However, there are some limited exceptions to this rule for certain types of government debts which are detailed below.

credit or ssocial security

Are Social Security benefits protected by law?

Yes. Creditors cannot garnish or confiscate Social Security benefits, whether they be retirement, disability, survivor's benefits, or SSI, with the exception of certain federal agencies. This safeguard has been codified into law by Congress. This means that conventional creditors, such as credit card companies, medical collectors, and loan businesses, are prohibited from taking Social Security benefits if it is evident that the money they want is Social Security income. 

Does it matter if the creditor has sued me in court? 

No. Even if the creditor obtains a court judgment against you, these rights apply. You may not be able to pay the judgment with Social Security funds if the court rules against you. As a result, if you are sued for a debt, it is critical that you do not enter into any agreed orders or judgments that require you to pay a debt with your Social Security benefits.

Do these protections exist if the Social Security money is deposited into a bank account? 

Yes. Once funds are placed in a bank, they are protected against garnishment or confiscation. The Court, on the other hand, must be able to distinguish between exempt and non-exempt funds.

If the Court cannot tell whether money is Social Security income from your documents and bank statements, the Court will most likely rule that none of the money is exempt. If Social Security income is directly deposited into a bank account, the statement will reflect a deposit from the United States Treasury at about the same time each month. To make it evident that the Social Security Administration is the only source of funds in the account, the direct deposit from the US Treasury should be the only deposit reported on the bank statement each month. This will show creditors and a court that the money in your bank account is protected income.

What if a collection agency threatens to take my Social Security? 

By making false assertions, the collection agency may be breaking the Fair Debt Collection Practices Act (a federal law that regulates collection agencies). Only if the creditor or collection agency knows that your only source of income is Social Security would these statements be false. You should seek legal assistance if you believe you have legal claims against the collecting agency. 

Can government agencies take my Social Security benefits? 

Yes, but only under limited circumstances.

First, SSI (Supplemental Security Income) cannot be taken at all, unless the Social Security Administration is trying to correct incorrect past payments.

Only federal agencies may try to take Social Security benefits. Examples of some things the federal agencies can try to take your Social Security benefits for are:

  • Federally subsidized student loans.   
  • Other loans owed to, or subsidized by the government.   
  • Food stamp overpayments.   

Can the federal agency take my whole Social Security payment?

No, a government agency can only take a portion of your Social Security check each month.

The first $750 per month (or $9000 per year) is not confiscatable. As a result, if your monthly benefits are less than $750, your benefits cannot be taken.

Can I protest the government’s action? 

Yes. You have the right to get written notice in advance if the government plans to "offset" (take a portion of) your Social Security income. If you believe you do not owe the money, you have the right to a hearing. You might want to seek legal counsel. Another option is to work out a payment plan with the government entity that is threatening to withhold your Social Security income.

Can I get rid of the government debt in bankruptcy? 

Yes, in a lot of circumstances. However, there are certain noteworthy exceptions, such as:

  • Student debts are normally non-dischargeable, and income taxes can only be forgiven in certain situations.
  • If the person or entity to whom you owe the money establishes you collected the obligation by false pretenses or fraud, the debt will not be dismissed.

If you need an experienced attorney to review your financial circumstances and the nature of debts to help you decide the best course of action, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

Handling Bank Account Funds in an Estate

How you handle bank accounts, like any other asset owned by a deceased individual, depends on how they were owned. Here are a few scenarios in which funds are handled and how one may go about handling them under certain circumstances. 

Handling Bank Funds in an Estate

Solely Owned Bank Accounts 

If the deceased individual owned the account in his or her own name and did not identify a payable-on-death beneficiary, the account will certainly be subject to probate. Probate is the legal process that takes place after the death of an individual to make sure that their assets are properly collected and distributed to the appropriate beneficiaries by the appointed executor. If the deceased left behind an estate plan, identifying their beneficiaries is as simple as reading the will; if not, their assets will be distributed according to New York’s intestate succession laws. However, if the total amount of probate assets is low enough to count as a "small estate" under state law, the rightful heirs will be allowed to claim the money using either streamlined probate processes or an affidavit.

Accounts with a Payable-on-death Beneficiary

These are the straightforward ones: because the money is still not part of the deceased person's probate estate, you do not have any control over it as executor. 

The money can be claimed by the beneficiary specified by the deceased individual by visiting the bank with a death certificate and identification. The paperwork in which the account owner chose the POD recipient should be kept with the bank.

Jointly Owned Accounts 

In most situations, if a deceased individual has a joint account with another individual, the surviving co-owner becomes the account's owner immediately. To be transferred to a survivor, the account does not need to go through probate.

The Right of Survivorship

There are, however, exceptions to this general norm. The "right of survivorship" applies to most accounts that are held in the names of two individuals, but not all. In other words, if one of the co-owners dies, the money immediately passes to the surviving co-owner. (It typically works in the same manner with retirement funds.) 

Sometimes it may be obvious that the account has a right of survivorship. Suppose the account is named "Lisa Johnson and William Johnson, JTWROS." (Joint tenants with right of survivorship is the acronym.)

It's likely still a joint tenancy account if the account registration document at the bank only includes two names without mentioning joint tenancy or right of survivorship. In Texas, for example, in order to establish a joint tenancy account, the account owners must sign a separate contract in addition to the bank's registration card.

Disputes About What The Deceased Intended 

When two people—say, a married couple—open a joint account, no one will argue that when one of them dies, the assets in the account go to the survivor. When an elderly person adds someone else's name to an existing bank account, the situation may be different.

This is frequently done to avoid probate in the event of the original owner's death. However, the second name is often added only for the sake of convenience—that is, so that the other person may write checks on the account and assist the original owner. Alternatively, the arrangement is meant to provide simple access to the assets to the second person following the original owner's death, so that the funds may be utilized for the burial or other expenditures.

When the original account owner dies, the person whose name was added to the account legally becomes the outright owner of the money. Unless it’s in writing, any previous agreement about how the money should be spent is unenforceable. The money belongs to the new owner, who can spend it on anything he or she wants. If family members are certain that the deceased individual desired a different outcome, they will have a hard time getting the money back from the surviving joint account owner if they go to court.

Bank Accounts Held In Trusts 

Many people put their significant assets in a living trust to avoid having to go through probate later. You'll be able to tell if the deceased individual had a bank account in trust based on the account statements, which will reveal who the account was owned by for example, "Lisa Johnson, trustee of the Lisa Johnson Revocable Living Trust dated September 9, 2003.”. The account, like other trust assets, is managed by the successor trustee, who takes over once the original trustee passes away. The funds will be transferred to whoever inherits them under the provisions of the trust deed by the successor trustee.

The Law Office of Inna Fershteyn can assist you in handling bank account funds in an estate. Please contact us at (718) 333-2395 for an experienced and diligent estate attorney who is familiar with the probate and trusts process.

Passing Assets to Grandchildren Through a Generation–Skipping Trust

While there are numerous ways in which one can pass assets to family members or following generations, a generation-skipping trust allows a beneficiary—or otherwise called a trustor or grantorthe ability to pass all assets onto the next generation by "skipping" the consecutive generation tax–free. This form of trust is most often utilized for relatives who are at least 37.5 years younger than you. They often include a beneficiary such as a friend, grand–child, or niece/nephew (excluding a spouse or ex-spouse).

Generation-Skipping Trusts and Esates

What is a Generation-Skipping Trust?

A generation-skipping trust is an established trust that names a beneficiary who has to be at least 37.5 years younger than the settlor. A generation-skipping trust can be established by a settlor, as part of a complete estate plan to reduce tax obligation. 

A settlor, for example, might leave an inheritance to a grandchild without ever transferring ownership of the assets to the child's parents. The assets flow tax–free to the recipient upon an individual’s death from the consecutive generation.

How a Generation-Skipping Trust Works

Generation-skipping trust laws provide precise requirements for who can be designated as the "skip person," according to the United States Code. According to these laws, the skip person, or beneficiary, must be “a natural person allocated to a generation 2 or more generations below the transferor's generation assignment.”

Three Things to Consider when Creating a Generation-Skipping Trust

  1. First, the federal GST exemption level was raised to $11.4 million in 2019 and $11.58 million in 2020, after being adjusted for inflation. This implies that you are eligible for a lifelong generation-skipping tax exemption on property transfers up to that amount. There are twelve states who additionally have their own inheritance tax, which applies to smaller estates in some cases. When someone leaves an estate to their child, who then leaves the estate to their offspring, the estate taxes are levied twice. One of these transactions and estate tax assessments is avoided by using a generation-skipping trust.
  2. As long as the original assets stay in the trust for the deceased person, there is no restriction prohibiting the following generation from obtaining earnings on assets. The trust can also be set up for them to obtain a voice in future beneficiaries' rights and interests. When your children pass away, the assets will transfer to the beneficiaries.
  3. It is not necessary for the recipient to be blood related. A generation-skipping trust solely requires that the trust is created for a beneficiary who is at least 37 1/2 years younger than the deceased individual.

Generation-Skipping Trust and Taxes

“Congress created the generation-skipping transfer (GST) tax and connected all three taxes [estate, gift, and generation-skipping transfer taxes] into a single estate and gift tax,” according to the Tax Policy Center, with the objective of eliminating the estate tax loophole.

Accordingly, by moving assets to the trust that falls under the exemption amount, the trust can be established to take advantage of the GST tax exemption. If the assets appreciate in value, the proceeds can be distributed to the trust's beneficiaries. Furthermore, because the trust is unchangeable, your estate will be free from paying GST even if the value of the assets exceeds the exemption limit. This is also true for any asset appreciation because all profits are transferred directly to beneficiaries. This means you will not have to pay the generation-skipping transfer tax if the value of the trust's assets totals to an amount exceeding the exemption maximum.

The estate tax exemption was increased through 2026 by the Tax Cuts and Jobs Act, which was passed into law in 2017. Because of the large barrier, most people will not be subject to the generation-skipping transfer tax. However, beneficiaries who receive assets in excess of the $11.58 million inflation-indexed exemption would be subject to a 40% top tax rate on the taxable amount.

Gift Tax

The individual gift tax for 2019 was $11.4 million. As a result, you and your spouse will be able to exchange $11.4 million over the course of your lives. Through 2025, the yearly lifetime gift tax exemption has been raised by the Tax Cuts and Jobs Act of 2017. The gift tax increased  to $11.58 million per person in 2020.

Determining Whether a Generation-Skipping Trust is Right For You

Since a generation-skipping trust is a complex legal structure, it is a good idea to think about it as soon as possible—preferably when you are starting to plan your retirement.

A generation-skipping trust is an excellent concept for capital preservation if you have a significant estate that is likely to be affected by the federal estate tax, and where, barring any catastrophic circumstances, your children will also have to pay the estate tax. It can also prove to be a sufficient resource in preserving your personal assets to those you wish to desire. Nonetheless, you must keep in mind that trusts are irreversible.

If you are in need of a highly qualified and experienced attorney for advice on how to build a trust, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to have all of your authorization questions answered.

Why Should You Avoid Buying and Executing a Power of Attorney Form Online?

A Power of Attorney (POA) legal document is signed by an individual (principal) who grants authority to a trusted individual (agent) to carry out transactions on their behalf. The instances during which this may occur are specified within the content of the document, so it is important to pay attention to every detail. The principal may grant the agent power over medical decisions, asset/property transactions, and their bank account. Clearly, this is a matter that must be presided over with extreme care.

Avoid an online POA form

Most individuals hire an attorney to help understand the process and create clauses that are tailored to their wishes. However nowadays, many people also resort to purchasing an online POA form by finding downloadable templates and forms. Yet, these forms are generic and most times will not cater to your specific needs. They are filled out without a present attorney and witnesses. As a result, they are frequently liable to mistakes that can easily be challenged in court at a later time. 

Reasons to Avoid Using a POA Template

  • No Customization

With a predetermined “one size fits all” online form, there is no interview process tailored towards your financial, medical, and legal needs. This information is crucial to determine which clauses are appropriate to add to your document, and which should be excluded. This often includes deciding whether the document executor should have the authority to distribute gifts to family members, and placing limitations on such transactions. In other instances, assets may need to be distributed accordingly one day. Lastly, perhaps the individual may need to be placed in the hands of a caregiver or nursing home. A clause may need to be added that determines who presides over this decision. 

  • No Professional Counsel

It is crucial to have someone with legal experience assist in important documentation execution. You must have an attorney present to assist in naming an agent and their successor. An attorney will also decide when the document’s power goes into effect: is it effective immediately or do its clauses go into effect when the principal administrator is no longer mentally capable? Additionally, an attorney has the knowledge to determine the specific wording that tends to your needs. 

  • No Legal Witnesses

It is important to have witnesses present when signing an important legal document. These witnesses may especially play a critical role in the future if the document’s validation is challenged in court. Witnesses can attest to the fact that the signee was in a capable state of mind to make decisions for themself. 

  • No Quality Assurance

Most importantly, an online POA form does not guarantee a well thought out high quality document. It also does not provide access to a professional source that will guide you through every step and explain the importance of each clause. When writing a POA, it is important to approach the process with a thorough understanding of its importance, and accordingly, the necessity to craft every clause with extreme detail and attention. When put into effect, these documents have the power to transfer assets and/or property, transfer money out of your bank account, and make medical decisions for you. It is a process that is not to be taken lightly. 

As of June 13, 2021, NY has adopted a new POA form. It is important to note that if you already have a POA form in effect, you don’t need to fill out a new one. You simply need to update the one you already have. The new POA form clarifies some confusions and, to some extent, makes the process more reassuring: 

  1. Substantial Conformance

The wording in the POA form does not have to be identical to the wording used in the statutory short form. The old form allowed for any mistake to be rendered as a reason for challenging a POA in court. The new form only needs to “Substantially conform” to the content of the statute . This makes it harder for a POA to be invalidated in court. 

  1. No Gifts Rider

The old form limited an agent’s gift authorization to $500 a year. Any gifts over the $500 limit had to be authorized by a gift rider. A gift rider modifies a POA to allow for such transactions and when notarized, must be witnessed by two witnesses. With the newly implemented change, the gift limit has been increased to $5000 a year and the gifts rider has been eliminated. Gifts that exceed the $5,000 maximum can be accounted for with a modification section on the POA form. 

  1. Signature at Direction of Principal

The new POA can be signed by someone, other than an agent, on behalf of the principal. However, the principal might be present at the time of signature. 

  1. Sanctions for Bank Refusal to Honor Power of Attorney

The new law protects principals from third parties, such as banks, from refusing to accept their POA without reason. Additionally, it protects third parties when proving a POA is valid. It also gives a third party ten business days to decide whether they will accept or refuse the POA they are presented with. 

An Elder Care Attorney will help you with all of your POA drafting needs. An attorney will guide you through the process step by step, while emphasizing and explaining the importance of each clause. An elder care attorney is also most up to date on the recent changes the NY government has made to the POA form and will guide you through these changes whether you are updating an old form or writing a new one. For further information on how to draft a POA form, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to obtain aid in legal document drafting.