About Trusts & Estates Lawyers

About Trusts & Estates Practice

Advance Directives

  • Purpose of Advanced Directives
  • Living Will
  • Health Care Proxy
    • In NY, you cannot appoint two agents in a health care proxy.
    • In NY, you need two witnesses.
    • You can revoke a prior health care proxy, but you have to give agents notice.
    • Give copies to doctors and other care providers.
  • Power of Attorney

Asset Protection

  • Asset Protection Trust
    • Nevada Asset Protection Trust (NAPT)
      • The Northern Trust Company of Nevada
  • Voidable Transfers

Assets

  • Art
  • Bank Account
  • Brokerage Account
  • Co-op
  • Cryptocurrency (also called digital currency or virtual currency, it includes Bitcoin)
    • Blockchain
    • Distributed Ledger
    • Initial Coin Offering
    • SEC Regulations
    • “Smart Contracts”
    • Taxed as Property
  • Intellectual Property (Contract Covering a Literary Work or Musical Composition, Patent Rights, Royalties)
  • Jewelry
  • Life Insurance
  • Mortgage, First Trust Deed, Real Estate Sales Contract
  • Motor Vehicle or Trailer
  • Partnership Interest
  • Personal Effects
  • Real Estate (Home, Vacation Property, Investment Property)
    • Residential Lease and Lease Renewal
    • Commercial Lease
  • Safe Deposit Box
  • Securities (stocks and bonds)

Biden’s Tax Proposals

  • Private placement life insurance trusts can be used to lessen the burden of Biden’s proposed increases to the federal and state income and capital gains taxes. See Al W. King III, Zero Tax Trusts, Trusts & Estates Magazine, Sept. 2021.

Burial (Cemetery) Plot

Businesses

  • Business Agreements
  • Business Exit Planning
  • Business Succession Planning
  • Entity Selection
  • Selling a Business
    • Business and Tax Considerations Before Selling
    • Non-Disclosure Agreements When Selling a Business

Charitable Planning

  • Donor Advised Fund
    • A donor advised fund can be commercially sponsored. See Christopher P. Woehrle, Donor-Advised Funds 2, Litigants 0, Trusts & Estates Magazine, Sept. 2021 (“examines a recent unsuccessful challenge to a commercially sponsored donor-advised fund.”).

Class Gifts

Construction Proceeding 🔐

Disinheriting Someone

Dispositive Provisions

  • per stirpes
  • per capita
  • by representation at each generation
  • in equal shares per stirpes

<– To do based on excerpt from Drawing 1:4.1

  • Study Drawing 2:13.1
  • Study Drawing 2:13.2 –>

Domestic Relations

  • Divorce / Will
  • Postnuptial Agreements (Postnups)
    • See Michael A. Mosberg & Mark A. Bank, Legality of the Postnuptial Agreement, Trusts & Estates Magazine, Sept. 2021 (“Cases related to postnups often center on: (1) consideration, and (2) fiduciary duties related to disclosure. Here’s a roundup of cases reflecting how courts have ruled on these issues.”).

Elder Law

  • Paying for Long-Term Care
    • Medicaid Eligibility
    • Medicaid Applications
    • Spousal Refusal
    • Medicaid Asset Protection Trust (MAPT)
  • Supplemental Needs Trust (SNT)
  • Issues with Retirement Accounts
  • Ethics
  • Suing a Nursing Home for Neglect

Estate Administration Issues

Estates in Land Classification 🔐

Estate Planning

  • Estate Planning Definition
  • Estate Planning for Agriculture
  • Estate Planning for Physicians
  • Foundational Estate Planning
  • Get your paperwork together and your affairs in order to reduce the burden on your loved ones after you’re gone.
  • High Net Worth Estate Planning
  • Reasons for a Will
  • When a client comes in for a “simple will,” it might not be so simple. The lawyer’s job is to ask questions, and these questions usually reveal complexities that the prospective client did not consider, such as a second marriage, children from a prior marriage, or disabled children. At a minimum, an estate planning lawyer must get information about the client’s family and assets, draft a family tree, explain the difference between probate and non-probate assets, and coordinate non-probate assets with the will.
  • Will v. Revocable Trust

Family Tree 🔐

Federal Court Practice 🔐

Federal Estate Tax

  • When an estate files a return late, penalties will be assessed. The estate can then seek a refund. See Leighton v. United States, which is discussed in David A. Handler, Tax Law Update, Trusts & Estates Magazine, Sept. 2021.

Federal Gift Tax

  • How to prepare a gift tax return (Form 709)
  • Is a transaction a gift or a contract? See Pratte v. Bradwell, which is discussed in David A. Handler, Tax Law Update, Trusts & Estates Magazine, Sept. 2021.

Fiduciaries: Commissions

Fiduciaries: Removal & Suspension 🔐

Funeral Service

Guardian ad Litem 🔐

Insurance Policies

  • A credit card can offer an accident policy.

Intestacy Law in NY 🔐

Life Insurance Planning 🔐

  • Private placement life insurance trusts can be used to lessen the burden of Biden’s proposed increases to the federal and state income and capital gains taxes. See Al W. King III, Zero Tax Trusts, Trusts & Estates Magazine, Sept. 2021.
  • Secondary market for life insurance
    • Purpose: to tap into the market value of policies that are underperforming or are simply no longer needed
    • Tools:
      • life settlements
      • life settlement with a death benefit option

Medicaid Planning 🔐

  • Medicaid Asset Protection Trust (MAPT)

Password List

Planning for . . .

  • Children
    • 2503(c) Trust
      • See Kristen A. Curatolo & David A. Handler, Help—My Child is About to Receive a Windfall!, Trusts & Estates Magazine, Sept. 2021 (“Internal Revenue Code Section 2503(c) provides an option for annual exclusion gifts made for minor children by creating an ‘irrevocable minor’s trust.’ In such a trust, there’s no annual withdrawal right; instead, gifts for the minor child qualify for the gift tax annual exclusion if the child has the right to withdraw all of the trust assets at age 21. But those trusts, and similar custodial accounts, can balloon to astronomical values. Read about solutions for oversized trusts and custodial accounts for minor beneficiaries.”).
    • Rights of Adopted Children
      • DRL 115. An adopted child inherits from foster parents, but does not inherit through a foster parent from the kin of such foster parent.
      • Matter of Park (15 N.Y.2d 413). Interprets DRL 115: “A testator or settlor must know that in light of New York policy a foster child has exactly the same ‘legal relation’ to the parent as a natural child. In the absence off an explicit purpose stated in the will or a trust instrument to exclude such a child, he must be deemed included, whether the word ‘heir,’ ‘child,’ ‘issue’ or other generic term expressing the parentchild relationship is used.”
  • Couples who Are Married
  • Couples who Are Same Sex
  • Couples who Are Unmarried
  • Getting Older
  • High Net Worth Clients
    • Dynasty Trust
  • Individual with Special Needs
    • Consider: ABLE Accounts, qualified disability trusts
  • Incapacity
  • Long Term Care
  • Muslim Clients
    • See Yaser Ali & Martin M. Shenkman, Sharia Inheritance Estate Plans, Trusts & Estates Mag., Sept. 2021.
  • Single Individuals
  • Single Mothers
  • Your Death

Power of Attorney

Precautionary Addendum 🔐

Renunciation

  • See EPTL 2-1.11.

Reverse Mortgage

Rule Against Perpetuities

Tax Law

  • Corporate Tax
    • Corporate Foreign Tax Credits
  • Form 3520/3520-A
  • Tax Controversy
    • IRS Tax Audits and Investigations
    • IRS Collections

Trusts

  • Formation
  • Amending or revoking an irrevocable trust (EPTL 7-1.9, enacted in 1966, based on earlier statutes)
  • Decanting (EPTL 10-6.6(b) et seq., enacted in 1992)
  • Accounting/Settlement
    • Accounting can be intermediate or final.
    • Ways to account:
      • Formal: Judicial Accounting
      • Informal: (1) Nonjudicial Settlement Agreement, or (2) Receipt and Release Agreement
    • Final Accounting
      • Review trustee’s acts
      • Terminate trust
      • Pay trust’s unpaid income taxes, statutory commissions and any other commissions due to the trustee, accountant’s fee for preparing federal and state income tax returns, legal fees to a lawyer for preparing the receipt and release agreement and accounting
    • Nonjudicial Settlement Agreement (NJSA)
      • A way for a trust’s beneficiaries and trustees to resolve trust matters.
      • Allowed in a majority of states.
      • An NJSA must not violate a material purpose of the trust.
      • See Matthew P. D’Emilio & Tara S. Hersh, Don’t Overlook a Trust’s Material Purpose, Trusts & Estates Magazine, Sept. 2021.
    • Receipt & Release Agreement
      • Save the substantial cost and delays of a formal judicial accounting
      • Like any agreement, a receipt and release agreement can have exhibits.
    • Accounting Proceeding
      • Purpose. The purpose of an an accounting proceeding is to settle the accounts of trustees – e.g., trustees under a will. An accounting proceeding can also raise issues of construction.
      • Procedure
        • Petition. A formal accounting proceeding requires a petition. Accounts are included with the petition showing how the trustee distributed the trust’s income and principal. These accounts show how the trustee interpreted the distribution provisions of the trust.
        • Supplemental Petition. Petitioners can file a supplemental petition that raises a question of construction in light of a Court of Appeals decision.
  • Prudent Investor Act (EPTL 11-2.3)
  • Splitting of trusts (EPTL 7-1.13, first enacted in 1995)
  • Terminate a Trust
    • See Alexander A. Bove, Jr., A Small Step for an Impatient Beneficiary, Trusts & Estates Mag., Sept. 2021 (“The author strongly criticizes allowing beneficiaries to move to terminate a trust for no reason other than a desire to possess the trust assets sooner rather than later. In his opinion, the Uniform Law Commission has clearly disregarded the rule that a settlor’s intentions are paramount and should be honored.”).
  • Uniform Trust Code

Trust Types

  • 2642(c) Trust
  • Blind Trust
  • Bypass Trust (B-Trust or Credit Shelter Trust)
  • Charitable Remainder Trust (CRT)
  • Crummey Trust
  • Discretionary v. Non-Discretionary Trust
  • Domestic Asset Protection Trust
  • Dynasty Trust
  • Electing Small Business Trust (ESBT)
  • Foreign Trust
  • Grantor Retained Annuity Trust (GRAT)
  • Grantor Retained Income Trust (GRIT)
  • Grantor Retain Unitrust (GRUT)
  • Incomplete Nongrantor Trust (ING)
  • Intentionally Defective Grantor Trust (IDGT)
  • Irrevocable Life Insurance Trust
  • Irrevocable Trusts
  • Medicaid Trust
  • Minor Trust
  • Revocable Living Trust (RLT)
  • Qualifying Domestic Trust (QDOT)
  • Qualified Personal Residence Trust (QPRT)
  • Qualified Subchapter S Trust (QSST)
  • Qualified Terminal Interest Property Trust (QTIP Trust or Marital Trust)
  • Special Needs Trust (SNT)
  • Spendthrift Trust
  • Spousal Lifetime Access Trust (SLAT)
  • Stand-Alone IRA Beneficiary Trust

Wills

  • Drafting
    • Do you write co-executor?
    • Simultaneous deaths
    • What should every will include?
    • How to avoid common mistakes in will drafting
    • Testamentary Trust. A will can create a trust. This trust is called a testamentary trust.1 After the testator dies, the trust is said to be “under the will of the testator.”
  • Execution
  • Contract to Make a Will
    • Use
    • Enforceability
    • Revocation
    • See Conrad Teitell, Heather J. Rhoades & Brianna L. Marquis, Contracts to Make a Will, Trusts & Estates Magazine, Sept. 2021 (“Can a donor make an irrevocable charitable bequest by a contract to make a will? Here’s an overview of estate plans involving contracts to make a will, including a discussion of enforceability and use; revocation; cohabitation agreements; naming rights; and oral contracts.”).
  • Probate
    • Uniform Probate Code
    • Probate Avoidance
    • Accounting by Executor
    • Objection to Executor’s Accounting

[Updated 11/6/2021]

  1. SCPA 103(48). ↩