New York Probate Lawyer Blog

Estate settlement in New York, including Westchester and Suffolk counties, requires a consideration of many issues. A post in the New York Probate Lawyer Blog on December 6, 2011 talked about a number of estate tax issues that should be considered, including the current $5 million federal tax exemption and "portability" of the unused exemption between spouses.

Executors and Administrators have the fiduciary responsibility of calculating and preparing both Federal and New York State estate taxes, as well as fiduciary estate income taxes. Once an estate comes into existence it is like an ongoing business. Assets must be determined and collected and liabilities and debts need to be paid or resolved. Essentially, the fair market value of the assets owned by a decedent at death will form the basis for determining the estate tax obligation. The income and expenses generated by the estate during the course of Estate Administration are factors to be considered in determining the estate's annual income tax liability.

Estate taxes are typically due to be paid nine (9) months after the decedent's date of death. Fiduciary income tax returns are usually due in April. Extensions for the filing of estate tax and income tax returns are routinely obtained but estimated payments on account of the taxes due must be timely made or interest and possibly penalties can be imposed.

The problem faced by many fiduciaries is obtaining enough information about assets, income, expenses and liabilities in a relatively short period of time so that accurate returns can be prepared and appropriate estimated payments can be made. This process can be complicated where the decedent's assets and income are not easily discovered or are complicated by issues of valuation or litigation regarding ownership. Nassau estate attorneys, like estate attorneys throughout New York, work closely with executors, administrators and trustees to obtain necessary information and plan for the filing and payment of these taxes.

An example of such problems was recently reported with regard to the estate of Brooke Astor. Many articles have been written concerning the estate of socialite Brooke Astor who died on August 13, 2007 and whose son was convicted of stealing her assets. In an article written by William P. Barrett which appeared in Forbes on December 7, 2011, it was reported that the IRS is seeking upwards of $62 million in taxes from the estate, which includes millions of dollars in assessed penalties. The tax disputes seem to concern charitable deductions that the IRS is refusing to recognize along with the failure of the decedent to file and pay certain gift taxes during her lifetime.

It is not uncommon for actions and failures to act by a decedent during life to have a dramatic effect upon estate settlement and, ultimately, estate beneficiaries. Suppose a decedent due to illness or neglect failed to file or pay income or gift taxes during the years prior to death. The estate fiduciaries have a fiduciary obligation to prepare these old and overdue tax returns and pay the tax liability along with any interest and penalty charges. Such payments may have a large impact upon the amount of monies that pass under a Last Will or by intestacy to the decedent's beneficiaries. The advice and counsel of estate attorneys is essential when dealing with these matters.

Continue reading "New York Estate Administration Must Always Consider Tax Issues" »

The Estate Tax continues to generate many articles and much analysis. As previously reported in the New York Probate Lawyer Blog, the changes in the Federal Estate Tax that occurred in December 2010 resulted in increasing the Federal estate tax exemption to $5 million dollars for 2010, 2011 and 2012. The Federal gift tax exemption for 2010 was $1 million but will increase to $5 million for 2011 and 2012. Also, during these years, the 100% marital deduction will remain and the new legislation introduces the new concept of "portability" which allows a decedent to transfer his or her unused federal estate tax exemption to a surviving spouse.

While these new tax provisions may protect more estates from potential federal estate taxes, tremendous uncertainty still exists. The new estate tax provisions expire at the end of 2012 after which the exemption shrinks to $1 million. Adding to the complexity is the New York State estate tax which currently has an exemption of only $1 million. Thus, if a decedent's estate transferred more than $1 million to a non-spouse, the estate may be subject to New York estate tax. For example, if a decedent's estate was $2,000,000 and was inherited by children, the $5,000,000 federal exemption would result in no federal estate tax. However, a $2,000,000 estate would result in a $99,600.00 New York estate tax.

Consulting with a New York estate planning attorney is important both to plan an estate for the future and to help with estate settlement and administration following a death. One important aspect of post-death planning can involve the use of the new "portability" provision. A key aspect of preserving the unused portion of a decedent's federal exemption is to timely file a Federal estate tax return (Form 706). In a recent article in Forbes by Robertson Williams, dated November 30, 2011,The Coming Flood of Estate Tax Returns, the author notes that many tax returns may be filed for the sole purpose of preserving the portable exemption from one spouse to the other.

Estate Executors and Administrators have the fiduciary responsibility of collecting estate assets, paying debts and expenses, and preparing and filing estate tax returns. In view of the complexity of the tax laws, the job facing the fiduciary is not easy. Consultation with probate and estate settlement lawyers and other tax advisors is essential to protect estate assets and take advantage of all deductions and exemptions.

Continue reading "Estate Tax in New York Remains Uncertain" »

Market Watch recently published some estate tax tips for married couples. New York City estate planning attorneys have been dealing with the changes to the estate tax and gift tax limits since they were implemented late last year.

As we reported in December on our New York Probate Lawyer Blog, Congress set the estate tax exclusion at $5 million and the lifetime gift-tax limit at $5 million. The tax exemption ends at the end of 2012. But for now, couples enjoy tax-free giving power and the vast majority of the nation's estates may pass to heirs tax free.

Unlimited Marital Deduction: For spouses who are U.S. citizens, there is no limit to the tax-free inheritance they can receive. However, it does not negate the need for estate planning in New York: Leaving your spouse a large estate could mean that he or she exceeds the limits, which would subject the estate to excessive taxation upon his or her death.

Portable Estate Tax Exemption: This year and next (2011 and 2012), you may direct the executor of your estate to leave any unused federal estate tax exemption to your surviving spouse. This includes your $5 million exemption and means a spouse could have a $10 million exemption for estates distributed this year or next. Unless Congress acts, these portable exemptions are set to expire at the end of next year.

Donate to IRS-Approved Charities: Giving to IRS-approved charities as part of a comprehensive estate plan is a great way to get your estate down to the $5 million estate-tax cap -- or $10 million for couples with both available exemptions.

Give Gifts to Relatives: The annual gift-tax exclusion is $13,000, which can be given without reducing your lifetime $5 million federal gift-tax exemption. If you had two children and four grandchildren, you and your spouse could each give $13,000 to each one, or $156,000 tax free for 2011. You could do the same thing next year and reduce your taxable estate by $312,0000.

Pay School Expenses or Medical Bills for Relatives: Aside from room and board, you can give unlimited amounts for these purposes,without reducing your gift-tax or estate-tax exemption. Payments must be made directly to the school or medical provider.

Give Away Appreciating Assets: Use your $5 million gift-tax limit to give away appreciating assets now -- while they are worth less than they will be at the time of your passing.

Use an Irrevocable Life Insurance Trust: While life insurance proceeds are usually income-tax free, they are included in your estate for estate-tax purposes. Policies held in irrevocable trust are free from estate-tax exposure. This is particularly critical for single people -- married people can pass the proceeds to a spouse tax free using the marital deduction privilege (though they may then face taxation upon the death of a spouse). Such trusts are a terrific way to cover estate taxes upon your death.

Continue reading "New York Estate Planning can Reduce Couple's Tax Exposure" »

The gift-tax cap could increase to $10 million -- up from the current limit of $2 million -- under the tax-cut bill Congress is debating this week, Bloomberg News reported.

Those worried about estate taxes should consult an experienced probate attorney to establish a comprehensive New York estate plan. One of the reasons such planning can be so crucial is the advantages of the gift-tax exemption, which can permit you to distribute thousands of dollars to your children and other heirs tax free. Such giving not only allows you to give loved ones a larger inheritance while saving thousands in taxes, it gives you an opportunity to see the difference your money is making during your lifetime. Making a promise to tackle your estate planning as part of your New Year's resolutions can bring the peace of mind that comes with knowing your life's work will benefit your children, not the government tax collectors.

Under the proposal, a U.S. taxpayer's lifetime gift-tax exclusion will jump to $5 million in 2011, up from the current $1 million. Each parent could donate to a child, moving as much as $10 million in cash, stocks or portions of a family business outside a couple's estate. The window is only slated to last for two years, so those interested should begin planning as soon as possible by speaking with a qualified attorney.

The lifetime gift-tax limit has been $1 million since 2002. In addition to the new lifetime gift-tax exclusion of $5 million, couples can continue to give up to $26,000 a year tax free to each beneficiary ($13,000 for a single person).

Continue reading "New York Gift-Tax Cap could Increase to as much as $10 Million under Tax Proposal" »

Those focused on what the government might do with the estate tax next year are forgetting about the likelihood of an increase in the gift tax.

Estate planning attorneys in New York City and elsewhere are helping clients disperse portions of their estate this year to take advantage of the historically low 35 percent gift-tax rate, Bloomberg News reports. As we reported recently on our New York Probate Lawyer Blog, the estate tax hiatus will last through the end of the year but could return next year with a rate as high as 55 percent on estates valued at more than $1 million.

Changes to the gift tax could come as lawmakers debate tinkering with the estate tax; more plans than can be counted are currently floating through Congress.

In response, some estate planners are assisting clients with making gifts while they are still alive. Bloomberg News uses the example of an 84-year-old widow who gathered her children at her lawyer's office and told them she was distributing $20 million as a Christmas gift.

The woman said she didn't want anyone wishing she were dead; and the historically low 35 percent gift tax is lower than the 55 percent estate tax rate that could return as soon as January.

New York Times columnist Paul Krugman has called the Dec. 31 deadline the "Throw Mamma from the Train" law as black humor abounds about wealthy parents having accidents before the estate tax returns with the new year. Taking advantage of the current gift tax rate is a viable alternative to such drastic and unlikely measures.

Historically, the gift tax has been matched to the estate tax to keep the wealthy from giving their money away to avoid the Internal Revenue Service. This year, you can gift up to $13,000 without tax consequences, up to a $1 million lifetime maximum. After that, the current 35 percent gift rate applies.

Continue reading "New York City Estate Planners can assist Clients in Making Distributions via Gift Tax to Avoid Looming Estate Tax Rates" »