New York Probate Lawyer Blog

October 12, 2010

New York Guardianship Law Provides For Reasonable Compensation of the Guardian

New York Guardianship law, as set forth in Article 81 of the Mental Hygiene Law, contains many provisions delineating such matters as procedural requirements and Guardianship powers. Among these many items is an important section concerning Compensation of Guardian. Section 81.28 of the Mental Hygiene Law provides, in part, that “The Court shall establish, and may from time to time modify, a plan for the reasonable compensation of the guardian or guardians.” Such compensation is usually paid from the Incapacitated Person’s assets.

While the statutory language leaves the compensation issue open to determination in each Guardianship case, the Courts typically refer to the statutory commission provisions for Trustees, Executors and Administrators contained in the New York Surrogate’s Court Procedure Act for a basic standard in calculating and awarding Guardian’s compensation. For example, Section 2307 of the Surrogate’s Court Procedure Act provides the following basic schedule for the award of Executor’s and Administrator’s Commissions:

(a) For receiving and paying out all sums of money not exceeding $100,000 at the rate of 5 percent.
(b) For receiving and paying out any additional sums not exceeding $200,000 at the rate of 4 percent.
(c) For receiving and paying out any additional sums not exceeding $700,000 at the rate of 3 percent.
(d) For receiving and paying out any additional sums not exceeding $4,000,000 at the rate of 2 ½ percent.
(e) For receiving and paying out all sums above $5,000,000 at the rate of 2 percent.

Section 81.28 allows the Court in its discretion to modify a Guardian’s compensation despite the generally accepted parameters and, in appropriate cases, to deny the Guardian payment of fees, particularly where the Court finds that the Guardian did not satisfactorily perform his or her fiduciary duties. Such was the case in In Re Conners, 881 NYS2nd 613 (Supreme Court Kings County 2009), where Judge Betsy Barros, denied compensation to the attorney/Guardian, stating in part:

In this matter, the guardian failed to preserve his
ward’s assets, failed to preserve her trust, failed to
file an initial report, filed his bond some five months
after the order and judgment was entered, and failed to
obtain his commission. When the windfall of executor
failure to preserve his ward’s trust, is coupled with the
trustee commissions already obtained, this Court finds
that yet a third commission to Mr. Connors would be an
unjustified reward for his services as guardian.

As pointed out by the Court, a Guardian owes an individual duty of loyalty to the Incapacitated Person and should not be compensated if this fiduciary duty is breached.

Interestingly, the issue of Guardianship compensation may arise when a Guardianship petition is dismissed after an appeal following the appointment of a Guardian. In such situations, the Court must determine which party is responsible to pay the Guardian for the services rendered prior to the dismissal. If the Court finds that the Guardianship petition was not brought in good faith, it may require the petitioner to pay the Guardian’s compensation. For example, in Matter of Isadora, 773 NYS2d 96 (AD2d 2004), the Appellate Division determined that the lower Court should not have revoked a power of attorney and health care proxy and appointed a Guardian. In reversing the Judgment, the Court directed that the Guardian’s compensation be paid by the petitioner.

October 7, 2010

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

by Jules M. Haas

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.

October 6, 2010

New York Law Concerns Disposition of a Decedent’s Remains

by Jules M. Haas

There are many considerations and activities relating to the settlement of a decedent’s estate. These items include the location and safekeeping of a decedent’s Last Will, the filing with the Surrogate’s Court of a Probate or Administration proceeding, the determination of next of kin, locating and collecting a decedent’s assets and the ultimate accounting and distribution of the estate to beneficiaries. However, before any of these activities take place, the decedent’s remains must be cared for and disposed of.

In most cases, family members, such as a spouse or children, work together to organize funeral and burial services. However, this is not always the case as was recently shown with respect to the dispute over the body of baseball legend Ted Williams whose remains were cryogenically frozen.

New York Public Health Law Section 4201 sets forth the priority of the persons who have the “right to control the disposition of the remains” of a decedent. This priority begins with a person designated by the decedent in a writing signed as provided for by the statute. The statute goes on to list in descending order the decedent’s surviving spouse, domestic partner, children, the decedent’s parents, the decedent’s siblings and additional specified persons such as a Court appointed Guardian. Additional provisions address directions made in a Last Will.

New York Law also recognizes that next of kin may be entitled to damages against persons who improperly interfere with their right of possession to a decedent’s remains or who improperly deal with the body. A recent case demonstrates how a fairly routine burial can turn into a distressing and bizarre incident. In Shipley v. City of New York, Index No. 101114/06, the Appellate Division, Second Department, was presented with a motion to dismiss a complaint brought by the parents of a 17 year old who was killed in an automobile accident. After an autopsy was performed by the Medical Examiner the decedent’s body was released to the parents for the funeral and burial. More than two months after the burial it was discovered that the decedent’s brain had been retained in the Medical Examiner’s office. The decedent’s brain was then returned to the family who performed a second funeral. The Court refused to dismiss the parent’s damage claim against the City finding that a cause of action existed.

September 30, 2010

Whether Guardianships or Trusts, Special Needs Children Require Comprehensive Estate Planning in New York

by Jules M. Haas

The Times Herald recently published an article on caring for a child with special needs after your death.

Parents or guardians of special-needs children, or adult children living at home, need to plan for the eventuality of the child’s care after their passing. A New York City probate lawyer or guardianship attorney can assist you by outlining the various options. Among the variables and factors for consideration are the size of the estate left behind and the person’s needs.

An Article 81 Guardianship can permit you or someone else to care for an adult with special needs and empower you to make the decisions necessary to assist with day-to-day life, including medical and health care needs.

Estate planning becomes particularly important, both to make sure that available assets are left to care for a loved one with special needs and to make sure the appropriate safeguards are in place for the management of those funds for the best interest of the child.

In many cases, you must also concern yourself with not making a person with special needs ineligible for federal medical care and other benefits. Failure to establish a Special Needs Trust or other vehicle for life insurance proceeds and other inheritance can have devastating consequences. A Special Needs Trust is a legal entity, which can manage and disburse money to a child with disabilities, without making the child ineligible for federal benefits, such as Medicaid.

September 28, 2010

Estate Tax Just One Reason to Consult a New York City Probate Lawyer for Estate Planning

by Jules M. Haas

The resurgence of the estate tax is expected to hit a lot of middle class families and others who fail to seek adequate estate planning in New York and elsewhere, according to MarketWatch.

Historically, it has been thought that the tax affects a small number of tax payers — less than half of 1 percent is the figure often cited. But that depends on the exemption limit. The tax disappeared this year after being in place on estates valued at more than $3.5 million in 2009. But it is due to return next year, and would hit most estates valued at more than $1 million with a tax rate of up to 55 percent.

This frequently devastates an estate, particularly those involving a family business or farm; often assets have to be liquidated just to satisfy the tax, thereby destroying wealth that it took a lifetime to build.

Tragically, as many as half off all estates are not even governed by a proper Will, let alone a comprehensive estate plan.

What exactly will happen with the estate tax remains unclear. One bipartisan effort has an exemption of $5 million and a 35 percent rate to be phased in over a decade. But, as we reported previously on our New York Probate Lawyer Blog, there are many tax concerns that come with settling an estate — regardless of the status of the so-called federal “death tax.”

Capital gains taxes on stock purchases and property appreciation are just a few commonly overlooked tax obligations. Having spent decades building an estate, it is tragic to see a lifetime of hard work and dedication given over to the tax man because of a lack of basic planning.

So many of our clients wonder why they waited so long to get started. Knowing that your affairs are in order is a huge burden lifted. Knowing that your loved ones will be taken care of after you are gone can allow you to go forth and enjoy life. If your estate is in disarray because of procrastination or outdated estate plans, please call my office for a free and confidential consultation to discuss your needs.

September 24, 2010

A New York Fiduciary Accounting Provides Disclosure Of Financial Activities

by Jules M. Haas

A New York Fiduciary is generally required to provide a full accounting of his or her financial transactions. Fiduciaries include estate Executors and Administrators, Trustees and Guardians of incapacitated persons. The information set forth in the accounting can be simple or complex depending upon the nature of the estate or trust that is the subject of the accounting.

The Surrogate’s Court and the other Courts that have jurisdiction over the matters that are the subject of the accounting are guided by standard rules regarding the accounting process. For example, Article 22 of the Surrogate’s Court Procedure Act contains numerous sections that delineate the accounting process. Surrogate’s Court Official Form No. 12 provides the standard format for an “Account of Executors and Administrators”. Despite the variety of fiduciaries that are subject to these rules, in virtually all instances the accountings require that the fiduciary describe in detail: (i) the assets or items that were received: (ii) the payments or distributions that were made; and (iii) the balance of assets that remain on hand. The information contained in the numerous accounting Schedules can be extensive. Accounting for many types of equity holdings such as stocks and bonds particularly where sales, stock splits, mergers or other transactions occur can result in very lengthly and quite complex transaction descriptions.

Accountings will disclose additional financial information including a computation of fiduciary commissions, and the payment of estate and income taxes. The important aspect of the accounting process is that the beneficiaries of the estate or trust are entitled to receive and review the accounting. Any objectionable items can be brought to the attention of the Court overseeing the accounting process and rectified if appropriate. The accounting process is also helpful to the fiduciary who is given the opportunity to disclose all of his or her activities and make distributions of assets and obtain an approval of his or her actions.

Accountings can be informal, meaning that the parties can all agree and accept the accounting without formal Court proceedings. On the other hand, formal accounting proceedings require that the accounting be filed with the Court and approved or finalized through formal Court proceedings including discovery and hearings or a trial.

September 22, 2010

A New York Spouse May Inherit Despite Being Separated For Decades

by Jules M. Haas

The application of New York inheritance and estate laws and procedure are often seen within the variety of circumstances that effect individual lives. A recent article posted at MSNBC.com on September 22, 2010 talked about the World’s Oldest Man who just celebrated his 114th birthday. The article stated that Walter Breuning lives in a retirement home in Great Falls, Montana and that his wife died in 1957 and that he had no children. Given Mr. Breuning’s longevity, a similarly situated New Yorker without a Last Will might subject his estate to hardship in order locate surviving next of kin, (“distributees”), that would inherit the intestate estate. Kinship proceedings and the application of New York intestate statutes often result in long and costly legal proceedings before estate settlement.

The effect of the lapse of time had an interesting impact on intestate inheritance in a New York case entitled, In Re Morris, 893 NYS 2d 161 (A.D. 2nd Dept. 2010). In Morris, the decedent, Phyllis Morris, had married in 1971 and the couple separated in 1974 but never divorced. When Phyllis died in 2006, her husband petitioned the Court to be appointed as Administrator of her estate. Phyllis’ two daughters objected to his appointment and claimed that the husband was disqualified as surviving spouse under Estates, Powers and Trusts Law Section 5-1.2(a)(5) for abandoning Phyllis and Section 5-1.2 (a)(6) for failing to support her. The Appellate Court upheld the Surrogate’s decision that there was no abandonment since the daughters did not show that the separation was not consensual and that the daughters did not demonstrate an obligation by the husband to support the decedent. Thus, the husband who had been separated from the decedent over 30 years, was still entitled to be appointed as Administrator and was not disqualified as surviving spouse.

Situations such as those involving Mr. Breuning and Mrs. Morris demonstrate how estate laws and Surrogate’s Court procedure can eventually impact a person’s estate and the inheritance rights of beneficiaries following decades of inattention to potential consequences.

September 20, 2010

Fight over Benihana Steakhouse Chain Highlights need for Comprehensive Estate Planning

by Jules M. Haas

A probate court ruling has granted control of a family trust to the third wife of late Benihana founder Rocky Aoki, which could ultimately determine the fate of the Japanese steakhouse company, the New York Post reported.

New York City probate attorneys and estate planning lawyers are frequently called to assist in planning or administering estates that include a family business. The advantages of proper estate planning are many and may include trusts that bypass the probate process, as well as proper planning for the payment of taxes without forcing the liquidation or sale of a family business. The presence of multiple former spouses, and/or children, may also complicate the administration of an estate. But proper planning can go a long way toward ensuring that your wishes are followed after your death and that an estate’s administration is not subjected to long delays or excessive costs involving litigation.

The two-year court fight has resulted in Rocky’s third wife and widow being granted power over the trust that controls 38 percent of the steakhouse chain. The trust had been in the hands of his children, who were using the shares in an attempt to gain board seats and shakeup management, the Post reported. A lawyer for his widow, Keiko Aoki, said he expects her to become sole trustee by the end of the week.

The power shift came last week when a New York probate judge admitted Rocky’s Last Will and Testament for probate, rejecting an attempt by his children to block it. The Will calls for Keiko to be sole trustee of the entity controlling his shares until his children turn 45. Shares of Benihana were trading on the NASDAQ this week at $6.45 and are up 70 percent on the year.

September 17, 2010

The Use Of A New York Health Care Proxy Can Face Complex Issues

by Jules M. Haas

A New York Health Care Proxy can be a valuable part of an estate plan. It provides the means by which someone can appoint an agent to make health care decisions on their behalf in the event they are not able to make these decisions for themselves.

New York Public Health Law sections §2980 through 2994 provide the statutory guidelines for the New York Health Care Proxy. The law defines a “health care proxy” as “a document delegating the authority to make health care decisions, executed in accordance with the statutory requirements.” The statute further provides that “a competent adult may appoint a health care agent…”

The Health Care Proxy form must be “signed and dated by the adult in the presence of two adult witnesses” and “the witnesses must also sign the proxy”.

While the designation of a health care agent seems fairly straight forward, the actual appointment and utilization of the proxy can involve many complications. For example, the statute requires that the person creating the proxy be competent. Quite often, the issue of a person’s competency regarding the execution of a health care proxy is raised in an Article 81 Guardianship Proceeding where questions can arise concerning the validity of the appointment made by the alleged incapacitated person. Section 81.29 of the Mental Hygiene Law allows a Court to “modify, amend or revoke” a previously signed Health Care Proxy if the Court finds that it was made when the person was incapacitated or if there has been a breach of fiduciary duty by the agent. Public Health Law Section 2992 also provides a procedure for the commencement of a Court proceeding to determine issues such as the validity of the proxy or to have the agent removed or to override the agent’s health care decisions.

Complications may also appear when the health care agent attempts to exercise his or her authority on behalf of the appointing person. In Stein v. County of Nassau, 642 F. Supp.2d 135 (E.D. 7/23/09), a Federal District Court was called upon to review various aspects of the proxy statute. As reviewed by Daniel G. Fish in the New York Law Journal on August 20, 2010, Mr. Stein signed a Health Care Proxy and appointed his wife as his agent. When he became ill at home, his wife called for emergency assistance and she instructed that the ambulance to transport Mr. Stein to the hospital where he had been previously treated. Despite Mrs. Stein’s presentation of the signed proxy, the emergency personnel refused her request to go to the hospital she designated and claimed that the Health Care Proxy was not valid outside of a hospital-like setting. The Court found, as part of its decision, that the Health Care Proxy was valid everywhere and not just in a hospital-like setting.

September 14, 2010

New York Nonprofit Settles Estate Lawsuit Involving Former Detroit Piston’s Owner

by Jules M. Haas

A New York nonprofit group is among those that have successfully taken legal action against the estate of Williamson Davidson, the former owner of the Detroit Pistons.

Davidson died last year, leaving an estate valued at $5.5 billion. A total of three lawsuits have been filed in Oakland County Circuit Court and all have been quietly settled, according to the Detroit Free Press.

Best known as the owner of the Detroit Pistons basketball team, Davidson had philanthropic and business interests all over the world.

While some blame the economy for the reported increase in estate challenges, there are frequently very legitimate reasons for challenging the settlement of an estate in probate court. The Areivim Philanthropic group, a New York nonprofit, filed suit claiming Davidson was one of the group’s founders and had reportedly pledged $5 million in support.

Frequently it is the nonprofits that find themselves on the outside looking in for a variety of reasons, such as estate heirs who seek to prevent large estate donations to churches or other charitable organizations. Estate claims and challenges should always be handled by an experienced probate attorney in New York City. The organization settled for an undisclosed amount of money after its claim for the money was not paid by the estate.

In this case, various reports indicate the estate settlement may have been complicated by Davidson’s four marriages, children and step children. Further complicating the issue, is that much of his wealth was tied up in the Detroit Pistons and Guardian Industries, his privately owned glass-making company.

Frequently, a family business must be sold to settle an unplanned estate. Proper estate planning in New York can provide heirs with the means to pay estate taxes and other obligations without liquidating major assets.