Schanker and Hochberg P.C. is a premier Estate Planning law firm. We offer legal services for sophisticated Estate and Gift Tax planning, Decedent Estate Administration and Probate services, Business Succession Planning, Charitable Giving, Special Needs Planning for persons with disabilities, simple Will planning, and all aspects of Elder Law planning including Medicaid planning and applications.
Our website, www.schankerhochberg.com, provides detailed information about our practice and the services we offer. It also is an excellent resource for articles of interest about Estate Planning and Estate and Gift Tax Laws. A copy of each newsletter will always be available on our website.
Estate Planning is so much more than just tax planning. There is a considerable decision-making process. Schanker and Hochberg P.C has over 40 years of experience in counseling clients for their Estate Planning needs.
As always, we encourage feedback from our readers. If there are any topics you wish for us to specifically address or elaborate on, please email me at: firstname.lastname@example.org.
The Future of the Federal Estate Tax
There is much speculation about what the future of the Federal Estate Tax will be. President-Elect Trump has made public statements supporting a full repeal of the current Federal Estate Tax. Furthermore, the Republican party has long been in favor of such a repeal. Our advice, after being in practice for nearly four decades, is that there is no such thing as a crystal ball.
The fact of the matter is that, today, there is only speculation. Estate Tax planning and general Estate Planning must be crafted based on current circumstances. Historical data shows that there has been a Federal Estate Tax for 99 out of the past 100 years. Each time a repeal was sought, the repeal attempt was unsuccessful. The New York Times recently reported that in the last year, 4,918 Federal Estate Tax returns collected approximately $17 billion of Estate Tax. This is real revenue for the government that will be considered in whatever kind of repeal or reformation may occur regarding the Federal Estate Tax.
It is our strong recommendation to regularly review your Estate Plan to ensure that it complies with what the rules and circumstances are today. As soon as any legislation is, in fact, put into effect we will be contacting our clients to advise accordingly.
Schedule a complimentary appointment to review
existing Estate Planning documents in our
Long Island Office, our Manhattan Office, or our
New Jersey office. Contact us at our main
telephone number at (631) 424-5400.
Please see our website: www.schankerhochberg.com
for our location addresses.
(631) 424-5400 • (212) 564-3307
“If you fail to plan, you are planning to fail.”
Benjamin Franklin could not have spoken truer words, in terms of Estate Planning.
A consultation with a qualified and experienced Estate Planning Attorney can identify a myriad of red flags triggering all kinds of expensive, time consuming, and frustrating legal requirements to right the unintended wrongs caused by ‘lack of planning.’
Lack of planning necessitates Guardianship Proceedings. This is so even if there is a well-spouse or custodial biological parents of a special-needs child or of a minor inheriting assets from an Estate Assets become frozen and are unavailable for use, for paying bills, for purchasing groceries, for obtaining basic life needs, or for handling emergencies. In most cases, all access to Guardianship funds is subject to Court approval and the Court appointed Guardian must account to the Court annually. Guardianship proceedings are most commonly triggered when you do not have a comprehensive and statutorily compliant Power of Attorney. Guardianship proceedings are also triggered if a minor inherits assets outright. Do not name a minor as a beneficiary on any accounts/assets without consulting with an Estate Planning Attorney.
You should consider planning considerations for the ‘aging population’ to not only include general Estate Planning considerations but also planning for a possible prolonged need for a higher level of health care, whether it would be in your private home or in a nursing home. Such planning must include assessing the financial reality of paying for such care. Generally, there are only three ways to pay; private pay, long term care insurance or Medicaid. The Medicaid program is not an entitlement and there are strict rules and eligibility requirements. Planning to qualify for Medicaid and preparing for the occasion requires a very specialized attorney who has actual experience; the rules for eligibility are very complicated. We see the most problems arise when clients do not get qualified help and start transferring assets in such a way that causes family members to be otherwise disinherited or that results in unintended negative tax consequences.
Estate Planning and Elder Law Planning is more than planning for disposition of wealth and assets. It is creating a plan to protect assets, plan for the significant cost of potential medical needs, and a plan for incapacity and/or disability. Please schedule your annual review if you are an existing client or a complimentary initial consultation if you are not yet a client to evaluate your needs and your planning.
California, Here We Come!
Schanker and Hochberg, P.C., is pleased to announce that it is expanding its practice area! Our associate attorney, Nick Stratouly, was recently admitted to practice law in California. Schanker and Hochberg, P.C., can now prepare estate planning documents and handle the administration of estates and other legal matters in the states of New York, New Jersey, Florida, and California.
Cover Your (Digital) Ass-ets!
As part of preparing a carefully crafted estate plan, most people want to ensure that they leave their assets, especially sentimental ones, to the proper beneficiary. Unfortunately, one important asset – digital property – is often overlooked; that is a critical mistake in this modern age where our technological assets (social media memories, photo albums, and connections) often hold as much “value” to each of us as any other sentimental item.
Until September 2016, there was no applicable New York law concerning disposition of digital property upon death or incapacity. Online service providers (social media companies, online stores and services, etc.) were frequently reluctant to release information to a person’s fiduciary (Executor, Trustee, or Agent under a Power of Attorney) on the grounds of protecting the user’s privacy. In September 2016, the New York State Legislature revised the Estates, Powers and Trusts Law to include specific provisions for digital property.
The new law, Article 13-A of the Estates, Powers and Trusts Law, sets up a clear framework for how individuals, while alive, can make certain provisions for access to and disposition of digital property upon incapacity or death. Most useful is an “online tool”, which is a release form prepared by the online service provider; if you use one of these “online tools”, you can specify how the provider is to dispose of your digital property upon incapacity or death.
If you fail to utilize one of these “online tools”, or if the provider does not provide such a “tool”, the statute sets forth an alternative procedure which involves granting certain rights and powers to your fiduciary in your Will, Trust, or Power of Attorney. The most important right under the statute is a clear consent to access by your fiduciary. Under the statute, the use of either an “online tool” or a Will, Trust, or Power of Attorney will explicitly override the service provider’s terms-of-service agreement, which is often used by the service provider to stonewall your fiduciary’s accessing your accounts.
Finally, the new statute creates a procedure for the closure of digital accounts after death; unfortunately, there have been many instances where social media and service providers have prevented a grieving family from closing such accounts. Article 13-A remedies that situation and helps protect families during their time of grief.
Given the drastic change in applicable law and the importance of digital property in the modern age, it is crucially important that your documents be updated to include the procedures and directives set forth under Article 13-A. If you are concerned that your documents are not be up-to-date, contact Schanker and Hochberg, P.C., to discuss the necessary changes that need to be made to ensure your digital assets – often some of the most sentimental ones – are properly disposed of and managed upon your death or incapacity.
Extensive Services at Schanker and Hochberg P.C., include:
- Complimentary Initial Consultations for Estate Planning, Probate, and Estate Administration matters (not for matters of Elder Law or Special Needs Planning)
- Complimentary Annual Review meetings for existing clients
- Complimentary Family meetings for existing clients
- Tax alert services for existing clients.
Tax Alert for New Jersey Residents
New Jersey repeals its Estate Tax as of 2018
An important new tax development has occurred which will have a major impact for New Jersey Residents.
New Jersey currently has the lowest threshold for State Estate Taxation in the country at $675,000 per person. Governor Christie has recently signed legislation which will repeal the New Jersey State Estate Tax entirely.
The $675,000 exemption will remain in effect until December 31, 2016. In 2017, the New Jersey Estate Tax Exemption will increase to $2,000,000 per person.
As of January 1, 2018, the New Jersey Estate Tax will be repealed entirely. However, New Jersey will still impose an ‘Inheritance Tax’. The Inheritance Tax is imposed on beneficiaries other than a surviving spouse and lineal descendants (children and grandchildren) of up to 15% of their inheritance.
All New Jersey residents should review their Estate Planning documents in light of this major change in the law. The Trusts that clients have established for the specific purpose of exempting assets from the New Jersey Estate Tax will no longer be necessary. Please contact Schanker and Hochberg for a complimentary appointment to review your Estate Planning documents in light of this significant change in the law.
Moving? Check your Will!
As part of what has become a “series” in our prior newsletters, we have written about the inter-jurisdictional issues that may arise with living wills, health care proxies, and powers of attorney, which are all critical lifetime documents. But what about one of the most critical death-related documents, the Last Will and Testament? If you execute a Will in New York, for instance, but later move to Florida, will your Will be honored in Florida?
Thankfully, all fifty states and the District of Columbia have statutes recognizing the validity of Wills executed outside the state or jurisdiction, provided the Will was executed according to the formalities of the jurisdiction of execution. While that seems like a clear-cut rule, it does not end the inquiry; there are a variety of other issues implicated when a Will conforms to the law of one state but not the other.
For instance, certain provisions that are valid in a Will executed in one state may not be recognized in another. One such provision is a “no contest” or “in terrorem” clause, which can be used to deter a Will contest after death. If a Will is executed in New York, for instance, such clauses are valid, with certain exceptions. In Florida, however, such clauses will not be recognized and should be removed from the document.
Secondly, certain states have different rules of construction to interpret a Will. These rules can apply differently depending on whether the Will was executed within or without the pertinent state and whether the testator (you) declared what state’s law should apply.
Callaghan Parente LLP
‘Of-Counsel’ for Advanced Medicaid and Elder Law Planning
Schanker and Hochberg P.C. has recently established a relationship with the Law Offices of Callaghan Parente LLP to further expand our Elder Law and Medicaid services for our clients. Elder Law issues are prominent and ever-expanding as our aging population continues to grow. Callaghan Parente LLP is a significant resource in that they have extensive experience and resources available for advanced Elder Law and Medicaid needs. We have become a team to provide even more expertise to our clients and prospective clients. Although we remain as two independent law firms, we provide each other with a close and ongoing relationship to maximize our legal expertise for the benefit of all of our clients.
If you execute a New York Will containing a declaration that New York law should apply and you later move to Florida, a Florida court will then have to apply and interpret New York law, even though it may not be well versed in New York law.
Third, failing to update your Will upon moving to a new state can lead to tax issues. While only a handful of states (including New York) have state estate taxes and inheritance taxes, if your Will contains certain planning for a state estate tax that is otherwise rendered unnecessary by moving to a new state, you could be adding unnecessary administrative expenses to your estate.
Worse, though, would be the reverse: If you have no state estate tax planning in your document and then move to a state with a state estate tax, failure to update your Will could create a large and unnecessary state estate tax liability for your loved ones.
Finally, there is an issue because there may be different property laws among certain states. Each property regime has vastly different rules for the disposition of property upon death; these rules need to be accounted for in your Will, lest your loved one be subject to a construction proceeding upon your death.
As stated in the last newsletter, foresight can help avoid a potentially costly situation for you and your family caused by discrepancy among state laws governing Wills. If you have changed your residence since you last executed your Will, it is crucial that you contact Schanker and Hochberg, P.C., to discuss additional planning that can be done to ensure your will conforms to the laws of your new home state.
Welcome to our December Issue!
Our main office is housed in an elegantly restored Victorian structure in the heart of Huntington Village. Here, we welcome you and your family into a relaxing, warm setting where we will work together to improve your circumstances and achieve your goals.
To better serve our clients and their families, we also have convenient office locations in Midtown Manhattan and New Jersey; we also offer our services to clientele in Florida and California.
GENERAL DISCLAIMER: While we hope this newsletter provides useful information, please know that this newsletter does not predict or guarantee the outcome or result in any particular situation and no attorney-client relationship exists or is established as a result of this newsletter or its receipt.
Highlighted S&H Attorney:
R. Mark Hochberg
R. Mark Hochberg received a Bachelor’s degree in Economics from Rutgers University, a law degree from Brooklyn Law School, and a graduate law degree with a concentration in estate planning and taxation from the University of Miami Law School. Mr. Hochberg is a member of the New York, New Jersey, and Florida Bars and is admitted to practice before the United States Tax Court and the Supreme Court of the United States.
Mr. Hochberg has lectured and written extensively on estate planning topics. He was an adjunct instructor at Adelphi University for a ten year period of time and he is a former columnist for Financial World Magazine, where he wrote a monthly column on a wide range of issues dealing with personal and estate planning. Mr. Hochberg has been interviewed in the New York Times and other prominent publications and has written articles for The Tax Advisor and The CPA Journal.
His patient and understanding manner is well-suited for the field he has chosen: “I enjoy working with and helping people. This area of the law is not detached and impersonal as some other specialties are. Estate planning is a cooperative process; it is not confrontational in nature.”
Mr. Hochberg resides in Plainview, New York with his wife, a financial consultant.
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