The answer to the question “Are gifts made during my lifetime includible in my estate for estate tax purposes?” depends on several factors.

 

Federal

For purposes of the Federal Estate Tax, yes, any taxable gifts you make during your lifetime are includible in your estate. However, this does not necessarily mean that those gifts will ultimately result in an estate tax liability.

In 2019, the basic Federal Estate and Gift Tax exclusion amount for an individual is $11,400,000. This means that any taxable gifts you make during your lifetime that exceeds the annual exclusion for gifts ($15,000 for 2019) will reduce the exclusion amount.

For example, if you die in 2019 owning assets that total $4,000,000 and you gifted $6,000,000 during your lifetime then the combined total of gifted assets and current assets (i.e., $10,000,000) will be under the $11,400,000 basic Federal Estate and Gift Tax exclusion and there will not be any federal tax liability owed.

You should speak with an estate administration attorney who is well versed with tax law to determine if it will be necessary or beneficial to file a Federal Estate Tax return (IRS Form 706), even if there is no tax liability owed.

 

New York State

There is no gift tax in New York State, however certain taxable gifts made by New York residents within three (3) years of death up through December 31, 2025 will be subject to a “clawback” provision of the New York Tax Law. This means that those taxable gifts will be included in the decedent’s taxable estate.

As of January 1, 2019, the New York estate tax exclusion is $5,740,000, which means that if you own assets worth less than $5,740,000 then there is no estate tax liability or a need to file a New York State Estate Tax return (NYS Form ET-706).

If you have made certain taxable gifts within three years of your death, then those gifts are considered part of the estate for estate tax purposes.

For example, if you die in 2019 owning assets that total $4,000,000 and you made taxable gifts of $6,000,000 in 2017, then you will have a taxable estate of $10,000,000 which will result in New York State Estate Tax liability.

 

It is important to speak with an experienced Estate Planning attorney who can advise on strategies to reduce and sometimes even eliminate estate tax liability before making significant gifts of your assets.

Sometimes when a loved one passes away, an individual who believes he or she inherited assets from the decedent will be told at a bank or financial institution that they will need “Letters Testamentary” in order to collect those assets. The question most people have at that point is “What are Letters Testamentary?”

 

Letters Testamentary is the name for a document issued by the Surrogate’s Court that permits the Executor of an Estate to act on behalf of the estate of a person who died with a Will. The person who is nominated as the Executor under the Will has no authority to act until the Will is probated by the Surrogate’s Court and Letters Testamentary are issued by the court.

 

In order to obtain Letters Testamentary, an interested party (typically the nominated executor under the Will) will need to petition the Surrogate’s Court and provide pertinent information regarding the decedent, relevant parties (i.e., the spouse, children, etc.) and the decedent’s assets.

 

Letters Testamentary can provide the Executor (or Co-Executors) with full authorities allowed under the terms of the Will and the law, or they can be restricted at the court’s discretion. Typically if the court grants “full” Letters Testamentary, the Executor will be authorized to handle all the affairs of the estate pursuant to the terms of the Will.

 

The Executor will be able to use the Letters Testamentary to handle the affairs of the estate, such as obtain a necessary tax identification number for the Estate, collect estate assets, establish estate bank or brokerage accounts, retitle or sell property, pay for administrative expenses, pay debts and liabilities of the decedent subject to the terms of the Will, and distribute the assets of the estate to the beneficiaries according to the Will, among other things.

 

Although Letters Testamentary will allow you to handle the affairs of the estate, you will not be able to use the Letters Testamentary to collect assets that passed by operation of law outside of the estate. A common example of this is when a decedent had a bank account that was held jointly with rights of survivorship with another person, the funds in that account automatically pass to the surviving joint owner (regardless of what the Will states) and therefore the Executor will not have authority to collect those assets despite having the Letters Testamentary issued to him/her.

The short, but perhaps not so obvious answer to the question “Who has the right to determine what happens to my body when I die?” is, YOU – provided you planned ahead of time.

 

We advise many of our clients about the benefits of planning ahead for the disposition of their remains. Under New York State law you can designate in writing that a specific individual, as well as successors, will have the right to control the disposition of your remains. This will allow you to select someone you trust to carry out your wishes. The writing must substantially conform to a statutory form and must be signed and dated by you and the agent, and it must be properly witnessed.

 

If you do not have a written instrument that designates a particular agent to control the disposition of your remains, then only those individuals who have priority under the law can determine what to do with your remains. Absent the written instrument, the priority under the law is as follows:

 

  1. Your surviving spouse;
  2. Your surviving domestic partner;
  3. Any of your surviving children 18 years old or older;
  4. A guardian appointed pursuant to Article 17A of the Surrogate’s Court Procedure Act, or Article 81 of the Mental Hygiene Law;
  5. Any person 18 years of age or older who would be entitled to share in your estate under the laws of intestacy (i.e. your heirs) with the person closest in relationship having the highest priority;
  6. A duly appointed fiduciary of your estate;
  7. A close friend or relative who is familiar with your wishes related to the disposition of your remains
  8. A chief fiscal officer of a county or public administrator duly appointed

 

Although the statute provides a framework of individuals who can control the disposition of your remains, the individuals listed may not be the best person suited to make the decision about the disposition of your remains.

 

Another common planning strategy to help you ensure your wishes are honored after your death is to preplan and prepay your funeral. The difference between a “preplan” and a “prepaid” funeral is that you can “preplan” your funeral without paying now if the funeral home agrees to it. Once you’ve selected a funeral home, you can discuss your wishes with the funeral director who will keep the plan on file until it is needed. You will have to make arrangements for the payment of the funeral after your death.

 

You can also prepay the funeral. For this option, you can either enter into an agreement with the funeral home, and the money will be held in the name of the funeral home as trustee for you. Or, you can deposit the money in a bank account for the benefit of the funeral home.

 

No matter what your wishes may be, it is important that you have a plan in place to ensure they are honored, and you have designated the right individuals to carry them out.

The practical answer to the question “Do I need a death certificate to probate a will?” is yes. In a practical sense, the Surrogate’s Court generally requires a death certificate in order to probate a Will, as it needs the certificate to prove that the Testator is deceased, and that the court has jurisdiction over the matter, among other things.

 

It may seem obvious, but the death certificate is one of the most important documents in an estate proceeding, and without it, there will be significant roadblocks to probating the Will or obtaining Letters of Administration (when the decedent dies without a Last Will and Testament).

 

The need for a death certificate can oftentimes cause delay in commencing an estate proceeding such as an Administration Proceeding or a Probate Proceeding. Usually, if there is a funeral home handling the disposition of remains of the decedent, the funeral home obtains certified copies of the death certificate and will provide them as requested. It is prudent to obtain a number of death certificates from the funeral home as they will be needed for the estate proceeding, the estate administration, and/or to collect assets that passed by operation of law from financial institutions.

 

Another option to obtain death certificates is to order them through the New York State Department of Health, or if the decedent was a New York City resident, the New York City Department of Vital Records. Only certain individuals are eligible to obtain a death certificate copy, such as a spouse, parent, child or sibling of the deceased, or other persons who have documented a lawful right or claim, documented medical need, or have a New York State Court Order directing the release of the death certificate to them.

 

Sometimes, even when a petitioner has a death certificate, there may be issues with the information contained in the death certificate that can also create issues. For example, there could be a typographical error or incorrect information about the decedent on the death certificate. These types of errors can occur due to an inadvertent error when the information about the decedent was being transmitted or transcribed, or if the person providing the information about the decedent gives inaccurate information.

 

These types of issues will need to be addressed either in the form of a corrected death certificate or, if it is acceptable to the court, an affidavit addressing and explaining the issue.

 

In other cases, where the decedent, who was a New York domiciliary, dies out of state, the court may require an affidavit confirming that the decedent was a New York domiciliary and explaining why the decedent was out of state. This happens typically when the decedent was a “snowbird” and spends part of the year in another state.

 

No matter what issues you may be presented with, it is important to have guidance from an experienced law firm when commencing an estate proceeding.

The new federal tax law entitled, “An Act To provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018,” which is commonly referred to as the Tax Cuts and Jobs Act of 2017 (hereinafter “TCJA of 2017”), has left many people questioning the amount of the Federal Estate and Gift Tax Exclusion.

The new law basically doubles the federal estate and gift tax exclusion for estates of decedents dying and gifts made after December 31, 2017 and before January 1, 2026, to $11,000,000 (or $22,000,000 for a married couple), subject to inflation. Generally, this means that an individual can transfer up to $11,000,000 in a lifetime and at death combined without incurring a federal estate or gift tax.

Prior to the new law, the federal estate and lifetime gift tax exclusion was $5,490,000 for an individual dying in 2017 and $10,980,000 for a married couple.

Currently, the New York State Estate Tax exemption is $5,250,000 until December 31, 2018, when it is set to coincide with the federal exemption by January 2019. It is unclear whether the New York State Estate Tax exemption will increase in January 2019 to meet the new federal estate and gift tax exclusion given the significant increase in the federal exemption.

If you have any questions about these new tax figures please contact us.

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

 

If the nominated Executor in your Last Will and Testament dies, then you should meet with an experienced estate planning attorney to review and possibly update your will to account for the loss. If you do not update your Will, then, upon your death, the court could appoint the successor executor(s) that are nominated in your will.

If you did not nominate a successor executor, or if the successor executor is not able or willing to serve as executor, then the court could appoint a fiduciary known as an “Administrator c.t.a.”.

The Administrator c.t.a. acts like an executor in that once appointed he or she is responsible for marshalling the estate assets, paying the administrative expenses and debts of the estate and administering the estate assets pursuant to the terms of the will.

New York State law states when Letters of Administration c.t.a. are issued by the appropriate Surrogate’s Court and to whom they can be issued.

According to the law, the persons who can be appointed include

  1. The sole beneficiary of the estate;
  2. A residuary beneficiary of the estate; or
  3. Other person(s) who are interested in the estate.

If the Court cannot appoint someone who is otherwise eligible to act as fiduciary, then it will then appoint the Public Administrator of the county where the decedent resided. The Public Administrator is a government official in each county who administers estates when there are no other authorized persons available to do so.

Even though the law clearly states the priority of who could serve as Administrator c.t.a., it is common for situations to arise where the pending appointment of an Administrator c.t.a. results in estate litigation in the Surrogate’s Court.

It is important to continuously update your estate plan to ensure that your wishes are honored and potential estate litigation is avoided.

We recommend that our clients meet with our experienced attorneys to review their estate plan upon the passing of an individual named in their will or trust.

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

 

In the simplest terms, a Grantor Trust is a trust that authorizes a grantor (the person who set up the trust) to retain certain powers with respect to the property transferred to the trust and the trust administration.  These powers can include the power to revoke, amend, or terminate the trust, and the power to control some or all of the property in the trust in some way.

The grantor will report items of income, deduction, and credit associated with the trust property on his or her own individual income tax return because the trust is not an independent taxpayer.

A grantor trust can either have its own Tax Identification Number or use the Social Security Number of the grantor.

When the trust uses the social security number of the grantor, then the grantor will usually report the income, deductions and credits associated with the trust property on his or her individual income tax return.

If the trust has its own Tax Identification Number, then the trustee should file a fiduciary income tax return on the IRS Form 1041.

There is an attachment to the form where the trustee would report information about the grantor as well as the income, deductions and credits associated with the trust property. The trustee will give this information to the grantor to report on his or her own individual income tax return.

While grantor trusts are important parts of many strategies used in estate planning, they are complicated. It’s vital for everyone to understand the distinctions between grantor and non-grantor trusts in order to make informed decisions while establishing their estate plan.

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

Medicare recipients who reside in New York should keep an eye out for their new Medicare card.

In an effort to prevent fraud, and fight identity theft, the federal government is issuing new Medicare cards to all Medicare beneficiaries that will no longer have Social Security numbers on them. The federal government began mailing the new Medicare cards to more than 59 million Americans in April 2018, and New York beneficiaries of Medicare should be receiving their new cards this month according to Medicare.gov.

The process should be completed by April 2019.

In the meantime, if you are a Medicare beneficiary, then you should keep track of when your new card will arrive and contact Medicare if you don’t receive it.

Now that Medicare has begun mailing cards to New Yorkers, it can take up to a month to receive the card. If you did not receive a card by the time the government is finished mailing the cards to New Yorkers, then you should contact Medicare at 1-800-MEDICARE (633-4227), or 1-877-486-2048 for TTY users, as soon as possible.

If your mailing address is not up to date, call 800-772-1213, visit www.ssa.gov, or go to a local Social Security office to update it.

You should continue to use the old card until you have the new card. If you have a Medicare Advantage plan, the Medicare Advantage Plan ID card is your main card. It is recommended that you keep your new card accessible since your doctor may want to see your new Medicare card as well.

BEWARE – Phone scammers are using the introduction of the new cards as an opportunity to separate Medicare beneficiaries from their money. The cards are free and you don’t need to do anything to receive your card. So, if you receive a call requiring payment before the card can be issued to you hang up the phone and then report the scam to Medicare.

To check the status of card mailing and for more information please visit https://www.medicare.gov/newcard/.


Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

Although the month of May is typically known for its celebration of Cinco de Mayo, Mother’s Day, the Kentucky Derby, and Memorial Day, May is also known as “National Elder Law Month.”

In 1963, President John F. Kennedy declared May to be Senior Citizens Month to honor those who are 65 and older. Since then Presidents have proclaimed May to be a month to show support for older Americans.  President Jimmy Carter changed the name in 1980 to Older Americans Month and the National Academy of Elder Law Attorneys supports this annual proclamation by declaring the month of May to be National Elder Law Month.

During the month of May, Elder Law attorneys across the country educate the public about legal options in dealing with long-term and health-care planning, special-needs planning, Medicaid eligibility, elder abuse, fraud and other important issues.

Many people associate Elder Law with drafting wills and trusts, but there is much more to the practice than drafting legal documents. The practice of Elder Law and Special Needs Planning are unique and important areas of law that involve advocating for and counseling seniors, and individuals with special needs and their families with a variety of legal issues. These legal issues range from estate planning to long-term care issues, asset protection, taxation, guardianship, and navigating through various government benefits programs.

We as a society tend to delay in our planning for the future, and the area of planning for long-term care is no exception. By working with an Elder Law Attorney to plan for the future, seniors and individuals with special needs and their families can ensure that they obtain the best quality of life, while preserving family assets for as long as possible.

We at Russo Law Group, P.C. are passionate about our roles as advocates for senior citizens and individuals with special needs, which is why we have dedicated a significant part of our practice to Elder Law and Special Needs Planning.

We invite you to take advantage of our comprehensive website as well as free seminars and webinars to learn more about the areas of Elder Law and Special Needs Planning.

Please contact us with questions or comments.

Eric J. Einhart

Eric J. Einhart
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717