The Art and Science of Estate Planning

Estate Planning ...

Estate planning is an ongoing and interactive process between attorney and client. The process starts with a detailed analysis of estate planning objectives followed by the formulation of the estate plan best designed for the individual needs of the client. Personal objectives, business relationships and tax consequences are all taken into account in establishing the plan. Consideration is also given to minimizing probate and maximizing the client's control over his or her assets while living. Our client's other financial advisors, such as his or her accountant, financial planner, investment advisor and insurance advisor are brought in to the planning process. In appropriate cases, we explore the creation of family limited partnerships, limited liability companies and other entities.

But, before we suggest any of the sophisticated estate planning strategies available to our clients, we recommend that they..

Starting With the Basics...

In most situations, a Last Will and Testament is the most essential of estate planning documents.  It is the only way you can name a guardian for your minor children and an executor to be responsible for the administration of your estate.  Within the structure of a will, you can provide for the distribution of specific property, cash gifts, real estate, stocks and bonds and most other assets you may own at your death.  Within the will, you can also put property in trust for its long-term administration.

Without a will, property you own at your death will be distributed according to rules provided by the state.  For example, if you die leaving a surviving spouse and two children, your spouse does not, by law, get the whole of your estate.  In New York, your surviving spouse gets only $50,000 and one-half of your net estate and your issue (your children and their descendants) share the rest of the estate.  That's not usually what is intended as a division of a parent's and spouse's estate, yet that is the law.  

What's more, the parts of the estate distributable to minor children must be administered by a court appointed guardian of the minor's property.  While a surviving parent with custody over the child is given preference, being a parent is not automatically sufficient to give a parent legal authority over the child's property.  For a host of reasons, the guardianship of a minor child's property could be denied to a parent.  And, whoever serves as the guardian, once under a court's administration, the use of the money during the minority of the child is severely  restricted.  What happens if you are the surviving parent?  Further, aside from the question of guardianship of the property, who will take care the person of the minor (raise him and make personal decisions for him) if both parents are gone? The solution is a will.  See our Article "Why Do I Need a Will?" for a more detailed discussion.

Beyond Wills...

Along with a will, of course, there are many other techniques available to achieve a comprehensive estate plan.  We provide this comprehensive Estate Planning for our clients, including estate and gift tax planning, revocable and irrevocable trusts and the full range of other estate planning techniques.  For example, are you thinking about transfering a cooperative apartment to a trust?  If so, what kind of trust should you use?  

Once the estate plan is discussed and approved, we begin to draft the appropriate legal documents to bring the plan into reality. Wills and trusts, partnership agreements, shareholder agreements, powers of attorney, living wills, health care proxies, asset transfer documents and any other documentation required are produced, reviewed and executed.

New laws can greatly affect the viability of thses documents, and your attorney should keep current on these law. For example, new changes in Federal laws have made almost all Health Care Proxies obsolete.  These changes have also made some options in the Durable Power of Attorney too risky to elect, in many cases.  And, they also affect very important provisions in the Revocable Trust.  

Most important, once the documentation is drawn, we supervise the actual transfer of assets and the funding of trusts.

Do you want to save your family $400,000?

Do you have "Payable On Death" or other "Totten Trust" Accounts?  Be sure to read our article.

Are you thinking of making a gift to a minor?  Read these articles on the myths of the custodial account: Part I  "Breaking the Myth of the Custodial Account
  Part II  "Minority Trust as a Good Alternative to the UTMA Account"

Special Needs Trusts

When a relative is disabled he or she often needs special help to provide for his or her financial security.  If your relative is on government medical assistance or that possibility must be considered if you were not here, then maintaining the relative's qualification for those benefits can be the most important objective in planning your estate.  Very often the means to accomplish the task is by way of a supplemental needs trust.  We consult with our clients to design an estate plan that takes into account the needs of a disabled relative.  Change in the law:  A new case in New York has made a Supplemental Needs Trust more readily available to the disabled person without having to go through the lengthy and expensive procedures previously required. An SNT may now be self-funded under the right circumstances.

Sometimes a disabled person who is already receiving government benefits becomes the victim of another person's negligence.  In other cases, a person otherwise able-bodied becomes disabled as a result of another person's negligence and needs government assistance to cover long-term medical expenses.  In either case,  to preserve the client's qualification to receive government medical assistance the proceeds of any legal award needs to be placed in a Supplemental Needs Trust. We work with the personal injury attorneys to protect their negligence awards and improve his or her client's quality of life.

Briefs and Insights -

Update on the new tax law changes

Please let us know what areas of the law are important to you so we can emphasize developments in those areas in our Briefs and Insights section. Send us your comments on the Feedback page.
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Law Offices of Stephen C. Silverberg, PLLC
626 Reckson Plaza, West Tower, Sixth Floor
Uniondale, New York  11556
Telephone: (516) 522-2575
Fax: (516) 522-2809
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Copyright © 2007 STEPHEN C. SILVERBERG, PLLC  All rights reserved.
Last modified: December 27, 2007

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626 Reckson Plaza
Uniondale, NY  11556

Telephone
(516) 522-2575