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TRUSTS AND ESTATES PLANNING & ADMINISTRATION

TRUSTS AND ESTATES PLANNING & ADMINISTRATION

The services of our Trusts and Estates Practice Group include:

    • estate planning
    • tax planning
    • business succession planning
    • financial and retirement planning
    • estate and trust administration
    • estate planning for families with special needs
    • elder law
    • Medicaid planning
    • estate and trust litigation
    • charitable gift planning, and
    • representation of tax-exempt and charitable organizations.

Our Trusts and Estates attorneys and paralegals possess diverse talents and interdisciplinary skills. Areas of concentration include tax, employee benefits, will and trust preparation and administration, tax return preparation, business organizations, and elder law.

Members of our Practice Group include attorneys who are admitted to practice in New York, Pennsylvania, Illinois, Massachusetts, Colorado and Florida, allowing us to assist in estate, tax, financial and retirement planning, and in the administration of estates and trusts, for residents of each of these states.

    • The preservation of wealth for current and future generations requires active planning. Whether earned or inherited, wealth can easily be eroded by taxes, creditors’ claims, economic downturns, healthcare costs and imprudent spending. Taking an interdisciplinary approach, we will develop a flexible customized solution to fit your family’s unique needs.

      Planning with trusts can reduce or eliminate income, gift, estate and generation-skipping transfer tax, protect trust assets from the claims of a beneficiary’s creditors, and preserve assets for surviving spouses and for spendthrift, disabled and under age beneficiaries.

      Certain states, such as Alaska and Delaware, allow the establishment of perpetual, self-settled trusts in which the grantor is a beneficiary. These trusts provide creditor protection for the grantor as well as the beneficiaries. Their perpetual duration can eliminate transfer tax in all future generations.

      Grantor trusts have unique properties that promote estate freezing opportunities. Transfers to such trusts of appreciating assets can substantially reduce future estate and generation-skipping transfer taxes.

      We will strategize with you to determine the best type of trust to meet your needs. We will also explore the formation, structure and operation of corporations, family limited partnerships, and limited liability companies to own your business and investment assets. The value of your interest in these entities, when transferred by gift, by sale or at death, can often be discounted to take into account a minority interest, a lack of control, or a lack of marketability. Taking advantage of these discounts can reduce overall transfer taxes in your estate.

    • If you own property in more than one state, or in another country or territory, or if you have lived in more than one state, your estate plan may need to take into account the laws of multiple jurisdictions.

      More than one jurisdiction may tax the same property at your death. While some jurisdictions provide a credit for a tax paid in another jurisdiction, others do not. Therefore, planning to avoid unnecessary duplicative taxation of your assets is critically important.

      The probate laws of states, other than your home state, in which you own property usually require that an ancillary probate proceeding be commenced to dispose of your property in that state. This type of proceeding can be avoided by the use of a revocable trust to own your property located there.

      If you are married and previously lived in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), your and your spouse’s property acquired during such time is community property. Community property must be handled differently in your estate plan than property acquired in a common law state, such as New York or Florida.

      The trust laws of some states are more advantageous than those of New York. Depending on your circumstances, we may advise forming a trust in a state that provides superior creditor protection, allows you as the grantor to be a beneficiary of your own trust, and allows trusts to have perpetual duration. In addition, there may be advantages to operating a trust in a state that has no state income tax or lower state income tax rates.

      If you are planning on establishing domicile in a state other than New York, we will advise you on the rules to follow to accomplish the change in status.

    • Estate planning is asset protection planning – preserving your wealth so it may be transferred to those to whom you wish to receive it. Tax planning is an essential part of asset protection planning. In addition, there are certain assets and circumstances that require more focused protection than others.

      Whether you are in an environmentally sensitive business, a farming enterprise, a professional practice with inherent malpractice risk, a highly debt-leveraged venture, or a business with significant exposure to third party claims, such as rental real estate, retail sales, or manufacturing, cordoning off risks into separate and distinct entities, and protecting your assets that are not involved in the risky enterprises, is essential. We will provide you with the business, trust and other planning tools to reduce your and your family’s exposure to these risks.

    • It is a fact that many marriages do not last. Smart planning to protect assets that you leave to your heirs from the risk of loss through a divorce – yours or theirs – often involves the use of marital agreements and trusts. We will advise you and your children on when it may be appropriate to have a prenuptial or postnuptial agreement, and what should be included in such an agreement. We approach the discussion of marital agreements with sensitivity, understanding the delicate nature of such an agreement and the importance of preserving each spouse’s dignity, while at the same time advocating for your rights and those of your family in negotiating and crafting the agreement.

    • Estate planning is a continuous process that evolves as your life progresses.  Changes in your life that may necessitate an update to your estate plan include a shift in your assets, a change in your family, modifications to tax laws, or simply a refocusing of your goals.

      Divorce is a major life change which may require adjustments to your estate plan.  Although you may feel drained after consulting with attorneys throughout your divorce, the process of updating an estate plan is comparatively straightforward.  Estate planning is also crucial to ensure that you do not inadvertently undo the results secured in the divorce process.

      A complete and healthy estate plan may encompass multiple documents that need attention after a divorce.  Below is a list of documents that should be carefully reviewed and considered:

      • Will
      • Revocable trust
      • Trusts to own or secure support obligations
      • Power of attorney
      • Health Care Proxy
      • Living Will
      • Funeral Arrangements
      • Life insurance policy beneficiary designations
      • Bank and brokerage accounts particularly those that are joint or have a “transfer on death” or “paid on death” designations
      • Beneficiary designations for IRAs, 401(k)s, other retirement plans, annuities and health savings accounts
      • Real estate deeds
      • Titles to vehicles
      • Qualified Domestic Relations Order (these are usually handled in conjunction with your divorce)
      • If you plan to remarry, you may want to consider a prenuptial or post nuptial agreement
    • If you are the owner of a family business, making sure that it is successful now and into the future is one of your prime concerns. You may have one or more parents, uncles, aunts, siblings, children or cousins working in the business with you, each with a different percentage (or perhaps no) ownership interest in the business. Planning for the passage of ownership from one generation to the next involves sophisticated business, financial, tax and estate advice, and will require attention to family, leadership, and fairness concerns. Business succession plans often are fluid, and change as the younger generation matures. We will artfully guide you through the intricacies of planning for such a transition, through all of its stages. We have significant experience in developing and implementing business succession plans for dairy farms, retail businesses and manufacturing concerns.

      Often the successor to the parents’ business operations is just one of several children. That child may have accumulated “sweat equity” by his or her efforts on behalf of the business. Determining whether that child receives his or her interest in the business at a discount from fair market value, as a gift or bequest, or in lieu of other assets that pass to the non-business heirs, are concepts and solutions that we will explore and develop with you. Providing for the non-business heirs through life insurance, their passive ownership of income-producing real estate leased to the business, or the distribution to them of the business heir’s payments for the purchase of business assets, are just a few of many strategies to consider.

    • Many of us have been married more than once, and have families comprised of your, my and our children. The needs and wants of each spouse for such spouse’s own children, for his or her step-children, and for the other spouse, need to be specially considered. Providing for the surviving spouse, yet protecting and preserving assets for the children of the predeceasing spouse, can be achieved through the use of trusts. Marital agreements are important tools in protecting pre-marital assets for the children of a prior marriage. With many of us marrying after a first spouse’s death, assuring some inheritance for the children of the first marriage is an important and achievable goal.

    • One of the most important estate planning decisions a person makes is choosing a trustee; the person who will carry out the terms of a trust established during lifetime or after death. For many clients, a member of the family is the appropriate choice, but for those clients who need or prefer an independent fiduciary, our attorneys often serve in the capacity of trustee. When acting as trustee, our attorneys uphold the highest level of integrity and impartiality in performing their duties. We also work closely with investment managers, accountants, other financial professionals, as well as family members, to insure that the wishes of the grantor (lifetime trusts) or testator (testamentary trusts) are followed.

    • One of the major legal responsibilities of a trustee is to timely file fiduciary income tax returns and correctly pay the state or federal income taxes for the trust. Our attorneys and paralegals have expertise in advising trustees concerning their income tax filing obligations and in the preparation and filing of fiduciary income tax returns. We have the experience to handle even the most complicated fiduciary income tax matters. In addition, our firm utilizes the latest in accounting and fiduciary income tax software technology, which allows for efficient and cost-effective tax return preparation.

    • Our firm represents trustees, both individual and corporate, with regard to their fiduciary obligations. This service includes assisting clients in trust funding, coordinating ongoing contributions to trusts, preparation of annual “Crummey” letters and payment of premiums for insurance owned by trusts, preparation of investment policy statements for the management of trust investments, coordinating the review of and changes to trust investments, maintenance of trust bank accounts, handling all required communications between trustees and trust beneficiaries, preparing trust accountings, preparing annual fiduciary income tax returns and closing trusts at the end of their terms.

      To aid the trustee our firm utilizes the latest in trust accounting and fiduciary income tax technology. Our attorneys have extensive experience in advising trustees and will provide clear-cut explanations to all questions. Our paralegals and trust administration specialists have substantial experience in trust administration, accountings and the preparation of fiduciary income tax returns.

    • For many of us, our pets are just as much family members as our children and grandchildren. Just because your pets cannot own property does not mean that you cannot provide for their care as part of your estate planning process. Instead of assuming that someone will step in and care for your pets once you are unable to do so, many pet owners are now establishing trusts for their pets.

      A “pet trust” is one way to set aside funds for your pet’s future care and provide direction to your friends and family members about caring for your pet. Pet ownership can be expensive, and you may not want to burden your family or friends with the expense. The funds you put into a pet trust could be used to pay for vet visits, grooming, medications, daycare/boarding, toys and treats. A pet trust will also let you name the person or persons you would like to appoint as caregiver of your pets after you pass away. You might even consider using a small life insurance policy to fund your pet trust.

    • Our Elder Law attorneys help clients navigate the often complicated areas of Social Security and Medicare. We can help secure your public benefits and help you plan for your financial future as you enter retirement.

    • Nearly half of adults in their 40s and 50s are simultaneously trying to provide for their young children and care for their aging parents. In this phase of life, your estate planning needs are likely to encompass helping your parents make important updates to their wills and health care proxies. These can be difficult conversations to have, as your parents or in-laws may want to retain control and privacy of their own financial affairs.

    • Complex and emotional legal issues can arise as a family member approaches the end of life. As you and your loved ones grapple with these issues, it is important to have a clear understanding of everyone’s rights and responsibilities for end of life decisions. We can help you and your families navigate these difficult decisions and ensure that you understand the legal guidelines for end of life decision making.

    • We work with individuals and families to administer the estates of deceased family members. The process ordinarily begins with either the probate of the will, if a will has been executed, or if not, the filing of a petition for appointment of an administrator. Our relationship with the client, however, begins earlier. We work with the client to first identify if a court proceeding for probate is required and what alternatives are available to the client. This analysis saves time and expense for the client and, in the event that a court proceeding is necessary, lays the ground work for a smoother process.

      Anticipating tax issues, difficulties in liquidating assets and anticipating business transition issues that might become significant legal and tax costs in the future is crucial to allow the client to carry out the wishes of the family member while avoiding intra-family disputes and unnecessary costs and taxes.

      We work with the fiduciary of the estate to create and fund any trusts that are required to be continued under the terms of the will. Specifically, we will secure the required tax identification numbers, advise as to the nature of the accounts to be created and provide guidance on funding of the trusts. In addition, we assist the fiduciary with communicating the nature and extent of the estate and subsequent trusts, if any, to the ultimate beneficiaries of the estate.

      We represent individuals, executors and trustees (individuals or financial institutions) in the administration process. We offer counseling to fiduciaries on the management of assets during administration, distribution requirements and tax planning. We work in conjunction with the client’s accountants, brokers, financial planners and advisors. We prepare all relevant state and federal estate-tax forms, draft estate and trust accountings on behalf of the fiduciaries and file the required petitions and proceedings in Surrogate’s and other courts to secure the close of the estate and the discharge of the fiduciary from future liability.

    • After the death of a family member, emotions and tensions may arise. Ordinarily the probate or trust administration process works smoothly. However, when disputes arise as to whether or not the will is valid, what were the intentions of the decedent and which person will best serve as the administrator or executor, representation by experienced counsel is most likely to produce a favorable result for the parties. During the course of the administration of the estate, beneficiaries and other parties may have differences of opinion as to the details of an accounting, the timing and nature of distributions or other investment and tax decisions made by the executor or administrator. These challenges, and those which can be raised only by a surviving spouse, including an election against the terms of the will, require adherence to detail and specialized litigation skills.

      Wills and trusts can be contested for a variety of reasons. The issues are emotional, serious and complex. It is crucial to have expert legal guidance to protect inheritance rights and ensure that the beneficiaries receive what is rightfully theirs.

      Because estate litigation can be expensive, with the outcome uncertain, we strive to resolve disputes for our clients, whether our client is the executor, administrator, trustee or one of the beneficiaries. A favorable agreement between the parties to a dispute is generally preferable to a trial. The agreement avoids the expense of a long court battle and the resulting family confrontation that may result in long term damage to the family. However, if no favorable agreement can be reached, we will fiercely litigate and pursue the rights of our clients.

    • The practice of Elder Law requires understanding the needs of our seniors and their families in a way that extends beyond the traditional provision of legal services. We assist our clients to address a broad range of issues, including Medicaid planning and application for Medicaid, guardianship, disability planning, trusts, health care proxies, powers of attorney, and asset protection planning. We provide advice and assistance concerning the range of insurance, long term care and investment products, and work closely with the professionals providing those products to ensure coordination with the client’s planning.

      Our services are enhanced by the many connections to the community we establish, which in turn allows us to facilitate coordination of services with other professionals who serve our clients. We work with these professionals and the supporting community of each client to ensure that the client’s wishes and best interests are served.

      As our Elder Law clients age we are in a position to offer guidance on their evolving planning needs, which may include trusts and alternative care plans. We recognize that the solution for the client will not be solely a legal solution, but will involve coordination with quality providers of health care and residential services. We work to link the client with these services. Because we work with our clients over time, we provide a perspective and knowledge of the changing needs of the client and the connections to ever increasing levels of care that will best serve them.

    • Faced with the idea of long term care, many people are overwhelmed with the thought of how to pay for it. Medicaid is a jointly-run program of the federal government and New York State that offers a broad range of medical and health benefits, including long-term care, for those with limited resources. Many people believe that qualifying for Medicaid means “spending down” their life savings, but with proper planning, one may be able to qualify for valuable benefits and hold on to all or a substantial portion of one’s assets.

      The best time to begin planning for Medicaid is well before you anticipate needing long-term care. With enough time, we can help to preserve as much of your assets as possible. Not all types of trusts will protect assets in the event that you need to apply for Medicaid, so it is important that your plan take into account the complex Medicaid qualification rules. We can also advise you on the legal and tax implications of transferring property into trust and gifting property to family members.

      Although it is best if you start early, it is never too late to plan for Medicaid. We can help you understand the Medicaid application process, the income limits, and the role of pooled income trusts in maintaining Medicaid qualification.

      Medicaid can be an invaluable tool in providing care for seniors. With appropriate planning and guidance, seniors can get the care they need without losing everything they worked the rest of their lives to earn.

    • Many young families put off estate planning because they believe they are young, healthy, and don’t have much of an “estate.” Others may not want to think about what could happen if they should die while their minor children and spouse are depending on them. But even a young, healthy adult can be taken suddenly by an accident or illness and those with young families need a plan because others are depending on them.

      We can work with you to develop a plan to ensure that your family does not struggle financially as a result of your death. We can help you develop a plan for the persons who will care for your children should anything happen to you. We can advise you on trusts to provide for your children throughout their lives if you aren’t there to provide for them yourself.

      The plan you set up while your family is young may never need to be used. Your estate plan will likely change as your family grows and your circumstances change. While the idea of leaving your young family behind may be difficult, we can help give you peace of mind that your wishes will be carried out should the worst happen.

    • Many individuals who are not U.S. citizens are subject to the same income, estate and gift tax rules as U.S. citizens. However, the U.S. tax system does not provide all the same benefits that it does for U.S. citizens. Direct gifts and bequests, as well as gifts and bequests to trusts that would otherwise qualify for the unlimited marital deduction will not qualify for such deduction if the recipient is a non-U.S. citizen. Instead, special rules and limits will apply. We can advise you as to the limits on direct gifts and bequests, provide you with strategies to minimize your taxable estate, and can help you establish a Qualified Domestic Trust (QDOT) that can benefit a non-U.S. citizen spouse and take advantage of favorable tax treatment. With advance planning, we can help preserve your assets for your non-U.S. citizen spouse and potentially reduce your overall estate tax burden.

    • Proper planning is extremely important for everyone, and particularly for members of the lesbian, gay, bisexual, and transgender communities (LGBT) and other non-traditional families. LGBT and non-traditional families need experienced legal counsel in order to assist them in navigating a rapidly-changing and complicated legal system that does not always adequately protect their rights. Bousquet Holstein combines its reputation for excellence in estate and personal planning with experience and understanding of the particular needs of LGBT and non-traditional families.

      With the recent changes to the law, many couples that were previously barred from legally marrying are now able to do so. We can help you understand the legal and financial impact of marriage and how property and ownership rights may be affected by a marriage, especially for couples who have enjoyed long-term relationships and now wish to formalize their unions.

      Although the list of states that provide marriage equality continues to grow, a large number of states still bar same sex marriage and some even refuse to honor marriages celebrated in other states. Ours is an increasingly mobile society and your estate plan should take into consideration the possibility that you may not always live in a state that respects your marriage.

      For couples who decide not to marry, we can help ensure that your partner has all of the rights and benefits that you wish, from making decisions regarding your health care and treatment and helping to manage your financial matters in the event you cannot, to providing for your partner upon your death. We can also help you express your wishes regarding guardianship of your children and establish a strategy to provide for them after your death.

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