December 20

Emergency estate planning: I’m going on vacation, do I have time for a Will?

One of the most common telephone calls I receive is from a frantic parent who has just organized their first vacation away from their children, yet have failed to put in place any estate planning documents in case of their early demise. Every time they are going away in 2 weeks. Every. Time.

I admit that flying on a plane is safer than driving in your car, and that logic therefore dictates that when a parent hops on their motorcycle or enters their car I should actually receive the call then, but most people contemplating their eventual demise fail to use the left side of their brain. Thus, if it takes the distant potential of a tragic, explosive, fiery plane crash for someone to come in and finally do their Last Will and Testament, I’m not going to argue anymore. Come in quickly! The explosion is going to be a sight to see! Don’t forget to kiss your kids before you leave and tell them you love them.

What to do?

There are two options my office now provides and here they are:

1) Emergency Planning. I will expedite the initial consultation along with the drafting of all documents. We will name a guardian of the children in your Last Will and Testament, draft a Power of Attorney for each parent and create Health Care Proxies/Living Will as well. We will complete everything in 3-7 days and it will be twice the price of my regular basic estate planning package.

2) Standby Guardianship Drafting and Signing. This is not a perfect remedy, but it’s something. When a parent designates a standby guardian, they are recommending that person to be the child’s guardian in the future. If the parent becomes debilitated, incapacitated or dies, the standby guardian may petition the court within 60 days and apply for permanent appointment.

The takeaway is very simple here. First, you are not going to die in a plane crash and should just get your planning taken care of early on. Second, many people are not willing to pay double to expedite the completion of their Wills, so if you are going away and need something, we’ll draft the standby guardianship and complete your Wills when you come back.

Take a breath and enjoy your trip. You deserve it.

Also if someone you know has died in a plane crash and you’re reading this I apologize for making it part of this story. I know people die on planes. It’s terrible. It’s also terrible when people don’t plan correctly for their death and their children or estate have to pay the price. I’m passionate about people’s wishes actually coming to fruition when they die. It’s a weird passion.

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September 9

Using a NY MOLST form for End of Life Decisions

End of life care is never easy to talk about, but it is one of the most important and overlooked parts of any true estate plan.

NY MOLST form

All of my clients who come in “for a will” always walk out with a health care proxy and a living will as well. A health care proxy designates an agent to make decisions on behalf of the principal, or usually at that time, the patient, after two physicians concur that the patient lacks medical decision-making capacity. A living will states the client’s wishes to the agent so that the agent will act in accordance with them.

New York has a little known form known as the MOLST form when it comes to a seriously ill person who may die in the next year. This is not a form an attorney can fill out for a client, only something we as attorneys can push a client to fill out with their doctor. In my opinion it is a mandatory form to help guarantee that a person’s wishes are fulfilled as some of the most trying times lay before them. As long as this person has the ability to make medical decisions regarding life sustaining treatment, a MOLST form will list exactly what they want and do not want done to them: resuscitation, intubation, mechanical ventilation, hospitalization. It has advanced to the point where the form has gone electronic, found at www.NYSeMOLSTregistry.com, so that it can be easily accessed.

There are no lawyer secrets here, in fact I wish this form was not such a secret at all. When someone is entering a time where palliative care is being considered or is in the near future start reading about the MOLST document here and you can even bring the document into your doctor’s office, if she hasn’t heard of it, found here.

The two best aspects about the MOLST form that jump out at me are one, it cannot be over-riden by a health care agent’s sole wishes. This helps guarantee a patient’s wishes – this is paramount when it comes to end of life decisions. Secondly, and equally as important, it eases the burden of the family around the patient. In those two weeks when life is incredibly hard for everyone a simple piece of paper shoulders the burden of the hardest decisions.

I’m happy to answer any questions that I can about this topic because I truly believe in the importance of it.

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May 16

Estate Planning for Digital Assets in New York

Starting today you may wish to start planning for your digital assets. We live in a world where a decedent can more often that not have a tremendous amount of digital property: an email account on Gmail, a Youtube channel with a multitude of videos, a successful Yelp page for their business, a personal and business Twitter account, a personal and business Facebook account, an Instagram account, a PinInterest account and whatever else comes next in the expanding internet world we live in. The numbers are truly mesmerizing. In their fourth quarter results of 2014, Facebook reported 1.393 billion monthly active users.(1) Thirty-one percent of all United States senior citizens use Facebook.(2) Twenty-six percent of internet users have a Instagram account.(3) Twenty- three percent have a Twitter page.(4)

At first, it was hard to wrap my own head around thinking about these digital assets as true assets. Where is the hard value? Besides a rare Youtube channel that may be bringing in revenue, the value may not always be monetary when it comes to a digital asset. For example , an executor may want to memorialize a Facebook page to let the decedent’s friends know she has passed. There may be that tweet on Twitter that agonizes the decedent’s daughter every time she looks at it and she begs you to take it down. Maybe there is that lost email the decedent’s son can’t find, that he knows would bring him peace just to read it. Yet, the hard value does exist in the digital age, i.e. a business owner may have kept all their financial records in the cloud. The situations are countless.

So what happens to all this growing information when someone dies?

The Law Today

Currently if a New York decedent fails to plan for her digital assets, they are stuck in the vortex of attempting to deal with each provider that holds their digital information. Remember that click-through terms of service agreement you agreed to when setting up your Gmail or Facebook account? That is the one that governs.

Executors aren’t automatically granted power to go in and disable, reconfigure, or memorialize accounts in New York. Without a login and password for the account, attempts may be futile. Even with a login and password, you are probably going to run afoul of the terms of service agreement that the decedent electronically signed.

The Smart Solution

Across the United States the question as to what power an estate fiduciary has when it comes to digital property is slowly being concretely answered. At the time of this article, 21 states have enacted the Uniform Fiduciary Access to Digital Assets Act (UFADAA). The purpose of the UFADAA is to vest fiduciaries with the authority to access, control, or copy digital assets, while respecting the privacy and intent of the account holder.(5) Currently, New York does not have that law, and an executor, administrator, or trustee is still held at the whim of the account holder, i.e. Gmail.

New York does have proposed legislation on the table which is currently under review. It comes as an update to New York Estates Powers and Trusts Law (EPTL):

S 11-1.12 ACCESS TO DECEDENT’S ELECTRONIC MAIL, SOCIAL NETWORKING AND/OR
MICROBLOGGING ACCOUNTS
(A) THE EXECUTOR OR ADMINISTRATOR OR AN ESTATE OF A DECEASED PERSON
WHO WAS DOMICILED IN THIS STATE AT THE TIME OF HIS OR HER DEATH SHALL
HAVE THE POWER TO TAKE CONTROL OF, CONDUCT, CONTINUE OR TERMINATE ANY
ACCOUNTS OF THE DECEDENT ON ANY SOCIAL NETWORKING WEBSITE, ANY MICROB-
LOGGING OR SHORT MESSAGE SERVICE WEBSITE OR ANY EMAIL SERVICE WEBSITE.
(B) ANY SERVICE PROVIDER OF A SOCIAL NETWORKING WEBSITE, A MICROBLOG-
GING OR SHORT MESSAGE SERVICE WEBSITE OR AN EMAIL SERVICE WEBSITE SHALL
PROVIDE TO THE EXECUTOR OR ADMINISTRATOR OF SUCH ESTATE ACCESS TO ANY
ACCOUNT HELD BY THE DECEDENT UPON RECEIPT BY THE SERVICE PROVIDER OF:
(1) A WRITTEN REQUEST FOR SUCH ACCESS MADE BY THE EXECUTOR OR ADMINIS-
TRATOR, ACCOMPANIED BY A COPY OF THE DEATH CERTIFICATE AND A CERTIFIED
COPY OF THE CERTIFICATE OF APPOINTMENT AS EXECUTOR OR ADMINISTRATOR; AND
(2) AN ORDER OF THE COURT OF PROBATE WITH JURISDICTION OVER THE ESTATE
OF THE DECEDENT DESIGNATING THE EXECUTOR OR ADMINISTRATOR AS AN AGENT
FOR THE DECEASED SUBSCRIBER AS DEFINED IN THE ELECTRONIC COMMUNICATIONS
PRIVACY ACT, 18 U.S.C. 2701, ON BEHALF OF HIS OR HER ESTATE, AND ORDER-
ING THAT THE ESTATE SHALL FIRST INDEMNIFY THE SERVICE PROVIDER FROM ALL
LIABILITY IN COMPLYING WITH SUCH ORDER.
(C) NOTHING IN THIS CHAPTER SHALL BE CONSTRUED TO REQUIRE SUCH SERVICE
PROVIDER TO DISCLOSE ANY INFORMATION IN VIOLATION OF ANY APPLICABLE
FEDERAL LAW.

We will see where it goes, but this would be a tremendous step in the right direction for any future appointed executor or administrator of an estate.

What can you do in the meantime?

Currently I advise my clients to take these simple steps in order to help ease the transition of the data when the time comes:

1) Make a list of all accounts and passwords. Keep it in a secure place.
2) Backup your important digital data on a schedule to a separate, secure hard drive or other secure device.
3) And lastly it is imperative that a person explicitly authorize the companies that hold their electronic data to release that data to their fiduciaries during incapacity and after their death. This would be done through their estate planning documents, including, but not limited to any wills, trusts, and power of attorney.

1. http://expandedramblings.com/index.php/by-the-numbers-17-amazing-facebook-stats/
2. http://www.pewinternet.org/2015/01/09/social-media-update-2014/
3. http://www.pewinternet.org/2015/01/09/demographics-of-key-social-networking-platforms-2/
4. http://www.pewinternet.org/2015/01/09/demographics-of-key-social-networking-platforms-2/
5. http://www.digitalpassing.com/2014/07/16/uniform-fiduciary-access-digital-assets-act-ufadaa/

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January 30

Estate Planning: Wills, Part I

Some of my clients have millions of dollars. For them, estate planning is a necessary item on their lifetime checklist or else their estate will run into dire tax implications. For New York residents who die on or before March 31, 2014, an estate may be subject to the New York estate tax if the total of the federal gross estate, plus the federal adjusted taxable gifts and specific exemption, exceeds $1,000,000. Many New Yorkers fall into this category and for them, it is usually much cheaper to set up an estate plan then to pay estate taxes.

Things are changing though.

Going forward into the future the NY State Tax Law will be in constant flux until the year 2019. Part X of Chapter 59 of the Laws of 2014 amends the estate tax to decouple the tax from Federal law. The estate tax was commonly known as a “pick-up” tax because the tax equaled the Federal credit for state estate taxes as it existed on July 22, 1998. The unified threshold of $1 million is replaced with an applicable credit equal to the tax on a basic threshold amount equal to $2,062,500 for those dying in State Fiscal Year 2014-15; $3,125,000 in SFY2015-16; $4,187,500 in SFY2016-17; and $5,250,000 from April 1, 2017 to December 31, 2018. The basic threshold will equal the Federal basic threshold amount with annual indexing for those dying on or after January 1, 2019. The applicable credit is reduced for New York taxable estates exceeding the basic threshold amount and equals zero for those exceeding one hundred five percent of such amount. This is similar to the loss of the benefit of the $1 million unified threshold under previous law.
Gifts taxable under Section 2503 of the Internal Revenue Code that were not otherwise included in Federal Gross Estate and that were made during the three years ending on the date of death must be added to the New York Gross Estate. However, gifts made while the decedent was a nonresident of New York State and gifts made prior to April 1, 2014 or on or after January 1, 2019 are not included. The Generation Skipping Tax has also been repealed as of April 1, 2014. Taken from http://www.tax.ny.gov/pdf/stats/sumprovisions/summary_of_2014_15_tax_provisions.pdf

In my opinion this brings many more people back into the realm of “So why do I need a will now?” and the question that usually follows is then, “and why do I need an attorney to prepare it?”. Well, the answer is simple. You probably always needed a will, you might just not need that trust at this time. Let’s explore why:

1) First and most important. An attorney’s supervision of the execution ceremony gives rise to a rebuttable presumption that all of the requirements of the statute of wills were met. (Matter of Kindberg, 207 N.Y. 220, 100 N.E. 789 (1912). This is incredibly important. Will contests happen all the time. Take a second and think of your family. Now think what would happen if you threw a pot of money in the middle of a room on a day they all happened to be there? When an attorney supervises the will he or she drafted, it helps everyone form an orderly line and walk slowly to the pot, if they are entitled to walk to the pot at all. In essence, this helps a decedent’s wishes actually come to fruition.

2) Secondly, you can choose exactly who gets what. Without a will your estate will be divided by law, specifically Article 4 of the Estates, Powers and Trusts Law of NY (the EPTL). Discussing Article 4 is a separate blog entry.

3) Thirdly, simply put: a guardianship provision for your minor children.

There are other reasons, but let’s save something to talk about.

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