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Wills, Trusts and Estates: Estate Planning, Estate Administration & Litigation

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This presentation covers the estate planning process, factors to consider in estate administration and issues that could lead to estate litigation.

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Wills, Trusts and Estates: Estate Planning, Estate Administration & Litigation

  1. 1. WILLS, TRUST AND ESTATES ESTATE PLANNING, ADMINISTRATION & LITIGATION Presented by Damien Matthew Bosco, Esquire Bosco Law Firm, LLC 1350 Avenue of the Americas 2nd Floor New York, New York 10019 (212) 201-1908 Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  2. 2. WHY CARE ABOUT ESTATE PLANNING Benefits of an estate plan including the following: • Making sure your assets go where you want them to go • Controlling assets while you are alive but incapacitated • Controlling assets after death • Minimizing the emotional and financial burden on your heirs • Increasing the amount available for charitable donations • Avoiding the cost and delay of probate • Providing provisions for a guardian of minor children Bosco Law Firm, LLC 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  3. 3. HOW TO BEGIN PLANNING START WITH YOUR ASSETS AND YOUR WISHES • Designate your beneficiaries Spouse or Partner •Parents •Siblings •Children •Friends •Charities • Calculate your net worth (detail what assets you own) •Cash, Stocks, Bonds, Other Intangible Investments •Real Estate •Life Insurance, IRAs, 401Ks, Pensions •Inheritance • Identify potential tax problems Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  4. 4. FOUR FUNDAMENTAL PLANNING TOOLS NECESSARY DOCUMENT YOU MUST HAVE • Last Will and Testament – a legal document that details where you want your assets to go (after debts and taxes are paid); designates who is going to oversee the execution of your will; may state who is to care for your minor children • Durable Power of Attorney – a lifetime document that allows you to designate a representative to perform certain financial actions for you if you should become ill, incapacitated or otherwise unable to manager your affairs • Living Will – a written declaration of what life-sustaining medical treatments you will allow or not allow if you become incapacitated • Health Care Proxy – a document that authorized a person to make medical decisions on your behalf if you become incapacitated Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  5. 5. ADDITIONAL ESTATE PLANNING TOOLS TRUSTS – Legal vehicles for managing money • Managing money for an heir who is too young or financially incompetent • Providing continuity of management in the event of incapacity • Ensuring that a person’s assets go to their children rather than the surviving spouse’s children from a previous marriage • Reducing Income Taxes and protecting assets from creditors • Reducing the cost and public exposure of probate • Controlling the inheritance for a troublesome heir instead of simply disinheriting the person • Disinheritance often provokes ill feelings not only toward the estate owner but also toward those who actually inherit Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  6. 6. ADDITIONAL TOOLS: INSURANCE & GIFTS Insurance & Gifts can serve several purposes in estate planning • Provide family protection in an event of premature death • Protect your estate’s assets from catastrophic loss or lawsuits • Can be an asset passed on to heirs or charities • May be used to pay for estate taxes • A small business owner may use life insurance to provide an equitable share to heir who won’t run the business • Co-owners in a small business often use life insurance to buy out the deceased’s estate • Irrevocable Life Insurance Trusts – helps avoid paying estate taxes when the estate owner is the insured but the policy is actually owned by the trust and thus generally is not included in the insured’s estate • Gifting – can use if Estate taxes are an issue Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  7. 7. LETTER OF INSTRUCTION PROVIDING IMMEDIATE FAMILY WITH INFORMATION THEY NEED • Type of funeral you prefer and any prearrangements you made with the funeral home and/or religious organization • The contact information for each of your insurance policies (including Medicare, if currently covered) • A financial statement listing your accounts and any outstanding loans • The location of important papers and the key to your lock box or combination to any locked containers; • Person to contact such as relatives, friends and advisors • An obituary listing your name as you wish it written, including nicknames, place and date of birth, immediate relatives and any noteworthy accomplishments • Informed someone close to you where the letter of instruction is Bosco Law Firm, LLC 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  8. 8. REVIEWING YOUR ESTATE PLAN Goal is to draft documents for minimal changes • Review your estate plan periodically. Tax laws change, personal circumstances change and your net worth may increase or decrease, necessitating revisions to your plan • Work closely with professionals who understand estate planning Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  9. 9. THE PROBATE PROCESS What is Probate? A probate proceeding (or administrative proceeding) is a court proceeding which transfers assets belonging to an individual upon his/her death to his/her named beneficiaries or heirs at law. • Named beneficiaries are those parties identified in a person’s Will to receive the decedent’s property. • Heirs at law are those parties who inherit property in the absence of a Will according to the laws of the State where the person dies or owns property. Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  10. 10. NON-PROBATE ASSETS Assets not subject to probate include • Joint tenancies (including right of survivorship) • Bank and brokerage accounts and securities which have a payable on death (POD) or transfer on death (TOD) designation • Assets in Trust (including in a living trust) • Life insurance benefits with a designated beneficiary • IRA’s and Qualified Retirement Plans in which a beneficiary is named • It is important to note that assets controlled by the decedent at death, even if not subject to probate, are still subject to all the same estate taxes as probate assets Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York New York 10019
  11. 11. INITIATING THE PROBATE PROCESS Tasks involve in a probate or administrative proceeding • Determining the Existence or Nonexistence of a Will • Interviewing and determining the Personal Representative • Informing Personal Representative of duties • Evaluating the Estate to minimize costs and expenses • Locating, collecting and taking inventory of the Decedent’s assets – probate vs. non-probate • Determining which type of administration is right • Elections and filings – getting deadlines for the client • Handling claims against the Estate • Using Renunciation and Disclaimers as a Post-Mortem Planning Device • Using proper court forms • Using checklists to navigate the process • Understanding tax issues and filing proper tax forms Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  12. 12. ESTATE LITIGATION Necessity of proper execution, capacity and free will • A will must be in writing and must be signed at the end by the testator (the person making the will). • There must be at least two witnesses to the signing. • The witnesses do not have to read the will itself, but they must be able to swear that they knew that the testator was signing a will. • The testator must be mentally competent to make a will; that is, have sufficient mental capacity to be aware of the property the testator owns own and the people who would be the reasonable recipients of it at death. • It must also be obvious that the testator executed the will (signed) voluntarily and free from undue influence by those who will inherit. Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10005
  13. 13. CONTESTED WILLS AND OTHER LITIGATION Burden on those contesting the Will or commencing litigation • Those contesting a Will have the burden of proving that there are grounds for believing that the testator was incompetent or under duress when executing the will, or that proper procedure during the execution of the will was not followed, or that there is some other reason to disregard the Will’s provisions. • Other types of litigation in an estate administration proceeding can stem from fraud or breach of fiduciary duty, or the conversion of assets during probate or administration of the estate. Bosco Law Firm, LLC, 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019
  14. 14. BOSCO LAW FIRM, LLC ATTORNEYS AT LAW • ALWAYS REMEMBER: WHERE THERE IS A WILL, THERE’S PROBATE ( Let us know when you want a free personal consultation ) Bosco Law Firm, LLC 1350 Avenue of the Americas, 2nd Floor, New York, New York 10019

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