Estate Planning Presentation

Timins & Durante, LLP

PRESENT

Estate Planning in a Nutshell:
Living Documents, Effective Estate Transfers,
and How to Properly Use Trusts

Seminar held on September 24, 2009

ATTORNEY ADVERTISING
Estate Planning in a Nutshell
Page 1 of 14

BIOGRAPHY OF SPEAKER

Daniel A. Timins
800 Central Park Avenue, Suite 207
Scarsdale, New York 10583
Phone: (914) 819‐0663
Fax: (914) 372‐1491
www.tdlawoffices.com

Daniel Timins is a Founding Partner of Timins & Durante, LLP, where he practices estate planning,
taxation, and elder law. After receiving his Bachelor of Arts Degree from Washington University, he
received his Certified Financial Planner designation and worked at the financial firms of Merrill
Lynch, American Express Financial Advisors and Alliance Bernstein Investments. Daniel received his
Juris Doctorate from Pace Law School and during his schooling worked as a legal intern at the Law
Offices of Eugenia Vecchio and Associates in Harrison, New York, and the Pace Investors’ Rights
Project.

Between 2006 and 2009 Daniel was a member of the New York City Bar Association's Trusts, Estates
and Surrogate's Committee, where he helped to draft proposed state legislation for Insurable Interests of
Life Insurance Trusts, New York Insurance Law Section 3205, and participated in submitting proposed
legislation for the Revocatory Effects of Divorce, EPTL 5-1.4. He is a currently Co-Chair of the
Westchester County Bar Association’s Continuing Legal Education Committee and Co-Chair of the
Westchester Women’s Bar Association’s Taxation Committee. He is also currently a member of the
Nominating Committee for the Board of the Pace Law School Alumni Association, a Board Member of
the Westchester Women’s Bar Association Foundation, and a former Co-Chair of the Westchester
County Bar Association’s Membership and Member Benefits Committee. In 2009 Daniel was named as
a recipient of the “40 Under 40 Rising Stars Award” by the Business Council of Westchester.

Daniel is currently a member of the Justice Brandeis Westchester Law Society, the Financial Planning
Association’s Greater Hudson Valley chapter, and a former member of the Westchester County Bar and
New York State Bar Associations’ Estate Planning and Real Property Committees. Daniel is licensed to
practice law in the state of New York.

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The Estate Planning Process

INTRODUCTION DATA GATHERING STRATEGY SESSION EXECUTION CEREMONY
Discuss general Review financial Discuss options that Execute all legal
estate planning; statements and are available; documents; update
review client’s property; further review drafts of beneficiary designation
desires, priorities discuss the client’s documents and forms and deeds; discuss
and concerns desires explain significance future contact

THE THREE CORNERSTONES OF AN ESTATE PLAN

LEGAL DOCUMENTS
“Living Documents”
Wills & Trusts
Deeds to Real Estate

ACCOUNTS & BENEFICIARY GIFTING DURING LIFE
DESIGNATION FORMS
Giving Outright or in Trust
Joint & Individual Accounts
529 Plans & UTMAs
Life Insurance Policies
Health & Education Expenses
Retirement Plans

Page 3 of 14

“LIVING” DOCUMENTS

Estate Planning begins with preparing for issues that may arise during your life. This is because a
person never knows when they will need help with his or her daily legal requirements. Who will make
health decisions for a person with advanced stages of dementia? If a family member is physically
disabled? Who will have the discretion to make financial transactions for them? A comprehensive estate
plan begins with the following documents; if these documents do not exist a family member (or worse,
the state) will have to commence a Guardianship Proceeding on behalf of the affected individual,
which can be expensive, time-consuming and intrusive on the individual’s privacy.

A Power of Attorney [“POA”] is a form that
allows you, as the principal, to name an
agent of your choice to assist you with
financial affairs. Despite the title, an agent
does not need to be an actual lawyer. A POA
can be extremely helpful during times you are
not available to deal with your own finances,
either due to health, not being available to do
so yourself, or even if you are not interested
in maintaining your own financial affairs.
Your POA can either be durable, meaning
your agent has control immediately, limited,
meaning effective for a limited amount of
time, or springing, meaning it is effective
only after some stated event (such as being
disabled). You can revoke a POA at any time,
provided you are mentally competent to do
so. Because, hypothetically, your agent can
abscond with your funds, your agent should
be someone you place great Trust in, such as
a spouse or trusted child with adequate personal finances and some degree of financial accumen.

A Health Care Proxy is a document that allows a named agent to make health care decisions for you
when you are unable to do so yourself. An example is when a person is having a surgery and will be
undergoing general anesthesia and the attending surgeon would like to do unexpected additional work,
or when a person is no longer mentally fit to choose how to take care of themselves. Health care proxies
only apply when a person is unable to make decisions for themselves, and is revocable at any time. If a
person will be having surgery a hospital will require a person to sign that hospital’s standard health care
proxy; however, once the hospital stay is completed the proxy ceases to be effective.

A Living Will provides instructions to your health care agent as to whether or not you would like to
remain alive if you are dependent on hydration, feeding or respiratory mechanisms and in a “brain dead”
state. Additionally, it will provide instructions as to whether you want “maximum pain and relief” in the
form of painkillers even if the necessary dosage may inadvertently cease cardiac functions. Living wills
effectively “pull the plug,” but ONLY if the attending physician believes the principal will not recover
cognitive brain functions.

Page 4 of 14

An Advanced Guardianship Directive is a document that names a guardian for minor children when
their parents remain alive but are unable to continue caring for those children. A person can name both a
guardian of custodianship and guardian of finances. It should be noted that these are mere preferences:
The state is always primarily concerned with what is in the “best interests of the child,” so some AGDs
may only encompass a desire as opposed to anything that can be legally enforced. Additionally, one
parent cannot divest the minor’s other parent of custodial rights (only a court can do that). However
particularly where parents are divorced and one spouse becomes unable to take care of his or her child, it
may be possible to name an individual other than the remaining parent as guardian of finances.

A Disposition of Remains is a document that states a person’s instructions for administering to his or
her remains. Many people have added this preference to their Wills, but since a Will is not admitted to
Probate until several weeks after death (at a minimum) these instructions are ineffective for practical
purposes. Without a DORA a loved one, already bereaved and facing a multitude of important post-
mortem decisions that must be made in rapid succession, may feel pressured to handle your remains as
they see fit. Instructions in a DORA include information on purchased burial plots, and can be anywhere
from very simple (“I desire to have a traditional Catholic funeral and burial”) to highly detailed (“I
would like my remains to be cremated, and have my ashes scattered into the East River on a warm
spring day in front of a marching band playing “The Sound of Music”).

WHEN YOU DON’T HAVE LIVING DOCUMENTS

Some people, particularly those who do not have close friends or relatives, or people who choose to
avoid addressing the very serious issues mentioned above are particularly vulnerable when they have a
problem that a Living Document would address.

Guardianship Proceedings are legal proceedings that take place in the county Surrogate’s Court, and
are conducted to handle legal matters for people who cannot do so themselves: Minor children in need
of a guardian of custodianship or finances typically must go before the court. Seriously disabled adults
whom a physician declares incapable of handling his or her health or financial affairs are also the focus
of these proceedings. In the case of disabled adults the Court will tailor a specific guardianship
applicable to the diminished skills of that adult. A former physician suffering from dementia who may
still be able to make his own rational health care decisions may only have a guardian appointed for his
financial affairs. The opposite may be true of a former accountant or financial planner.

Guardianship Proceedings can be gut-wrenching events to watch! Not only does the proposed
guardian have to take care of the disabled adult (which is difficult enough), but the proposed Guardian
AND the disabled individual actually have to plead their case to a judge in person, file papers, pay
legal fees, AND in the interim the adult’s funds cannot be used for these costs AND his or her health
care decisions are somewhat in limbo AND the Court may or may not choose the guardian whom the
adult would have wanted. Guardianship Proceedings can be avoided by having the proper Living
Documents, since these documents address the exact affairs these proceedings intend to deal with.

Page 5 of 14

GIFT & ESTATE TAXES and EFFECTIVE TRANSFERS

FEDERAL ESTATE AND GIFT TAXATION
The “Unified” Credit
Annual
Exclusion Gifts: “Annual Exclusion Gifts” have no impact on a person’s
$13,000 in 2009
lifetime “Gift Tax Exemption” or post-mortem “Estate
Tax Exemption”
• A person can gift Annual Exclusion Gifts to any and
every US citizen every year
Estate Tax
Exemption “Gifts” are given during life; any transfer of an amount
$3,500,000 in 2009 over the annual exclusion decreases a person’s Gift Tax
Exemption
• When this amount is depleted Federal Gift Taxes are
Gift Tax assessed on future gifts
Exemption
$1,000,000 “Bequests” are given after life and decrease a person’s
Estate Tax Exemption
in 2009
• Any use of the Gift Tax Exemption during life
decreases the amount that can be given free of Estate
Taxes after life

NEW YORK STATE ESTATE TAXES

MYTH: The Federal Estate Tax affects millions of Americans.
FACT: The Federal Estate Tax currently affects only about 1% of Americans. However, if left
unchanged, the New York Estate Tax will affect a much larger percentage of households!

Fortunately, there are no New York state gift taxes.
Hypothetically, a citizen of New York can gift an
Federal Estate unlimited amount of property without assessing state gift
Tax Exemption taxes.
= $3,500,000 New York currently begins assessing a state estate tax
starting at $1,000,000; the approximate rate of taxation is
~9.9% on every dollar over this amount. Additionally,
New York since the passage of EGTRRA, these taxes are now merely
Estate Tax a deduction against federal estate taxes (whereas they used
Exemption = to be a credit).
$1,000,000
Think about that for a moment: If a person in Westchester
County owns a home and a life insurance policy, has a
modest retirement plan, and a modest amount of personal
property (such as a car and some jewelry) his or her estate
MAY BE TAXABLE!!!

Page 6 of 14

TRANSFERRING PROPERTY AFTER LIFE

There are several ways that property is
transferred after life. Many people believe
having only a Will is enough to accomplish
one’s testamentary desires. However, for
many people a Will only transfers a very
small portion of their property.

Effective estate plans include the proper
planning of (1) assets that pass by
Operation of Law, (2) individually-owned
assets that pass by a Will through
Testamentary Transfers, and (3) avoiding
relying on Statutory Transfers.

Operation of Law is the preferred method of
transferring property (because distributions
are private, inexpensive and fast), but
ONLY if proper thought and preparation has
been made to handle these assets.

“OPERATION OF LAW” The “Beneficiary Designation Form”

Assets which are transferred by operation of law are automatically transferred to the Beneficiary by
merely giving a death certificate to the administering institution (a bank where a joint account is held,
life insurance company for a life insurance policy, or a financial institution for an IRA). The operative
transferring document is the Beneficiary Designation Form or a Deed to real estate, NOT a Will. In the
case of joint property (financial or real estate) instructions in a Will are ineffective; the surviving joint
owner only needs to produce a death certificate to client the property.
RULE: Assets that are transferred by operation of law are NOT affected by ANY language in
a Will (except revocation of Totten Trusts); the joint owner of the property or the Beneficiary
Designation Form are the sole means of transferring the asset unless there is a judgment
awarded by a court or an agreement among all of the estate Beneficiaries.

Page 7 of 14

JOINTLY OWNED PROPERTY Avoid Using It Too Much!!!

Joint property between spouses is considered to be contributed equally by each spouse regardless of
who actually provided the funds.

Joint property between non-spouses is considered to be given entirely by both parties.

EXAMPLE: Martin and Charlie, father and son, have a joint bank account worth $100,000.
Because they are not spouses it doesn’t matter who actually funded the account: Unless they can
prove otherwise through thorough documentation, the IRS assumes that if Martin dies first he
contributed all $100,000. If Charlie dies before his father the IRS assumes Charlie contributed
the entire amount. Then, because the funds are transferred in full to the survivor, when the
survivor passes away the same money can be taxed again! In other words, the IRS has the
opportunity to assess estate taxes on the same funds twice over this non-spousal joint property!

RETIREMENT PLANS

Because retirement plans, such as 401(k)s and IRAs, grow tax deferred income taxes will be owed on
distributions, either during the life of the account Owner or after life based on the lives of the
Beneficiaries in the form of required minimum distributions [“RMDs”]. The amount that must be
distributed is determined by a standard factor set out in IRS life expectancy tables. The younger the
designated beneficiary, the lower the required minimum distribution

Retirement Plans Requirement Minimum Distribution Rules for Non-Spousal Beneficiaries

RMDs: Death BEFORE RBD RMDs: Death AFTER RBD
If NO Designated First Year of • All QP & IRA money must be • RMDs over Owner’s
Beneficiary Distributions distributed by 12/31 of year of remaining life expectancy
th
5 anniversary of Owner’s w/out recalculation
(on Beneficiary Subsequent death – this is an income tax RMD is calculated by
Designation form) Years nightmare! reducing Owner’s life
expectancy by “1”
If a Legitimate First Year of • RMDs made over bene’s life • RMDs may be made over
“Individual” Distributions expectancy from the Single the longer of:
Designated Bene Life Expectancy Table IF the (1) the Owner’s
IS Named bene commences distributions remaining life
by 12/31 of the year after the expectancy, or
(on Beneficiary year of Owner’s death (2) the bene’s remaining
Designation form) • RMD for designated bene life expectancy
uses bene’s life expectancy
for his age on his birthday in
the year following the year of
the Owner’s death
Subsequent • RMD calculated by reducing RMD calculated over bene’s
Years bene’s life expectancy by “1” life expectancy from the
from the IRS tables Single Life Expectancy Table
Page 8 of 14

PRACTITIONER’S NOTE – Always Name Your Spouse as Primary Beneficiary
It is almost always preferable to name a spouse as Primary Beneficiary of a retirement plan, even if
estate tax issues are involved. Spouses receive preferential RMD treatment – unlike other beneficiaries,
spouses do not have to take immediate RMDs unless they too are 70 ½. The spouse can either “roll
over” the plan to his or her own IRA, create an “inherited” IRA, or Disclaim the funds and transfer them
to the Contingent Beneficiaries. If the contingent beneficiaries are children it is preferrable to name a
See-Through Trust as the contingent beneficiary, and name the children as beneficiaries of the Trust.
The children will receive the benefits of holding funds in Trust, such as creditor protection, while
simultaneously maintaining a favorable RMD based on their longer life expectancies.

Suggestions for Naming Children as Primary or Contingent Beneficiaries to a Retirement Plan
1. Split up IRA accounts so each child is a contingent beneficiary of his or her own account for RMD
purposes (this can be done instead of using See-Through Trusts, or can be done after life)
2. Younger beneficiaries are able to “stretch” RMDs for longer periods of time due to their increased
life expectancy, allowing for a longer period of tax deferral.
3. If a child needs the funds now and the retirement plan does not have a Trust as the beneficiary RMD
rules won’t matter – they need the money now, so they will take it.
4. If the Owner’s estate shall be subject to income in respect of a Decedent consider (1) converting the
plan to a Roth IRA to minimize future income taxes, and (2) having desired charitable legacies paid
for out of the retirement plan.
5. Name a “See-Through Trust” as the beneficiary of the plan.

RULE: Even if the non-spousal “inherited” IRA is a Roth IRA the beneficiary MUST begin
taking RMDs, even if they are under 70 1/2.

LIFE INSURANCE
Naming the correct Beneficiary on
a life insurance policy is very
important, particularly when there
has been a divorce. Unlike transfers
to ex-spouses by a Will (which are
invalidated by divorce) insurance
pass to the named individual in the
Beneficiary designation form
(because it transfers by “operation
of law”). If you are concerned that a
child may get divorced it is best to
have the policy pay to a Trust with
that child named Trust Beneficiary.

Page 9 of 14

TESTAMENTARY ASSETS

Testamentary Assets are those that pass by a Last Will
and Testament. These include all assets that don’t
transfer by Operation of Law or Statutory Transfers.
Unlike Operation of Law transfers, there is no need to
complete Beneficiary designation forms: Any asset that is
a Testamentary Asset is automatically considered part of
your “Probate Estate,” and will be transferred by the
terms of your Will.

Testamentary assets include:

Real Estate Individually
(if not owned
by a trust and owned bank and
brokerage
not jointly accounts &
owned) Remember that Testamentary Assets are
personal property
Business transferred by a Will. If you have a valid
Interests Will you die Testate and you are the
(sometimes) Testator. If there is no Will these assets
become “Statutory Transfers” under the
laws of Intestacy (see below). If there is a
valid Will it is submitted to Probate in the
Surrogate’s Court, which then oversees the
Probate process. Probate is public, meaning
that anyone can view another person’s Will
once it is admitted to Probate. For that
reason (and many others) most estate
planners recommend creating and funding
Probate Trusts during lifetime.
Testamentary Assets may or may not constitute a large amount of a person’s estate. For a person who
jointly owns a house, holds a large amount of funds in jointly-owned bank and brokerage accounts, and
has a decent amount of money in retirement plans, Testamentary Assets may constitute a very small
percentage of the gross estate.

PROBATE (WILLS) v. TRUST ADMINISTRATION

Contrary to public opinion, Probate isn’t a “bad thing.” However, Probate can be (1) expensive and
time-consuming. (2) Probate is a completely public affair – you can review everyone’s Will that has
been admitted to Probate by the Surrogate’s Court. (3) Probate also requires a substantial amount of
paperwork to be submitted to the courts, and while court fees are quite reasonable, (4) the legal fees to
prepare these documents can be substantial. (5) Probate requires court supervision and oversight.
Even under ideal circumstances, (6) distributions of testamentary assets can take many months.

Page 10 of 14

Trust Administration is (1) a completely private affair, thus disowned heirs have limited knowledge of
estate distributions. (2) No court paperwork is required, and (3) the court will not interfere unless
there are formal legal proceedings. (4) Legal fees are substantially less than under Probate.
TRUSTS – A SOLUTION FOR LIFE AND THEREAFTER

PARTIES TO A TRUST
There are three (3) parties to every Trust: the Creator (also known as the Grantor or Settlor), the
Trustee (and often Co-Trustees or Successor Trustees) and Beneficiaries (and often Contingent
Beneficiaries if there could be any remaining Trust assets after the death of the Primary Beneficiaries).

Creator / Grantor / Settlor
> Creates the Trust
> Determines Terms of the Trust
> Funds the Trust

Trustee Beneficiaries
> Manages the trust property > Entitled to the property under
> Follows the Terms of the Trust the terms of the Trust
> Entitled to a Commission

A person can serve as all three parties at the same time – they can create a Trust, name themselves a
Trustee during his or her life, and also be the sole Beneficiary during that time. The largest benefits of
this arrangement are that (1) if the Creator becomes disabled a Successor Trustee can continue to use
Trust funds for the Creator’s benefit without requiring court approval, and (2) upon the Creator’s death
the Successor Beneficiaries can receive the remaining estate without the need of going through Probate
and the associated publicity and expenses of this process.

EXAMPLE: Phil and Ruth create Revocable Trusts during their lifetimes and retitle all of their
assets to either “The Phil Revocable Trust” as Owner or “The Ruth Revocable Trust” as Owner.
They name each other as Co-Trustees and initial Beneficiaries of each other’s Trust. During this
entire period either spouse can revoke his or her own Trust (perhaps there is a falling-out with a
contingent Beneficiary, and they want to disinherit him).

When Phil has a stroke and is in the hospital recovering Ruth is able to use funds from his or her
Trust for his medical expenses and other affairs. When Ruth pre-deceases Phil he can (if he is
capable) continue administering both his and her Trust for his benefit or have a Successor
Page 11 of 14

Trustee administer the Trust (again, for his own benefit). When the second spouse passes away
the Trust can be distributed to the contingent Beneficiaries (here Phil and Ruth’s children)
without having to go through Probate.

BENEFITS OF TRUSTS
Whereas a Creator cannot gain protection Additional Benefits of “Stand-Alone” Trusts
from his own creditors by placing funds in
a Trust, all Trusts, whether they are Stand- Decreased Estate
Alone or Testamentary Trusts, allow for Administration costs
Creditor Protection for Beneficiaries; just (Avoids Probate &
make sure to choose an appropriate Trustee decreases attorney fees)
and include the power for them to name a
Continuity
disinterested Co-Trustee. of control
Avoids the
over
Potential Creditors of Your Beneficiaries publicity
property;
associated
• The Internal Revenue Service and State with
faster
Tax authorities distributions
Probate
• Standard Lenders: Mortgage Company, of estate
funds
Credit Cards, etc.
• Claimants of Lawsuits against the Minimizing or
Beneficiary completely avoiding
• Spouses and Minor Children high Executor
Commissions

AVOIDING ANCILLARY PROBATE
Some people have to go through Probate in more than one state! A valid Will drafted for a New York
domiciliary may cover a person’s financial and personal property as well as real estate in New York, but
will NOT affectively transfer real estate in another state, such as Florida. Probate or Intestacy
proceedings have to take place in this second state for the real estate located there. This process is
known as Ancillary Probate, since the only piece of property being transferred by this second Probate is
the Real Estate. Ancillary Probate leads to a second-round of court filing fees, attorney fees, Beneficiary
involvement, etc. By having this second piece of real estate outside of New York owned by a Trust you
can AVOID Ancillary Probate (much like having your Trust own your New York real estate avoids
having to have it pass through Probate in New York). The Deed to this property outside of New York
should have the Trust named as its Owner to make this strategy affective.

MAKING A TRUST “EFFECTIVE”
RULE: An unfunded Trust is INEFFECTIVE!!! The most important aspect of having a Trust become
effective is both that (1) the Trust document is drafted, and (2) the Trust is named as the Owner of the
property, which effectively “funds” the Trust, either in the form of a Deed for real estate or as the
named Owner of a bank or brokerage account. Once these steps have been taken the Trust becomes the
Owner of the property, and the Trustee now administers the property under the terms of the Trust.

Page 12 of 14

PRACTITIONER’S NOTE: How to Name a Trust as Owner of Accounts and Real Estate
The title of a bank or brokerage account is no longer owned by Sam Smith, but is instead titled as The
Revocable Trust of Sam Smith. If Sam is the Trustee and the Trust names him as Beneficiary Sam can
use Trust funds however he desires. The Deed to your house or vacation home in Florida is no longer in
the name of Cindy Jones, but is instead owned by The Revocable Trust of Cindy Jones. Again, based
on the terms of the Trust, Cindy can live in the house as long as she wants, sell it, rent it out, etc., AND
the Florida vacation home now avoids Ancillary Probate because it is transferred by a New York Trust.
Make sure to fund your Trust! An estate plan that includes a Trust but has no property that is
explicitly owned by the Trust is an ineffective shell; all of the property the Creator thought was owned
by the Trust (and should have been distributed under Trust Administration) will be transferred via Will,
Operation of Law or the laws of Intestacy.

ESTATE TAX CONSIDERATIONS & “CREDIT SHELTER TRUSTS”
A Credit Shelter Trust [“CST”] holds aside a pre-determined amount of money in Trust at the death of
the Testator or Creator that qualifies up to the federal or state estate tax exemption. The surviving spouse
continues to spend his or her own funds and can invade the CST if needed. In the interim the funds in
the CST grow. Upon the death of the surviving spouse all of the funds in the CST, including investment
gains, pass to the contingent Beneficiaries (typically children or younger family members) estate tax
free. Most people with older estate planning documents have the federal estate tax exemption as the
defining amount of their CST. As already discussed, New York domiciliaries may want this amount to
be defined as the New York estate tax exemption. Also, since stating dollar amounts may lead to future
estate tax inefficiencies (due to ever-changing estate tax exemption amounts) using a Formula Provision
(“I leave the then-applicable state estate tax exemption in a credit shelter trust”) will allow for the
optimum amount of desired funds to be transferred in a CST free of estate tax.

Page 13 of 14

NAMING TRUSTEES
Care must be given to the exact powers that fiduciaries can control: Giving complete discretion may lead
to tax problems and lack of creditor protection.
Due to the wide range of powers available to Trustees
Spouses of Children of special attention must be given to determining these power
the the to maintain Beneficiary creditor protections afforded to
Beneficiary Beneficiary Trust asets. Since the Grantor will typically name himself
as Trustee of his Revocable Trust and has no creditor
Beholden protection the focus should be on naming an appropriate
Trustees Successor Trustee. In order to avoid creditors from having
a valid, enforceable claim against a Beneficiary one should
be careful to avoid people considered “Beholden Trustees”
Employees of Siblings who are to the Beneficiary. Allowing a Trustee to name either a
the Trustees of each Successor Trustee or a Disinterested Co-Trustee (I.e. a
Beneficiary other’s Trust person or institution with no interest in the Trust other than
Trustee commissions) should avoid this consequence.

Page 14 of 14

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