Estate Planning Process

Estate planning is the process of arranging for the management and disposition of your property after your death or in the event that you become unable to handle your financial affairs. If you have sufficient property, another goal of this process is to minimize or eliminate taxes on your estate. It is a very personal process, which requires careful analysis of your assets, personal and family situation, discussion of your wishes, and skilled drafting of the documents necessary to carry them out.

An experienced estate planning attorney can assist you in carrying out your wishes for the management and distribution of your property after death. I offer comprehensive estate planning services which are designed to minimize tax liability while directing assets to your intended beneficiaries.

I can provide all necessary or appropriate documents for your peace of mind including:

Last Will and Testament
Power of Attorney over Financial Matters
Health Care Proxy
Living Will
Testamentary Trusts
Living Trusts

Revocable Living Trust
Irrevocable Living Trust
Insurance Trust
Qualified Personal Residence Trust (QPRT)
Grantor Retained Annuity Trust (GRAT)
Charitable Trust
And Others

I provide experienced, personalized and compassionate care to my clients. My job is not finished until you are completely satisfied with the documents I have prepared for you. Call me for a consultation at 866-WILLS-88 or 212-867-1238.

A Word About Estate Taxes

Much attention has been given to efforts in the U.S. Congress to reduce and possibly eliminate the Federal Estate Tax. At present, this tax is scheduled to be reduced gradually in the next few years and eliminated altogether for those who die in the year 2010. As the law now stands, however, the tax will return for those who die in 2011 and afterwards, and will be imposed at the same levels as prevailed in 2001. Since no one can predict what, if any, new legislation will take place before 20011, anyone with substantial property must prepare to minimize taxes under the current law.

Furthermore, there are no plans to eliminate the New York State Estate Tax, which affects estates of $1,000,000 or more. Many families have estates exceeding that just because they own a residence.

Because of the uncertainty as to what level of federal estate tax will be in effect in the year of any particular person's death, we plan estates for all possibilities. One way this is done is by preparing documents that the survivors the opportunity to decide after the client's death as to how much of the estate will go into tax-sheltered arrangements and how much can be given immediately after death to the survivors.

Wills

You can direct the distribution of your assets after death by having a properly prepared, signed and witnessed will, If you don't have a Will, your estate will be distributed to the people prescribed as your heirs by New York State law. This can certainly have unintended consequences. For instance, if you die without a Will, survived by a spouse and children, your children could inherit a large part of your estate, which they may not be capable of handling properly, and which might deprive your spouse of assets he or she needs. In order to prevent such an unfortunate event, you will need a Will. Your estate planning may also be optimized by other devices, discussed below.

A Will can be a very flexible document, disposing of your assets as you wish, setting up "testamentary" trusts to take care of family members after your death and to take advantage of any federal death tax exclusions and deductions to which you may be entitled. A Will must be probated, however, resulting in some delay in the disbursement of assets. Also, your Will becomes public record when it is probated. If your circumstances warrant it, and if expediency and privacy are concerns, you may want to consider a living trust discussed below.

Living Trusts

A living trust can serve many purposes. During your life, the property in the trust will be invested and the income, principal and any capital gains can be used for your benefit. All decisions are made in accordance with the terms of the trust instrument by the trustee, who can be yourself, another person or a trust company. If you become unable to manage your property due to illness or accident, the trustee or a successor trustee will manage the trust accordance with its terms, which will include instructions about providing for your needs and those of your family.

After your death, the property will distributed in accordance with the directions you placed in the trust instrument, without any need for probate.It may be paid to the persons you designated in the trust instrument, or held in a continuing trust to provide for them as long as you specify. Disposing of your property in this way rather than by will can save some administrative expense as well as delay.

To establish a living trust, your attorney will prepare a trust instrument according to your wishes. After signing it you will convey any or all of your bank accounts, investments, real estate and other property you wish into the trust. It is managed by the trustee (which will be you until your death or disability) and, upon your death, the successor trustee named in the trust disburses the assets as specified by you in the trust.

A trust is not admitted to probate, meaning that the terms of it are private, and the trustee does not need a court order to convey any of the property.

A living trust also has the advantage that if you own real estate in another state, your personal representative will not need to open an ancillary estate in that state in order to transfer the property, so long as the property has been transferred to the trust.

Although a trust may save some probate costs, the value of the trust is still part of your gross estate, meaning you do not save any taxes. Also, the trust does not protect your assets from your creditors, and any income from trust assets flows directly through to you.

The Law Office of McGarry & Simon is conveniently located on Avenue of the Americas (6th Ave) between 46th and 47th Street in Manhattan.

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William A. Simon Attorney at Law
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