Category: Blog Post

Hey Expats: Come Home to Get Your Family’s Money

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Hey Expats: Come Home to Get Your Family’s Money     Despite the flaccid threats of political naysayers who threaten to leave the country after every presidential election (only to realize the United States is a markedly better place to live than countries with poutine, meme bans and gulags), some Americans actually do leave the U.S. on a near permanent basis. These novice ambassadors of American culture do typically maintain their U.S. citizenship for several reasons, some of which have to do with maintaining some financial benefit.   But being an expat – or having an expatriated citizen be a beneficiary or fiduciary of your Estate – can lead to a lot of Estate Planning challenges, and post-mortem difficulties that

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New York’s Proposed “Right to Die” Law is Lame

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New York’s Proposed “Right to Die” Law is Lame We don’t have a choice to be born into this world, and until recently people were not even given the legal right to leave it on our terms. People helplessly watched their mentally competent loved ones physically suffer during their last few months of life with no right to end their pain. And while society’s opinions regarding more liberal end-of-live options changed long ago, countries and states have only recently passed laws regarding a human’s right to face their death on their terms.   After a moral grudge match between two diametrically opposed philosophies, in 2025 New York’s assembly finally pushed through a right  to die bill, which languished for months,

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No Country for Old Men: Don’t Name an Elderly Executor or Trustee

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No Country for Old Men: Don’t Name an Elderly Executor or Trustee   While I don’t have a lot of new material to share during my first consultation with prospects, a popular one-liner I use is “You’re not old until you are 92.” And while Christie Brinkly will be hotter than your college girlfriend and Chuck Norris will still be kick blasting 2x4s when they are nonagenarians, EVERYONE ELSE in their 90s is OLD. And being elderly and an Executor or Trustee can be a bad combination for both fiduciary and beneficiary alike.   In a world where we speak in real time with people 10,000 miles away, transfer millions of dollars with a tap on our cellphone, and travel

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ANOTHER Reason Wills are Cruddy: Testamentary Trusts

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ANOTHER Reason Wills are Cruddy: Testamentary Trusts   Yep, I’m here to bash on New York Probate and Wills again, so if you love large legal fees, Court intervention and long waits for unnecessarily complex services, you may want to start watching your favorite rerun of Better Call Saul now.   What would you say if I told you that after going through the many annoyances of Probate you may still be stuck working with the Court for another 20+ years? I’m guessing the words would be colorful, like the post credits scene of that night in college you tried Jello shots. Yes, when you use a Will to protect assets you transfer to other friends and family members, your

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 TREAT YOURSELF: Order Extra Death Certificates

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 TREAT YOURSELF: Order Extra Death Certificates   Sometimes the only good thing to come from a person’s death is the money they leave to others. So why do so many families get gun shy spending a few extra dollars for what is arguably the most important document of that person’s post-mortem affairs? It’s totally normal, and always to your benefit, to order many more Death Certificates of your departed loved one than you think you will need, preferably sooner rather than later.     Death Certificates Transfer Everything   Aside from joint accounts, you cannot transfer any property from a deceased person’s assets without a valid (and usually original) Death Certificate. Times you will likely need a Death Certificate to

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Pregnant and Brain Dead: How to Make Your Living Will Effective

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Pregnant and Brain Dead: How to Make Your Living Will Effective     The heart wrenching story of Adriana Smith exhibits both the legal limitations placed on Living Wills, and the impossibility of planning for every potential end of life decision we may have to face. Adriana, aged 30, went from having headaches one day to experiencing deadly blood clots in her brain the next morning, leaving her brain dead. To add to this tragedy, Adriana was well into her first trimester of pregnancy and under Georgia state law could no longer have her life support terminated due to the state’s abortion laws (and no, this article is not going to discuss abortion law, no no no). And while Adriana’s

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When Bill Met Jordan: Does Dad Really Need Protection From Himself?

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When Bill Met Jordan: Does Dad Really Need Protection From Himself?   It sounds like the most exhausting romcom script a Hollywood agent has to read since the script where Adam Sandler tried to date Jennifer Aniston for a seventh movie: Aging, successful NFL coach is on a flight, sits next to college cheerleader, orders her a Cherry Mojito, and every category of “journalist” gets a seat at the dinner table. Cheerleader (starring Jordan Hudson) starts dressing scantily and acting like a boss, Coach (played by Bill I’m-Still-Pinching-Myself Belichick) is allowed to visit her dorm room and stream Netflix and stuff. Tabloids and families shriek “Dad is falling under the spell of Young Girl,” Young Girl exerts more influence, buys

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PROTECT YOUR MONEY BY FREEZING YOUR CREDIT NOW

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PROTECT YOUR MONEY BY FREEZING YOUR CREDIT NOW   Your personal financial information is worth stealing. And it is also worth defending. The unfortunate truth is you cannot stop your identity from being stolen, but you can still protect your credit and money when your identity is stolen.   We all go out of our way to defend our Social Security Number and credit card information, we do not answer phone calls from Wichita or Biloxi or Chevy Chase (the place and the person), and we uncontrollably yell at ourselves with crazy eyes in the mirror every time we open an email attachment from a suspicious address. Sadly, while we are doing everything we can to protect our financial information,

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Don’t Let Aunt Mildred’s Photo ID Expire

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You will need valid photo identification for the remainder of your life. From signing legal documents to opening new bank accounts, government offices and financial organizations require valid picture identification to legally transact business. So it is concerning to learn that most elderly individuals do not have any valid photo ID, and downright frustrating to realize this lack of legal photo identification can cost families tens of thousands of dollars during the last years of their loved ones’ lives.   As we age, our photo identification expires and is not renewed for mostly predictable reasons: People no longer plan on traveling so they do not renew their passport, they move in with a family member or to an assisted living

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Living Wills in New York May be Useless

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There are few rational reasons to having a Living Will in New York, almost no legal benefits to having one, and Living Wills may cause more confusion than guidance in your final days of life. There are several misperceptions concerning what a Living Will actually is. For starters, the very name “Living Will” is a misnomer: It is neither a living document (because it discusses your desire to have someone “pull the plug” on life sustaining measures), nor is it a will (a document which distributes property upon your death). Some people refer to this document as an “Advanced Directive”, but I am pretty sure the Advanced Directive is a Star Trek term regarding Captain Kirk’s alien kissing fetish or

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Chadwick Boseman: Why (I Think) He Didn’t Have a Will

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We view one measure of the tragedy experienced by another person’s death based on the age they died. So the passing of Chadwick Boseman at age 43 was in some ways more saddening than the recent passing of Sean Connery who was 90 (especially if you also consider Connery’s painfully-candid interview with Barbara Walters which, if you haven’t seen it, may also make you a little less saddened by his passing). Of course, we can also view that level of tragedy by that person’s estate planning, or lack thereof, and the media certainly jumped on the fact Boseman died without a Last Will and Testament. But based on a string of unfortunate circumstances and facts not reported by the media,

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Should I Change My Tax Planning Before the Election?

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Biden, Trump, McConnell, Pelosi, who will win? Does a “Blue Tide” really mean more taxes on you? And if there is a Democrat trifecta in the Administration and Congress, what are they going to do with taxes? Do you secretly want to see Chris Cuomo fight Tucker Carson in a steel cage match to determine the winner of the 5th Congressional District? What can you do to protect your assets now!??!   My take: Who knows, so do not rush to do anything dumb. Betting on who will win elections and basing tax planning on assuming what policies the not-yet-winners will follow has proven time-and-again to be a waste of brain power. Some of the worst tax savings strategies have

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On My Second Marriage…with Children from My First

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I’ve got news for half of you out there: You are going to get divorced (or are happily already divorced, he didn’t deserve you anyway). Approximately 50% of New York couples I meet have been divorced and most are on their second (and sometimes third) marriage. The desire to take care of one’s spouse, especially the spouse that spent her “golden years” with you sounds fair: While your first spouse was there for you during some of the most active years of your life – i.e. back in the days you could order dessert without blowing up like a balloon – they are not there for your aging years when gravity finally takes its toll out on your physique. But hey: You

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Hey, Mom & Dad: No One Wants Your Stuff

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No one wants your stuff after you die. Your restored love seat from 1894, your 3rd generation silverware and fine china dining set, your mud-stained Jimi Hendrix t-shirt from the Monterey Pop Festival, these cherished items that gave you cherished memories and a sense of purpose on this planet are little more than garbage and a hinderance in the eye of other people. So why is it some people go to such great lengths to leave certain items of personal property to specific individuals? Case in point: I met with a couple who squabbled amongst one-another how to split up the family artwork. These people were not art collectors, they were average Joes and Janes who on a whim bought stuff

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You Don’t Really Want an Asset Protection Trust

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I get a lot of calls from people asking if I can set up an Asset Protection Trust for them. These people usually owe taxes or child support, are contemplating divorce, have recently been the responsible party in an accident or injury to someone else, or anticipate their risky business practices will lead to lawsuits in the future. Despite what they may think, most people in these situations do not want their property owned by an Asset Protection Trust. Asset Protection Trusts are permitted and created in a handful of states (currently 16) such as Delaware, Nevada, Ohio, Alaska and Rhode Island. Trusts created in other states do not have the same level of protection. The idea is that you

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Thinking About Divorce? Sign Your Will First

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Unless there is a prenuptial agreement stating your husband or wife gets nothing when you pass away, if you are married when you die your spouse often has several rights to your estate. Some states, such as New York, entitle your spouse to at least 1/3 of your gross estate even if you leave them nothing, and if you own property with them jointly they get all of that property when you die. And even worse, if you don’t do any estate planning your spouse may be the sole beneficiary of your estate. So if your marriage is failing I suggest that you fire the first shot at your partner and disinherit them before you file for divorce. For people

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Landlords: Beware of Old, Loner Tenants

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New York landlords can have a lot of problems with older tenants. Not only do older tenants often have stabilized rents which leave the landlord with a 75% haircut on the rent they collect, older tenants also tend to call in more complaints against their landlords. And just to stick it to their landlord one last time, older tenants often make it impossible for the landlord to re-lease the apartment for months after their deaths. I know, crying for landlords is like crying for the football fan at the Superbowl because he is watching from a luxury box on the 40-yard line instead of the 50 yard line. And I am probably not going to earn a lot of street

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Don’t Piss Off Your Trustee

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A colleague of mine contacted me about a legal issue she was dealing with. Her client had created an irrevocable trust for tax minimization purposes, named his brother (a US citizen) and his sister-in-law (a Canadian citizen) as Co-Trustees, signed the Trust and transferred a life insurance policy to the Trust. For some reason, in the brief period between signing the trust and mailing it to the Co-Trustees, the client succeeded in royally pissing off his brother to the point of being told he would rather eat cold rice (in actuality, he was told something far less palatable) than serve as his trustee. Just to add to this problem, the client had already applied for a Tax ID Number for

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Dead Before His Time: Kobe Bryant and His Possible Estate

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I remember being a college student when I first saw the future phenom of the Los Angeles Lakers play for the first time. He was 16 years old, grew up in Italy, seemed like a good kid, and his relentless drive to win was only equaled by his controlled contorting drives to the basket. I lived in Southern California when Kobe, Shaquille O’Neal, and a host of great supporting players won the Threepeat NBA championships of the 2000s. It was a well-known fact that Bryant’s Give-ME-The-Ball style of play, insistence on taking impossible shots and general separation from his colleagues made him incredibly unpopular with his teammates, but he sunk the big shots and the endorsements came pouring in. Kobe

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Some of the Many Reasons Estate Attorneys Should NOT Work with Citibank

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While I have made sweeping generalizations that corporate trustees will take money from you faster than hitting after you draw 17 in Vegas, it’s pretty rare that I overtly criticize a particular financial institution in my blogs. But since I can’t hide my frustration anymore (and since proving libelous behavior requires a written statement to be untrue, which none of the following is) I feel it is time to send out a warning to my Estate Planning and Elder Law attorney colleagues: Do NOT work with Citibank, and tell your clients not to, for the following reasons: The Inmates Get the Keys to the Asylum: Citibank allows their desk clerks to review your legal documents and make their own assessment

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When “Transfer On Death” Accounts Go Bad

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If you have ever had to deal with a complicated or contested Probate over a family member’s Will, you know that a lot of your problems would have been avoided if funds had instead been held in Transfer On Death [“TOD”] accounts: While Probating a Will requires a lot of court paperwork, time, and the cost of paying an attorney to help navigate through the proceeding, TOD accounts transfer as Operation of Law assets, meaning all the beneficiary of the account has to do is show up with an original death certificate. But sometimes TOD accounts are not properly set up, cause confusion or secrecy where none was desired, or end up being transferred to people you don’t want them

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Your Inherited IRA Just Got Nerfed

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Every few years the federal government passes last-minute legislation that totally messes up your estate plan. On December 20, 2019 President Trump signed Congress’s “Setting Every Community Up for Retirement Enhancement Act of 2019” into law. On top of the fact the government paid a 12 year old to sell the rights to his treehouse password in order to create a nitwitty acronym, the “SECURE Act” makes radical changes to how your post-mortem beneficiaries receive your retirement plans that might actually make you feel less secure. When your parent, family or friend dies and leaves you their IRA account you use to receive an “Inherited IRA”, meaning the original owner’s name remained on the account, but the account was change

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A Legal Magic Trick: Revoking Irrevocable Trusts

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The world changes, and so does our family, friends and charitable organizations. And we do too: We start to care more about relationships than money, health instead of inebriation, and sometimes come to an understanding with those people we disagree with. However, estate planning benefits do not always lend themselves to changed circumstances, so if you want creditor protection, government benefits, estate tax savings or the ability to control your family’s inheritance “from the grave” you usually need an irrevocable trust, I.e. one you cannot change even if you desperately need to change the documents. When you create certain irrevocable trusts, you cannot modify them. These trusts are (typically) either the trustee or the beneficiary but never both; you may

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Getting Divorced? Leave Children’s Life Insurance to a Trust

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As a member of the First Spouse Turned Demogorgon Club, I can tell you with hindsight that divorce can be a wonderful thing: No more arguments, no more awkward Thanksgivings with creepy in-laws, no more washing the dishes during prime football hours. But at the same time, divorce is almost never positive during the initial process, self-doubt and anger consumes you, and (ultimately) you will have to deal with financial matters, particularly if you have minor children. And when child support or maintenance is in the picture, your former best friend is going to want to make sure that cool hard cash is still there if you pass away during the payment period. So, purchasing life insurance to cover your

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What is a Fair Executor Commission?

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When we used to go out to dinner with my grandfather, he would always put some of his food on my plate. It wasn’t that it was cold or not tasty (though his love affair with tripe was engaged in by him and him alone), the thing was that it wasn’t what I had expected, the food that was placed on my plate was not always the part I would have preferred, and it always got entangled with my own eating affairs (I.e. the mash potatoes). Eating other people’s leftovers is often an unsavory task, but it can be about 1 gazillion times more palatable than having to deal with another person’s estate. Sometimes the deceased person was a hoarder

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Is There Any Reason NOT to Do a Medicaid Trust in New York?!?!

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Many aging individuals appreciate how much work they have done through their lives, how much risk they took, and how they were somehow able to save up enough money to live in retirement for over 20 years. Then, without warning, they have a stroke, or a fall, or are diagnosed with dementia, and it becomes clear to them that their aging health issues can erase their entire net worth in a mere few years. The family then finds out that receiving home care Medicaid is pretty easy, but to protect family assets from Medicaid nursing home care benefits requires you to be indigent for at least 5 years. And (unfortunately by predictably) the family home was never transferred or properly

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The Many Risks of “Deathbed” Estate Planning

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I can appreciate that planning for your own demise years before your death is not as exciting as planning your next K-Pop karaoke face-off (or any other activity imaginable for that matter). Yet many people fear death so much during their healthy and convalescing periods that they take no estate planning actions whatsoever in the hopes that ignoring this 12,000 pound gorilla will make it just go away. It doesn’t, so many estate planners are – frankly too often – called in during a new client’s final living days to draft their Will, create and fund trusts, or update beneficiary designation forms. These last-ditch “Deathbed” Will signings do not achieve their desired end result an inordinately-high amount of the time

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Why Jeffrey Epstein’s Trust Only Adds to the Murder Conspiracy

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While America’s criminal justice system does not judge people to be guilty until proven guilty (even though it has no compunction with adjudicating innocent people as being guilty), Jeffrey Epstein sure does look like a bad, bad dude. The “Pimp of the Rich and Famous” would have been charged with human trafficking, statutory rape, prostitution, and likely many more demented crimes which thinking of would cause most decent people to throw up in their mouth a little bit. His trial and any plea bargain could have been an enormous bombshell that would have ruined at least a few people with HUGE shoes to fill. It was in this context that Jeffrey Epstein somehow hung himself from a five-foot high bunkbed

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Damian Hurley: Why Minimizing Estate Taxes is Not Always a Good Thing

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For decades estate attorneys have been driven by a prime directive, a primary motivating cause that overcomes all other client desires: Minimizing estate taxes. I believe this is a huge mistake, and a recent court decision highlighted by a stern millionaire patriarch, celebrities, a free-living playboy, and an irrevocable trust shows us why. Today it takes a decent amount of money ($11.4 million or more) to face a federal estate tax when you die, and there are also certain irrevocable trusts, including GRATs and GRUTs, that further minimize or eliminate estate taxes. So, for many of us this article is not relevant, but for those who it is, it should come as no surprise that estate attorneys have traditionally focused

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Wills: What Do Executors Get Paid in New York?

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When your Will is probated your Executor is entitled to receive a commission for their work. And while you can define what that commission is in your Will, most people choose New York’s statutory guideline for that commission (the concern is that if the fee is too low no one will want to be Executor, since you can’t force someone to do the job). In New York, that statute is created by the Surrogate’s Court Procedures Act, Section 2307, and it has a lot of juicy details that differentiate it from other state’s more-streamlined statutory commissions: Keep in mind that any assets which pass through a living trust, a joint account, or assets passing by “operation of law” (such as

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Fifteen Common Mistakes – Probate

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In February 2019, Dan was privileged enough to contribute a video course for Lawline.com about “Fifteen Common Mistakes, and Simple Suggestions to Avoid Them, for a Future Smooth Probate.” The video is an overview of the fifteen most common mistakes made when estate planning. He will walk through all the potential obstacles an attorney may face if he or she is familiar with drafting wills, but has not yet experienced many of the nuances associated with probate. Topics to be discussed include revoking past wills, fixing mistakes after a will has been executed, general bequests, naming beneficiaries, survivorship provisions, and more. To watch the entire video presentation, please click here. Or below are three clips from the presentation. Importance of

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An In-Depth Look at Trusts

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In February 2019, Dan was privileged enough to contribute a video course for Lawline.com about “An In-Depth Look at Trusts: Answers to Your Most Commonly Asked Questions” The video is about how Trusts are now the primary way to manage the complexities of government benefits, creditor issues, taxes, and beneficiary protections. Trusts allow us to preserve family assets and do so without court oversight. But what kind of trusts are appropriate in which circumstances? How do we properly title trust accounts and beneficiaries designation forms? And how do we maximize tax deferral, creditor protection, and Medicaid-using trusts? This program, presented by estate planning attorney Daniel Timins, will answer all these questions and more. Additional topics to be discussed include testamentary

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What You Can Do Now to Help Your Parents Apply for Medicaid

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You may have heard it before: Someone’s elderly parent or grandparent breaks their hip or had a stroke or any one of the thousands of things that can happen to us when we start drinking Ensure for lunch, and now the family needs to apply for Medicaid for that person’s long term care needs. But the family members are having all types of trouble finding the necessary documents that Medicaid requires, such as marriage certificates, identification, proof of Social Security, tax returns, copies of all financial statements, the list is pretty lengthy. So, what can your parents do now to help you apply for Medicaid for them at some point in the future? 1.     Draft a Power of Attorney: Having a

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How to Secretly (and Correctly) Purchase Real Estate with Trusts and LLCs

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Privacy is an almost-forgotten concept in our world. Perhaps we are trying to avoid being found by a greedy family member or being served in a vexatious lawsuit by a degenerate loser. Maybe you are a celebrity or media personality and don’t want your fans – or detractors – waiting outside your building or driveway (I love all of my adoring fans, but I don’t want them knocking on my front door before I start binging Punky Brewster reruns on Netflix). Maybe you are a foreign diplomat trying to secretly create a safe haven for your money and yourself in our wonderful country in case you piss off the head of your political party. But real estate records are public

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When Should I NOT Act as Mom’s Executor?

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When your mom passes away with a valid Will and property being transferred by that Will, the Will is submitted to the Court who appoints an estate representative to wrap up her final affairs. This person or company – almost always named in the Will – is known as the Executor, and has the ability to do everything that your mom could do during her life: Collect her assets, pay creditors, review all of mom’s financial records and statements, file income tax returns, order her medical records, distribute her property as mom’s Will states, and even clean out mom’s closet (which she likely neglected to do before she died since, you know, she’s now dead). We say an Executor “steps

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The Battle of Winterfell: An Estate Attorney’s Payday

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After turning down family plans for 70 Sunday nights, waiting more than 70 weeks for a new episode, and using nearly 70% of your brain’s computing power remembering all of the interpersonal relations in Westeros (could Hot Pie the baker actually be the Prince That Was Promised?), Game Of Thrones is almost over. But we are told the best is yet to come next Sunday when the Battle Royale Extraordinaire between the living and the Army of the Dead face off in Winterfell. And so, with only a few episodes left, facing what will likely be the greatest CGI human slaughter of all time, I am left wondering ONLY one thing: Why wasn’t anyone in Winterfell drafting their Will? If

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Unsigned Wills Are Meaningless (and Photocopies are Not Much Better)

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I like to remind people that the laws regarding modern U.S. Wills, not only predate the founding of the U.S., but actually predate European discovery of the Western Hemisphere. In Olde England in the city of York having a signed, witnessed piece of paper instructing how you wanted your property to be distributed after your death was often the only way to ensure your desires were fulfilled. Original paper mattered back then – there were no other recording devices or accounts with beneficiary designations – and witnesses would later attest to the fact they had seen you sign said paper instead of someone else. And original, signed paper still matters for several legal documents today, including your Will. The issue

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Your Wills & Trusts Should Require Your Children to Have Prenups

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After you die there are way too many evil forces that can take a swipe at gifts to your children. Credit card companies may receive unpaid debts from your transfers to your children; the street level dope dealer may have his next good run with your child as his primary client; even the government may take much of the funds if your child becomes disabled. But for some reason, nothing annoys a parent more than knowing their soon-to-be-ex-son-in-law Chad is going to get a hold of your bequest to your daughter Becky (and now your son Bryce too, if that’s how he rolls, since greed has no sexual preference). All Wills and Trusts should have substance abuse provisions, spendthrift provisions

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Disabled with Cash: When to Use ABLE Accounts

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In 2014 the federal government passed legislation allowing the creation of “Achieving a Better Life Experience” [“ABLE”] accounts. Much like Supplemental Needs Trusts, these accounts are permitted to hold funds for disabled individuals that would otherwise leave them with too much financial resources to maintain Medicaid and Supplemental Security Income [“SSI”]. The main benefits of ABLE accounts are that they are self-created and inexpensive: No legal fees, no on-going trustee commissions. The disabled individual, his family members or his Power of Attorney may create ABLE accounts, as may a Trust created by another person. And while ABLE accounts can pay for health-related expenses, any money that is used for food and shelter will not result in SSI being reduced by

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Codicils and Trust Amendments May Burn Your Estate

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Hiring an attorney has been obnoxiously expensive since the first time a guy’s donkey backing into another guy’s mud version of today’s tiny houses: You tend to want a person or document that best insures you are going to get things done your way, but good results cost a lot of money. So, it is not surprising that people prefer to change their Wills using Codicils and Trust Amendments instead of redrafting the entire original document. I have concluded this is often a mistake and now believe clients should spring for the costs of redrafting their entire document. Codicils are quick changes to existing Wills, and only modify the portions they are intended to change (and maintain the remaining contents

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