New York Probate Lawyer Blog

September 5, 2012

New York Estates are Controlled by Appropriate State Statutes

The Administration of the estate of a decedent requires the immediate determination as to the State law that controls estate settlement. Usually the domicile of a decedent determines which State laws (i.e., New York or New Jersey) will be applied to many of the issues concerning the estate. The determination of domicile can be a complicated matter that involves a review of which State the decedent considered to be his or her home and the contacts the decedent had with the State such as filing of tax returns or the issuance of a driver’s license.

Determining a decedent’s domicile and the proper State law to be applied can be important since the rules regarding Will execution, spousal rights, kinship, estate litigation and other substantive matters can vary from state to state. In this regard it is generally the rule that a Last Will can only be filed for probate in the State and locality where the decedent was domiciled at the time of death.

It should be noted that domicile may not only determine the proper State law to be applied in estate settlement but that it may be that a person’s domicile might be in a country other than the United States. In such cases, the laws of the country of domicile may need to be utilized to settle an estate.

New York Estate Lawyers are aware of the many issues that may arise where there is uncertainty or a potential conflict concerning the proper law to be used regarding an estate or beneficiary rights.

The New York Probate Lawyer Blog has had recent posts regarding disputes involving celebrity estates such as Adam Yauch of the Beastie Boys and the co-creator of the Superman character.

Celebrity estate problems can also arise regarding domicile and residence. With regard to domicile and the selection of appropriate State law, a United States Court of Appeals in California on August 30, 2012 ruled that heirs to the estate of Marilyn Monroe could not inherit rights to her publicity because she was domiciled in New York at the time of her death and such posthumous rights are not recognized by that State. As noted in an article in the Daily Report by Amanda Bronstad on September 5, 2012, the heirs unsuccessfully claimed that Marilyn Monroe was a resident of California.

The estate planning and probate and administration of a New York Estate requires that domicile and residency be reviewed very carefully. Individuals may have homes in many States or even countries. When a person dies, the Surrogate’s Court for Queens Probate, Manhattan Probate, Long Island Probate or Brooklyn Probate, as well as all other State counties, is going to review the decedent’s domicile and residency very carefully even before accepting any papers for filing. As can be seen from the Marilyn Monroe case, very significant rights can be affected by a determination of domicile.

Additionally, domicile can determine whether an estate is subject to State estate taxes. States such as New York impose an estate tax on local residents while other States do not have an estate tax. The cost to an estate for taxes alone is an important reason to investigate and determine a person’s domicile as part of the estate planning process.

August 29, 2012

Estate Administration In New York Can Be Complicated By Disputes Over Asset Ownership

by Jules M. Haas

The fundamental goal of an Executor or Guardian administering the estate of a decedent or Guardianship funds is to collect and protect assets and distribute them on behalf of the appropriate beneficiary. The determination of the identity and value of assets is often very complicated. To begin with, assets may be unknown to the Executor, Administrator or Guardian and they must search through financial records such as tax returns and bank statements to discover necessary information. It is not usual for a fiduciary to discover an asset by finding a bank or brokerage statement that is delivered in the mail.

Not only is discovering assets a challenge during estate settlement, the ownership of the asset may be in dispute. For example, a decedent or an incapacitated person may be the owner of a small business with business partners. If the business records were not properly maintained a dispute may arise as to the percentage or share of the business that was owned by the decedent or incapacitated person. Disputes concerning the ownership of assets can have significant ramifications. First and foremost such ownership will directly affect the amounts that can be distributed to the beneficiary of the estate or Guardianship.

Also, whether an estate has a certain value will impact upon whether estate tax returns must be filed and the amount of estate taxes that must be paid. At present, a New York Estate Tax Return must filed if the value of an estate exceeds $1,000,000. The Federal Estate Tax filing requirement is $5,000,000. Additional estate tax issues such as a marital deduction may be impacted by the nature and extent of assets.

Queens Estate Lawyers, as well as estate lawyers throughout New York, work closely with their clients who are fiduciaries to ascertain and collect assets of an estate. The same holds true for New York Guardianship lawyers.

Estate litigation that generally occurs in the Surrogate’s Court may involve many issues regarding property and assets. A recent post in the New York Probate Lawyer Blog on August 24, 2012 discussed a case where the Last Will of Adam Yauch, a founding member of the Beastie Boys, faced probate and interpretation issues due to a handwritten addition to the Will.

Another recent case involving estate assets involves a dispute regarding rights claimed by heirs of one of the co-creators of the Superman character. As reported by Ted Johnson in Variety.com on August 14, 2012, “Ruling Near in Superman Rights Battle”, the dispute between a nephew of the co-creator, who is also the estate executor and Warner Bros. is to be decided by a U.S. District Court Judge. While the controversy concerns the interpretation of a prior settlement agreement and copyright law, the outcome will have a tremendous impact due to the apparent value of the Superman promotional rights.

The best course is for individuals to ascertain all of the assets that may be part of their estate and to clarify and resolve all issues regarding ownership rights as part of their Estate Planning. As can be seen from the recent situations discussed above, this is not always accomplished so as to avoid estate contests and controversy.

August 22, 2012

Late Beastie Boy’s Will Offers Estate Planning Lessons for New York Public Figures

by Jules M. Haas

On May 4, 2012, Adam Yauch lost his battle with cancer at the young age of forty-seven. Sadly, this type of thing is not uncommon in New York, where cancer claims many lives each year. What makes this case more notable than most in an estate planning context is that Adam Yauch lived an alter ego for most of his life, where he was better known as “MCA,” a founding member of the Beastie Boys. The hip-hop trio sold millions of records over the years and amassed a small fortune from record royalties, tour proceeds, and other sources.

Adam Yauch had the foresight to consult an estate planning attorney about drafting a Will. Yauch named his wife, Dechen, as Executor, and the Will was filed in the Manhattan Surrogate’s Court earlier this month. The Will contained many standard provisions about how to distribute Yauch’s assets.

As reported by Deborah L. Jacobs in Forbes.com on August 13, 2012, Part of Beastie Boy Adam Yauch’s Will, Banning Use of Music in Ads, May Not Be Valid, Yauch’s Will differs from most ordinary Wills since it directed that his image or name could not be used for advertisements. Yauch added language by hand to the Will after it was signed to provide: “in no event may my image or name or any music or artistic property created by me be used for advertising purposes.” Celebrities and other public figures may want to prevent others from capitalizing on their fame after they die. Advertising professionals recognize that a public figure’s death often creates a resurgence in public interest surrounding the individual. A recent example is Michael Jackson’s estate which has made millions of dollars by promoting his image and music after his death. However, there are instances where fame can be exploited to the extreme. All else being equal, Yauch’s inclusion of the above provision appears intended to prevent any such behavior.

The problem with the particular provision in Yauch’s Will is that it is handwritten. New York frowns upon handwritten Will provisions because of the view that a handwritten Will provision is more likely to be forged, altered, or otherwise fraudulent. Yauch’s Will is made even more problematic by the fact that the majority of the document is properly typewritten and executed, while the above posthumous advertising provision was added in pen after the execution of the rest of the document. The validity of the handwritten provision may result in Estate Litigation that may prolong the probate of the Will. The estate law in New York provides that handwritten additions to a Will after it has been signed are invalid. Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements: “provides in paragraph (a)(1)(B) that “No effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator, or to any matter preceeding such signature which was added subsequently to the execution of the will.”

Additionally, as pointed out in the Forbes article, the additional handwritten language created confusion in interpreting the extent of the restriction on advertising. In many cases where Will provisions are Contested, a proceeding for construction or interpretation of Will language is required. New York Estate and Trust attorneys are familiar with these proceedings but they may require extensive Court process.

The lesson to take away from the Yauch case is that New York and its boroughs are home to countless celebrities and other public figures, perhaps second only to Hollywood. As such, estate planning attorneys in New York’s boroughs are more accustomed than most to drafting special Will provisions designed to protect a person’s likeness, ideas, or other artistic property. The same attorneys know that the needs of their public figure clientele are constantly changing and intensely private, requiring the highest degree of confidentiality and legal skill.

Had Adam Yauch thought to investigate the integrity of his Will before his death, his Manhattan estate attorney may have discovered the dangers of including handwritten provisions and explained to Yauch that these provisions might end up having effects that he did not intend. If you are a public figure or celebrity who intends to have a Will executed in New York, or even if you are as far from the spotlight as possible, it is always a good idea to make sure your estate planning papers clearly reflect your intentions.

August 15, 2012

New York Wills and Trusts Require Careful Selection of Executors and Trustees

by Jules M. Haas

Executors, Trustees and Administrators in New York are commonly referred to as fiduciaries. Fiduciaries are the representatives of a trust or estate that are authorized by their appointment to act on behalf of the trust or estate.

The New York Probate Lawyer Blog has had many posts discussing actions of fiduciaries such as collecting assets, paying bills and taxes and making distributions of property. Whenever a Queens Executor or Manhattan Trustee or a fiduciary in any New York county performs his or her duties, they are required to follow and adhere to certain statutes and guidelines. New York Estates, Powers and Trusts Law (EPTL) Section 11-1.1 is entitled “Fiduciaries’ powers”. This statute sets forth many of the powers that are given to fiduciaries which include powers to: invest estate or trust property, manage or sell real estate, repair property and contest or settle claims. Generally, the powers provided by statute are quite extensive and a fiduciary is entrusted with using his or her judgment to exercise these powers in good faith. The statute also provides in paragraph (b) that the Court or the Will or Trust document can limit or provide contrary provisions to those stated in the statute.

As a New York Estate Lawyer, I have found that it is important for fiduciaries to fully understand and appreciate the responsibility that goes along with their appointment. Similarly, Estate Planning must include a thorough consideration of the qualifications of fiduciaries who are to be named by a Last Will, Living Trust or other document.

Acting as a fiduciary is not always easy and can involve the necessity of having to make difficult business decisions regarding an estate or trust asset. For example, issues may arise as to whether or not to sell shares of stock or real estate and at what price to sell. Investing assets, particularly in today’s volatile economic climate, is filled with uncertainty. The recent case of Matter of Boyer, decided by Surrogate James Pagones of the Dutchess County Surrogate’s Court on May 31, 2012 and reported in the New York Law Journal on June 26, 2012, shows some of the problems faced by fiduciaries.

In Boyer there were 3 trustees of a trust created under a decedent’s Last Will. Two of the three trustees desired to sell the decedent’s real estate which consisted of a farm. The 2 trustees also desired to evict the decedent’s friend from the property. Rather than move forward with these plans on their own, the trustees petitioned the Surrogate’s Court pursuant to Surrogate’s Court Procedure Act (“SCPA”) Section 2107, for direction from the Court.

SCPA 2107 is entitled “Court may direct as to value, manner and time of sale of property and give advice and direction in extraordinary circumstances.” Court’s are typically reluctant to substitute the Court’s judgment for that of a duly appointed fiduciary. Therefore, the Court in Boyer declined to advise the trustees as to whether and at what price the property should be sold and, instead, found that it was the trustees’ duty to exercise their own business judgment in deciding these issues.

Selecting the proper fiduciaries that will protect trust and estate property and beneficiaries’ interests is an important goal in estate planning. Trust and estate attorneys in New York help their clients in the process of selecting fiduciaries as well as providing guidance for fiduciaries who face tough administrative and estate settlement decisions.

August 9, 2012

New Yorkers Have Options When Leaving Gifts to Minors

by Jules M. Haas

New York estate planning lawyers are routinely consulted for advice as to the best way to give property or substantial sums of money to minor children. The trouble with such a gift is that a minor child typically cannot fully enjoy it until he or she reaches the age of majority. In New York, as in many jurisdictions, that magic age is 18.

To say that a minor child cannot fully enjoy such a gift is to say, essentially, that the world was not designed for minor children to be in control of valuable property or substantial sums of money. For example, banks and investment brokerages usually will not allow minors to have the autonomy to administer account funds as they wish. Similarly, minors cannot enter into a real estate contract should they wish to sell a piece of real property left to them as a gift.

Most gifts to minors are subject to implicit limitations on access and use because they are accomplished by way of a trust. The problem with a trust in New York is that it is subject to oversight by the Surrogate’s Court. Additionally, a trust can create a number of tax, accounting, and legal side effects that may dissuade the gift donor from making the gift in the first place.

Fortunately, New Yorkers have options when they consult a Manhattan estate planning attorney. One such option is to make a gift under the Uniform Transfers to Minors Act (UTMA). The Act, codified in the New York Estates, Powers and Trusts Article §7-6.1 – 7-6.26, sets out a system in which the intending donor makes an irrevocable gift to a Custodian for the child. In practice, the custodianship arrangement is accomplished with language transferring property or money to any adult or trust company “as Custodian for” [the named minor] “under the New York Uniform Transfers to Minors Act.” The gift should spell out that language so as to distinguish the gift from the creation of a trust or any other type of arrangement, and also to direct all interested parties to the particular body of law that governs the arrangement.

Donors should take care to designate a prudent and responsible entity to carry out the custodial duties. Custodians under the Uniform Transfers to Minors Act are not merely guardians of the property or assets, but rather are active participants in managing and growing the gift assets for the benefit of the named minor child. Custodians may invest the liquid gift assets or decide to sell the real or personal property entrusted to them if the Custodian decides that doing so would be in the best interest of the minor. Custodians are held to a reasonable prudence standard; they must exercise a standard of care “as would be observed by a prudent person dealing with property of another.” Further, Custodians are entitled to reasonable compensation and reimbursement for expenses. They may be required to account for the gifted assets in court proceedings, and so the Custodian must keep accurate and detailed records of all transactions.

On its face, a donor’s gift to a Custodian for the benefit of a minor child may appear to have many of the same characteristics of a trust. However, a Bronx trusts and estates attorney can explain the fine nuances and help evaluate whether a gift under the Uniform Transfers to Minors Act is the best way to see that your property and assets are distributed to the persons you wish in the manner you wish.

August 3, 2012

New York Estate Planning May Involve Leaving a Relative Out of the Will

by Jules M. Haas

Clients sometimes consult a New York estate planning lawyer in order to investigate the possibility of “writing someone out” of a Will. In the eyes of the law, this process is called ‘disinheriting’ the person. Disinheriting essentially removes any rights or entitlements that a person may expect to receive upon the death of the testator. It is a right possessed exclusively by the testator and one that ordinarily may not be challenged. Sometimes challenges do occur in the form of a Will Contest or Contested Will where a distributee (i.e., next of kin) or other interested party may contend that the Will is invalid. As previously discussed in the New York Probate Lawyer Blog a Will may be contested on various grounds such as Undue Influence, Lack of Testamentary Capacity or Improper Execution.

The person drafting a Will may arrive at the decision to disinherit a relative or other interested person for any number of reasons. Some of the most common reasons to disinherit a person are: (1) the testator no longer maintains a relationship with the person; (2) the testator does not condone the life choices the person has made or is making; (3) the testator feels that the person has sufficient financial resources such that a testamentary gift would be inappropriate; or (4) the testator would rather bequeath the assets to another person to whom they had a closer relationship, or from whom the testator had received the bulk of his or her end-of-life care.

Whatever the reason, the decision to write someone out of a Will should not come lightly. Disinheriting a person often causes tremendous emotional and financial consequences, and can even make the possibility of a Will Contest more likely. After all, if someone’s assets are left, for example, to all of the surviving children except one, the excluded child is almost definitely going to feel hurt, saddened, and/or angry. The excluded child may claim that the others unduly influenced the parent to keep him or her out, which may lead to years of bitter disputes and expensive Estate Litigation.

New York Estate Lawyers are aware that all Wills, Trusts and Advance Directives must be explicit as to the terms and beneficiaries. These emotional and legal considerations are, in fact, so persuasive that when the beneficiaries of a Will do not include the testator’s spouse and/or children, New York courts sometimes find that the testator meant to have included the missing relative. This means that any document that excludes a close relative from the estate should contain clear, unambiguous language that cannot be interpreted any way other than to express the testator’s desire to have that person excluded. such language can facilitate the Probate and Estate Settlement process.

Moreover, local laws still allow certain relatives to collect a portion of the estate assets even if this language is present. For example, in New York, a surviving spouse is entitled to collect either one-third of the estate or $50,000.00, whichever is greater. This occurs even if the spouse is written out of the Will, so that the surviving spouse does not experience a significant financial burden on top of the loss of their loved one. Estates, Powers and Trusts Law (EPTL) section 5-1.1A provides extensive rules that allow a surviving spouse to take a share of a decedent’s estate (the “elective share”) even if he or she is otherwise disinherited.

August 1, 2012

A New York Alleged Incapacitated Person Cannot Be Forced to Testify

by Jules M. Haas

A New York Guardianship proceeding requires a hearing before the Court. Mental Hygiene Law (MHL) section 81.11 states, in part, that “a determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing.”

MHL Section 81.02 provides that the appointment of a Guardian must be based upon “clear and convincing evidence.” Typically, at such hearings, individuals who have had personal contact with the alleged incapacitated person (“AIP”) can testify as to their observations as to the AIP’s ability to engage in activities of daily living. Such testimony can also relate to various events that have occurred concerning the AIP such as the AIP forgetting where he or she lived or experiencing hallucinations. These types of events may indicate a loss of capacity.

The guardianship attorney for the petitioner usually calls these witnesses to testify in Court and can present other evidence in the form of documents that may show incapacity such as unusual transfer of assets. Of course the AIP has a right to oppose the petitioner’s request for Guardianship. As provided in MHL 81.11 the AIP can call his or her own witnesses, be represented by an attorney and cross examine witnesses.

In some cases, especially where there are few third party witnesses to the AIP’s activities, a petitioner may want to have the AIP testify to demonstrate to the Court that the AIP lacks capacity. By using in-court testimony, the petitioner can try and show that the AIP lacks the ability to understand or appreciate his or her medical or personal needs or is unable to demonstrate the ability to recall or handle finances. These situations have resulted in a controversy as to whether the AIP, like a criminal defendant, has the right to refuse to testify against him or herself.

The recent case of Matter of G.P., decided by Judge James D. Pagones of the New York State Supreme Court, Dutchess County on July 26, 2012, involved this issue. Judge Pagones determined that since the appointment of a Guardian resulted in the loss of certain individual freedoms and liberties, such as making medical decisions and determining where to live, an AIP cannot be “compelled to testify as a witness for the petitioner….”

When representing a petitioner in a Guardianship proceeding, particularly where the Guardianship is contested, I work closely with the client to determine the witnesses who can best tell the Court, based upon personal knowledge, about the AIP’s ability to handle their personal affairs and property management. The decision in Matter of G.P. demonstrates that a petitioner cannot rely on just presenting the AIP to the Court, but must have competent independent witnesses to meet the “clear and convincing” proof required for a Guardianship appointment.

July 26, 2012

New York Guardianship Proceedings Also Involve Payments from a Supplemental Needs Trust

by Jules M. Haas

The New York Probate Lawyer Blog has had many posts regarding issues and requirements of an Article 81 Guardianship Proceeding. These proceedings involve a determination as to whether an individual is incapacitated and, if so, the appointment of an appropriate Guardian.

The determinations that are made by the Court involve many different persons which may include the alleged incapacitated person; a petitioner (usually a family member); and a Court Evaluator. In some cases third parties are involved such as a Nursing Home, Adult Protective Services, New York State Mental Hygiene Legal Service and Medicaid.

A Supplemental Needs Trust (“SNT”) is often a critical component of the Guardianship process. In a typical situation a person who is incapacitated may be entitled to a large monetary award due to a personal injury action. Since the incapacitated person would also qualify for government benefits such as Medicaid and SSI, the SNT provides a means by which the monetary funds can be set aside for extra benefits without the loss of the governmental entitlements. In the Guardianship proceeding, the Court authorizes the Guardian to establish the SNT and to transfer the funds into the Trust thus avoiding any loss of benefits. The SNT trustees, who are also designated by the Court, then administer the trust for the benefit of the disabled person. The trustees selected are commonly the family members who are the Guardians.

Once the SNT is established, the trustees can make expenditures for such things as computers, vacations, extra care and other items which the governmental benefits do not pay for without losing the governmental coverage for other items such as medical care. A good explanation of this process is provided in a recent case decided by Justice Howard H. Sherman on April 19, 2012 and reported in the New York Law Journal on May 14, 2012 entitled Matter of Geraldine R. In this case the Department of Social Services (Medicaid) claimed that the Supplemental Needs Trust trustees did not need to obtain prior Court approval to pay for items such as a vacation, purchase of a computer, printer and television, and educational programs. The Court found that it had authority to approve these items prior to the expenditure.

In fact, it is the usual and appropriate manner for trustees of a SNT to obtain prior Court approval of their expenditures. The trustees can then avoid a later denial by the Court and the requirement that they reimburse the trust for improper expenses.

I have represented many clients in connection with Guardianship proceedings and the establishment of a Supplemental Needs Trust. These cases require a Court hearing and I work closely with my clients and their families to help them through what can be a complex court process.

July 20, 2012

A New York Power of Attorney Can Be Used to Amend a Trust

by Jules M. Haas

New York Estate Lawyers assist their clients with many types of estate planning documents such as Last Wills, Living Wills, Health Care Proxy’s, Living Trusts and Powers of Attorney.

All of these papers are generally created to work together so that a person’s estate plan and lifetime directives are clear and can be followed without complication or estate litigation. A New York Statutory power of attorney empowers the appointed attorney-in-fact to make decisions regarding various types of matters such as business or real estate matters. A power of attorney is a lifetime directive and the authority granted by the power ends at the time of a person’s death. However, decisions and actions made by the attorney-in-fact can have significant consequences after the death of the principal. For example, when an attorney-in-fact executes a deed transferring real estate, or transfers assets in various bank or brokerage accounts, during the lifetime of the principal, provisions that were made in Last Wills or Trusts may no longer be effective. This is because the assets that were meant to be transferred by such testamentary documents may not be owned by the testator in the manner anticipated when the estate plan was created.

Another potential problem is that the attorney-in-fact may use the power of attorney to amend or change some of the estate planning documents such as a Trust Agreement. This was the situation encountered by the Court in Perosi v. LiGreci, decided by the Appellate Division, Second Department on July 11, 2012. In Perosi, Mr. LiGreci had created, during his lifetime, an irrevocable trust and appointed his brother as trustee. LiGreci also created a power of attorney appointing his daughter as attorney-in-fact. Shortly before LiGreci died, his daughter used her authority under the power of attorney to amend the trust and designate the daughter’s son as the new trustee.

The Court ultimately found that the attorney-in-fact had the authority, in this instance, to amend the trust.

In view of the Perosi case, it is clear that naming a person as attorney-in-fact in a power of attorney requires serious consideration. Estate settlement and administration can be compromised by the actions of an attorney-in-fact who has the authority to change estate planning documents. It is a good idea to put precise language into trusts and other agreements defining to what extent, if any, an attorney-in-fact can amend or change these papers.

Individuals expend a great deal of time and expense in planning their estates through the use of Wills and Trusts. It is unfortunate where the actions of a lifetime attorney-in-fact can result in Surrogate’s Court litigation because these documents were changed without the testator or creator him or herself signing the amendatory papers.

A complete review by a qualified New York estate attorney is imperative so that a person’s intentions regarding estate distribution is set forth and can be implemented without modification or confusion.

July 19, 2012

New York Business Owners Need Special Estate Advice

by Jules M. Haas

Most New Yorkers spend a significant portion of their adult lives figuring out ways to accumulate wealth. At a certain age, the focus tends to shift from the accumulation of wealth to wealth protection. At a certain age beyond that, the focus shifts to how to utilize that wealth in order to ensure a secure retirement. Around the same time, the secondary focus is what will happen to any leftover assets once you are gone.

As complicated as this process is for any New Yorker, the process can be even more complicated for a New Yorker who operates his or her own small business. The primary trouble for an aging New York business owner is that his or her wealth is much harder to calculate, as much of his or her assets are likely tied up in the operation of the business.

As a result, aging business owners have two primary choices when it comes to estate planning. On one hand, they can plan to sell the business for its fair market value. This option puts the full value of the business assets in the owner’s proverbial pocket, from which he or she can set aside retirement money and carve out a plan for what happens to any leftovers at death.

In many cases, however, the state of affairs is not as cut-and-dry. Small businesses in New York are very often family affairs, passed down among multiple generations in some cases. A long-time pizzeria owner may employ some of his own children and even grandchildren, for example. When family livelihoods revolve around the family business, an estate plan that would sell the business for its proceeds just would not make much sense.

Instead, many New York small business owners choose to craft estate plans that transfer ownership interests in the business rather than a defined monetary value. After all, an ownership interest in a business can have a potentially unlimited value, even if its present interest is difficult to calculate. Additionally, the preservation of your business amongst your family members can give you the flexibility to transfer ownership subject to as many or as few conditions as you wish. Hands-on owners may wish to set out long term plans for the business even after they are gone, while others may wish to entrust the direction of the business wholly to a son or daughter.

These cases may be further complicated if some, but not all, of the business owner’s family members intend to carry on the business. For those that do, an interest in the business may be an appropriate testamentary gift. For those who wish to pursue careers outside the family business, other gifts may be appropriate. No two estate plans are exactly the same, especially ones involving the transfer of a business.

For these reasons, an experienced New York estate planning attorney can be an essential ally. Don’t entrust your personal and business assets to the laws of New York when your time comes. Make sure your assets pass precisely how you intended.
Business owners and their New York estate lawyers must be fully familiar with all of the documents and agreements that can effect an estate plan. These items include, shareholder agreements, partnership agreements, real estate deeds, commercial leases, life insurance policies and various types of retirement and pension plans. All of these papers must be fully understood so that their provisions and beneficiaries can be incorporated into the overall estate and lifetime gifting plan that is being developed.

In many instances estate administration and estate settlement can be disrupted where the terms of an estate planning document such as a trust or Last Will contradicts or is not otherwise in harmony with provisions in business papers such as shareholder agreements. A shareholder agreement may provide for the transfer of a business interest upon the death of a shareholder that is contrary to provisions put into a Last Will. Provisions in these documents that contradict one another can ultimately lead to Surrogate’s Court litigation such as Will contests or construction proceedings. Not only can a lack of good planning result in estate litigation, the operation of a profitable family business may be disrupted where there is uncertainty as to whom the new owners will be and who has the present right to make crucial business decisions.