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When actor Chadwick Boseman (who played the character of “Black Panther” in the Marvel Comics films) died in August after a four-year battle with colon cancer, he left behind a legacy of memorable roles spanning over a decade. At the time of his death, Mr. Boseman’s estimated net worth was $12 million, and it was expected that a majority of his remaining property would be transferred to his wife. Shortly after his death it was revealed that he left no will in place and thus, the disposition of his remaining property fell to the state of California.
As surprising it may seem that a successful actor (with considerable assets) did not draft a will before passing, this scenario is not unique, an estimated 68% of Americans do not have a will [1]. Recently, the coronavirus pandemic prompted an increase in estate planning, as 27% of people currently with a will created one due to concerns related to illness or death from COVID-19 [2]. Despite this uptick, the overall percentage of people without a will is troublesome and many affected families risk the hard work of loved ones being distributed in a manner opposite of the deceased relative’s wishes.
When a person dies without a will, the deposition of their property is determined by the state intestacy laws. The order of who inherits the remaining property of the deceased is known as intestate succession. In intestate succession, only property that would have been distributed by a will is applicable under intestacy laws.
Some examples of property not distributed via intestate succession:
property transferred to a living trust
life insurance proceeds
funds in an IRA, 401(k), or other retirement account
securities held in a transfer-on-death account
payable-on-death bank accounts
property owned in joint tenancy or tenancy by the entirety.
The aforementioned property will pass to the surviving owner or named beneficiary regardless of whether a valid will exists. Other property is subject to intestacy laws and will be distributed based on the relationship of the distributee to the deceased person.
A quick primer on intestate succession in New York:
| If you die with: | Result: |
|---|---|
| Children, but no spouse | Children inherit everything |
| Spouse, no descendants | Spouse inherits everything |
| Spouse and descendants | Spouse inherits the first $50,000 of intestate property, plus 1/2 the balance, the remainder is left to the descendants |
| Parents, no spouse or descendants | Parents inherit everything |
| Siblings, no spouse, descendants, or parents | Siblings inherit everything |
The intestacy laws (NY EPT §§ 4-1.1-4-1.6) may be found here: https://www.nysenate.gov/legislation/laws/EPT/A4P1 and here: https://codes.findlaw.com/ny/estates-powers-and-trusts-law/
Prudent estate planning is not just for the wealthy, it is a valuable tool for anyone to ensure that the fruits of years of hard work are not spoiled. The process may be complicated and confusing at times, but this initial difficulty should not prevent estate planning. Everyone should be able to control who is responsible for the administration of their estate and proper planning is crucial.
Our Firm has extensive experience in drafting wills and Estate planning. If you have any questions about this Legal Briefing, please contact any member of the firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.
On January 20, 2021, Joe Biden was inaugurated as the 46th President of the United States of America. Financial and legal advisors have been combing through President Biden’s proposed tax plan for months in preparation for this possibility and the direct impact it could have on many of their clients. Estate planning attorneys are no different, as there are potentially significant estate tax implications brought forth by the proposed plan that could result in the necessary overhaul of many clients’ current estate plans.
According to the estate tax laws for 2021, the federal gift and estate tax exemption amount (the amount that an individual can transfer without paying any taxes) for an individual is $11.7 million dollars. For married couples, this means $23.4 million of available exemption. In New York State, the 2021 individual exemption amount is $5.93 million, and the following years will see these amounts rise even higher as they are adjusted for inflation. However, the current laws controlling the Federal exemption amount are set to sunset (expire) as of December 31, 2025. January 1, 2026 will see these exemptions reduced by nearly 50%.
President Biden has outlined numerous potential changes he would like to make to the estate tax landscape during his administration. One change most estate planning attorneys and financial advisors note is the potential for accelerating the sunset for the current exemption amounts. President Biden has indicated that he would like to bring the exemption amounts as low as $3.5 million per individual. In addition, President Biden has also discussed potential increases to capital gains taxes and removing the “step-up in basis” provisions of the current tax code that have allowed clients numerous tax-saving opportunities in the past. Both changes could drastically impact most clients’ current estate plan.
The shift from former President Trump to President Biden should provide clients with the impetus to begin an open dialogue with their financial and legal advisors regarding the potentially shifting estate-tax environment. Many advisors may see clients making large gifts in anticipation of the regime change in the coming months. Estate planning attorneys in particular are placing a premium on flexible plans which allow clients of any net-worth to weather the unknown political environment and numerous potential tax law changes. For those who are unsure whether now is the right time to make changes to their estate plan, you should have a little time to decide as it is likely that any tax changes related to estate taxes will be delayed as President Biden first tackles what many consider to be key priorities for his incoming administration (including the current COVID-19 pandemic and the economic stress felt by many).
In the event any of these changes come to fruition in the very near future, many clients will be looking to their attorneys and advisors to assist with what will likely become more sophisticated, expanded, and tailored planning than what has been traditionally needed in the past to avoid large tax bills upon death. Clients can be assured that their advisors are closely watching these potential changes and are always available to strategize any possible tax landscape and resulting changes to a client’s current plan. Estate planning has always faced a certain amount of uncertainty based on the natural fluidity that can accompany changes in laws – it is this comfort with uncertainty that will allow estate planning attorneys and advisors to help clients make the best choices for not only their futures, but the financial futures and well-being of their families for decades to come, no matter the political backdrop.
If you have any questions about this Legal Briefing, please contact any member of the firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.
When a person dies, there are several different routes that can be taken to administer the estate. These routes vary based on whether the decedent executed a Last Will and Testament prior to his or her death and the value of the total estate assets. This legal briefing outlines three common routes to administer an estate when a person dies in New York State.
A properly executed Will allows the person who executed the Will (known as a “testator”) to nominate someone he or she trusts to carry out the testator’s wishes. This nominated person is referred to as an “Executor”, and the Executor is granted the power to act on behalf of the testator’s estate by the Surrogate’s Court.
Upon the death of the testator, the customary procedure is that the nominated Executor submits the testator’s Will and other required documentation to the Surrogate’s Court to allow the Will to be probated. Once the Surrogate’s Court reviews the documentation provided and the Will is determined to be valid, the Court will issue a certificate called “Letters Testamentary” to the Executor to formalize the Executor’s official appointment to the role. An Executor has no power to act for the estate until the testator has received these Letters Testamentary. The general duties an Executor typically faces are as follows: to identify and gather the decedent’s assets, to utilize the decedent’s assets to pay all of the decedent’s debts, taxes, and any costs incurred due of the administration of the decedent’s estate, as well as to protect estate assets, and ultimately, to distribute the estate assets according to the terms set out in the Will.
There are occasions when the probate of a Will can be delayed. A few examples are as follows: someone with legal standing may choose to contest the validity of the testator’s Will; or a more-lengthy search for the next of kin of the decedent is necessary to properly notify all interested parties that the Will is being offered for probate. When a delay is anticipated, or even when there is no significant delay, but actions need to be taken immediately to protect estate assets, the nominated Executor can file a petition with the Surrogate’s Court seeking “Preliminary Letters Testamentary”. Once a Preliminary Executor has been appointed, the estate administration can move forward pending the probate of the Will and the Court’s issuance of Letters Testamentary to the nominated Executor. A Preliminary Executor, for example, may be responsible for paying estate taxes and debts, collecting assets, and safeguarding the estate assets. It is common for the Preliminary Executor to be granted all the powers of an appointed Executor, except that the Preliminary Executor is not permitted to distribute estate assets to beneficiaries.
In the event that a Will has been executed, but no Executor was named within the Will, or the Executor named is incapable or refuses to act, an “Administrator C.T.A” can be appointed by the Surrogate’s Court. “C.T.A” is an abbreviation of the Latin phrase “cum testamento annexo”, which means “with the Will annexed”. An Administrator C.T.A has all the same duties as an Executor or an Administrator and is permitted to collect estate assets, pay administrative expenses, pay taxes and debts, and distribute assets in accordance with the decedent’s Will. Any interested party can petition the Surrogate’s Court to be appointed as an Administrator C.T.A. The Surrogate’s Court will typically give priority to close family members to step into this role.
In the event an individual dies without having executed a Will, the Surrogate’s Court will appoint an Administrator of the decedent’s estate. An interested party can submit a petition to the Court in the county where the decedent was domiciled at the time of his or her death. Typically, the person most closely related to the decedent has the greatest preference in being appointed if the Surrogate’s Court receives multiple petitions seeking appointment to this role. The Surrogate’s Court will first look to a spouse, followed by adult children, then adult grandchildren, and if none exist then the Court will look to the decedent’s parents, then to the decedent’s adult siblings. An Administrator does not secure the authority to act on behalf of the estate until the Surrogate’s Court has issued the person a certificate called “Letters of Administration”. Letters of Administration serve as the documentary evidence of the Administrator’s authority to act on behalf of the estate. Like Executors, Administrators are permitted to collect estate assets, to pay taxes and debts, and ultimately to distribute estate assets to the distributees, which is the lawful name of the people that will inherit assets in accordance with New York State statute when a person dies without a Will.
In the event that no relative of the decedent submits a petition to become the Administrator, or when there has been mismanagement of an estate that has led to a significant devaluation of an estate, the Surrogate’s Court can appoint a Public Administrator. A Public Administrator appointed by the Court has the lawful authority to administer the estate. A Public Administrator performs similar duties to an Administrator and will also attempt to locate any potential heirs that may have a claim to estate assets.
In the event an individual dies with or without a Will, and the decedent’s personal property is valued at less than $50,000, the decedent’s estate is eligible to be administered through a process known as a “Voluntary Administration.” The individual that would customarily act as the estate’s Voluntary Administrator depends on whether or not there is a Will. If there is a Will, the Executor named in the Will has the first right to act as the estate’s Voluntary Administrator. If the individual dies without a Will, the Voluntary Administrator is customarily a distributee, in the following order of lawful preference: surviving spouse, adult children, adult grandchildren, parent, sibling, niece or nephew, aunt or uncle.
Letters of Voluntary Administration are typically issued to allow the Voluntary Administrator access to certain assets and those assets only. The Letters issued by the Court are tailored to each individual Voluntary Administration. Before collecting any assets, the Voluntary Administrator must show the bank, or any other agent involved, evidence of the decedent’s ownership, as well the Voluntary Administrator’s right to collect that asset on behalf of the estate – evidenced by the Letters of Voluntary Administration issued by the Court. The Voluntary Administrator will typically be responsible for collecting estate assets, paying the estate’s debts, and distributing the remaining assets to the required individuals or entities.
One of the easiest ways to ease the burden on your loved ones upon your passing is to lawfully execute a Will that clearly dictates your wishes and appoints an Executor (and an alternate Executor in the event your chosen Executor cannot act or refuses to act at the time of your death). By taking this action, you are declaring to the world (and, more importantly, to the Surrogate’s Court) who you have chosen to administer your Estate. This can help to remove the familial strife that can arise with deciding which family member(s) will step into the role of Executor upon your death and can also reduce the chances for litigation amongst family members upon your death.
As always, the attorneys at Kazembe Law are available to answer questions you may have regarding your Last Will and Testament and other estate planning questions.
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