April 2017 Newsletter

WELCOME BACK

Schanker and Hochberg P.C. is a premier Estate Planning law firm. We offer legal services for sophisticated Estate and Gift Tax planning, Decedent Estate Administration and Probate services, Business Succession Planning, Charitable Giving, Special Needs Planning for persons with disabilities, simple Will planning, and all aspects of Elder Law planning including Medicaid planning and applications. Our website, www.schankerandsch.wpengine.com, provides detailed information about our practice and the services we offer. It also is an excellent resource for articles of interest about Estate Planning and Estate and Gift Tax Laws. A copy of each newsletter will always be available on our website.

Estate Planning is so much more than just tax planning. There is a considerable decision-making process. Schanker and Hochberg P.C. has over 30 years of experience in counseling clients for their Estate Planning needs.

As always, we encourage feedback from our readers. If there are any topics you wish for us to specifically address or elaborate on, please email me at: andrea@schankerandsch.wpengine.com.

WHERE THERE IS A “WILL”, THERE IS A WAY…

A “Last Will and Testament” (your ‘Will’) is the document that directs how your Estate is managed and to whom it is distributed upon your death. Your Will is a set of directions and is legally enforceable if it is properly executed under the laws of the state in which it has been signed. The Executor (the person you have selected to manage the affairs of your Estate upon your passing) is empowered, after petitioning the Surrogate’s Court for “Letters Testamentary” (‘Letters’) upon your death. Letters Testamentary are the legal authority empowering the Executor to act; the Executor is then legally bound to act in the best interest of the Estate. This can be both an honor and certainly an obligation, especially if there is family discord or outstanding ‘loose ends’ of the decedent’s Estate (pending or ongoing legal actions, for example). ‘Will-based’ Estate Planning is not sufficient to avoid a probate proceeding and can impose unnecessary fees, time delays and much frustration.

TRUST IN YOUR PLANNING…

A “Trust” is a document that essentially sets forth directives for the management and distribution (or ultimate distribution) of income and principal. There are dozens of different types of Trusts created for all different purposes. There are “Revocable” Trusts which can be amended or terminated at any time. There are also “Irrevocable” Trusts that essentially (but not absolutely) can never be amended; there are exceptions to almost every rule and the law provides for certain changes to Irrevocable Trusts, but only under a particular set of circumstances. Most commonly, a “Revocable Living Trust” is created to be a ‘Will substitute.’ This is a common and efficient way for one’s Estate to avoid Probate in the Surrogate’s Court before the Executor/Trustee can have the authority and the ability to manage the Estate and make distributions of assets. Probate imposes frustration, delays and extra expenses. Moreover, Probate means a total lack of privacy as to the matters of the estate. Irrevocable Trusts are commonly used for ‘protective’ purposes. Irrevocable Trusts can receive large gifts to hold and manage on behalf of the intended beneficiary. The irrevocability allows the beneficiary to enjoy certain creditor protections. Other Irrevocable Trusts can provide for income tax and/or estate tax benefits. Elder Law planning incorporates the use of an Irrevocable Trust to help preserve and protect assets for purposes of Medicaid planning and eligibility. There are other Irrevocable Trusts to provide available assets to ‘disabled’ or ‘special needs’ beneficiaries without interfering with their ongoing ‘needs based’ government assistance (Medicaid or Disability benefits for individuals under 65). A Trust is a magnificent tool in an Estate Planning Attorney’s collection.

EXECUTORS AND TRUSTEES… What are they and What do they do?

The Executor manages the general affairs of the Estate and distributes assets pursuant to the terms of the decedent’s Last Will and Testament. The Trustee manages the assets inside the Trust, and makes distributions pursuant to the directives therein. Both an Executor and a Trustee owe a “fiduciary” duty to act in the best interest of the Estate and/or Trust beneficiaries. Choosing whom to place in these roles is a very important decision and should be considered with careful deliberation. Schanker and Hochberg P.C. can counsel you so that you are selecting a person(s) and/or institution that can be both the ‘human’ touchstone and perform with the prudent skill set required to fill the Fiduciary’s role.

The Value of an EXPERIENCED EXECUTOR

By Lee P. Miller, Regional Director, New York The Glenmede Trust Company, N.A. The Executor’s responsibilities are financial, personal and legal; they are detailed and time-intensive. Experience, expertise and resources result in superior outcomes. Executors have a lot to do. The duties of an Executor, both moral and legal, are to unwind and “close-up” the business of someone’s life — a complex and comprehensive process. Not only does this by definition occur at a time of personal loss and sadness, but it is also a full-time job for approximately 9-12 months. By law, the Executor of a Will, in some states also called Personal Representative, is a legal role governed by the law of the state in which the person (called the decedent) has died. The decedent names the Executor in his/her Will and the Executor is officially appointed by a Surrogate’s or Probate Court in order to obtain legal authority to transact any business on behalf of the estate or the decedent. Importantly, until the Will has been probated, the Executor has no power and no action can be taken, for example, no sales of stock and no checks written. The Executor’s duties fall into these main areas:

Identify and take control of all assets owned by the decedent, including investment and brokerage accounts; bank accounts; personal property; and real estate — everything must be transferred into the name of the estate and new accounts opened by the Executor for the estate. Assets have to be safeguarded and insured, and locks on residences may need to be changed.
Appraise and value all of the decedent’s assets, and identify liabilities.
Determine the estate’s cash needs and sell assets to raise necessary funds to pay bills and estate taxes.
Review the decedent’s estate plan to identify if there are post-death tax planning opportunities for the estate to save on taxes, including whether disclaimers could be useful.
Collect benefits due to the decedent (i.e. employment benefits, veteran’s benefits, life insurance, including life insurance due a trust).
If the decedent was a business owner, the Executor will be responsible for determining the estate’s interest in the business and possibly value the business; there may also be ongoing responsibilities for running the business, depending on succession plans.

Distribute personal property and pay specific cash bequests per the Will; sell any personal property not disposed of by Will.
As appropriate, clean out the house(s) and sell the real estate, including developing a marketing plan for the property.
Fund the Trusts created by the Will, if any.
File State and Federal Estate Tax Returns, the decedent’s final Income Tax Return, final Gift Tax Return and the Income Tax Returns for the Estate.
Account to the beneficiaries at the conclusion of the estate process (up to 2-3 years after death).

Who should be named Executor? An Executor can be an individual or a trust company, or a combination of the two serving as Co-Executors. If an individual, the Executor can be a family-member, friend or a trusted advisor such as an accountant or attorney. The decision needs to focus on the expertise and skills necessary to effectively carry out the serious responsibilities of serving as Executor: professional knowledge, objectivity, sensitivity, availability and honesty. Who to name as Executor depends on the size and complexity of the assets and family dynamics. The more complex and valuable the assets, the more important it will be for the heirs that the estate is properly administered, value maximized and the many decisions that have to be made considered in light of the tax laws then in effect. The passing of spouse, parent, any family member or a friend is a time of sadness, yes, but also may be a time of stress and financial uncertainty for the survivors. Personal differences among the survivors, dormant for years, may also surface, and the Executor has to juggle all these concerns and be an effective communicator.

Executor	Individual	Corporate
Who	Spouse, Child(ren), Friend, Accountant, Attorney	Trust Company
Expertise & Resources	Varies Greatly	Professional & Vast
Perpetuity	Potentially Limited	High
Personal Biases	Potentially High	Highly Unlikely
Cost (% of asset value)	0 to 1%	Generally Regulated
Bottom-line	For Simple Estates	Large, Complex Estates

It is this multi-faceted focus on the duties and roles of the Executor that point to the benefits of having a corporate Executor to do the “heavy lifting” while at the same time helping keep the family peace.

ESTATE Tax Exclusions

As of January 1, 2017, the Federal Estate Tax Exemption has increased to $5,490,000. The New Jersey State Estate Tax Exemption is $2 million per person in 2017. The New Jersey State Estate is scheduled to be repealed entirely in 2018. The ‘inheritance tax’ in New Jersey will not be repealed. The New York State Estate Tax Exclusion is $4,187,500 for Decedents dying between April 1, 2017 and March 31, 2017. As of April 1, 2017, the New York State Estate Tax Exclusion will rise to $5,250,000.

COMMISSIONS: The Complicated Realm of Paying Fiduciaries

Executor’s Commissions
Sum Received/ Paid Out	Percent Commission
First $100,000	5″k
Next $200,000	4%
Next $700,000	3%
Next $4,000,000	21/2%
Any additional funds	2%

Regarding remuneration of estate and trust fiduciaries, Section 2307 of New York’s Surrogate’s Court Procedure Act permits an Executor to first collect from the estate reasonable & necessary expenses paid by him. This category would include reasonable reimbursement for costs such as travel expenses, filing fees, and other necessaries paid by the Executor out-of-pocket on behalf of the estate. In addition to that reimbursement, Section 2307 allows “commissions” to be paid to the Executor based on the “value” of the probate estate (how much the Executor received and then paid out).

Sum Received/ Paid Out	Commission
First $100,000	$5,000
Next $200,000	$8,000
Next $700,000	$21,000
Next $4,000,000	$100,000
Remaining $1,000,000	$20,000
Total:	$154,000

For example, the commissions on a $6,000,000 probate estate would be calculated according to the table on the right: Trustees, pursuant to Section 2309, are first entitled to be reimbursed for reasonable and necessary expenses actually paid by him or her. Commissions for Trustees are based on the value of the principal administered by the Trustee, though for the Trustee the commissions are determined annually. Furthermore, the Trustee is also entitled to 1% of all sums paid out of the Trust, so the total commissions would be higher if the Trustee made distributions of principal in a particular year.

Trustee’s Commissions
Principal du	Percent Commission
First $400,000	$10.50 per $1,000
Next $600,000	$4.50 per $1,000
Any additional principal	$3.00 per $1,000

Thus, the commissions on a trust having $6,000,000 in principal would be calculated according to the table below:

Principal	Commission
First $400,000	$4,200
Next $600,000	$2,700
Remaining $5,000,000	$15,000
Total:	$21,900

It is important to keep in mind several important ideas. First, the commissions are income taxable to the Executor and/or Trustee, meaning the Executor and/or Trustee must report commissions each year and pay income tax thereon. Second, because the Executor and/or Trustee is often a beneficiary under the decedent’s will or trust, and because his or her commissions are paid “off the top”, an Executor-beneficiary and/or Trustee-beneficiary could be “taking money from himself” by taking commissions. Third, the Testator of a Will or Settlor of a Trust can “deactivate” (prohibit) commissions or can specify a commissions rate different from the statue. Fourth, any bank or trust company acting as Executor and/or Trustee will collect a higher fee based on their commissions schedule. Finally, if an attorney is serving as Executor or Trustee, the attorney is also entitled to legal fees in addition to commissions, provided a particular affidavit was signed by the Testator or Settlor.

HOW TO SAVE YOUR SANITY AND AVOID PROBATE: A Simple Guide

The word “probate” stems from the Latin verb probare, which means “to prove.” Indeed, a probate proceeding is the process by which one “proves” that a decedent’s Last Will and Testament is a valid Will. As simple as that may seem, much like the Latin root of the word, the entire probate process still seems to be stuck in ancient times. The process is plagued with unnecessary delays, cumbersome procedures, and needless costs such as filing fees. Considering all of that, it is important as part of a carefully crafted estate plan to ensure that the probate system is avoided entirely.

The easiest way to avoid the probate system is to have a “trust-based” plan as opposed to a “will-based” plan. The centerpiece of the “trust-based” plan is the Revocable Living Trust. The Revocable Living Trust is a “will substitute”,which means that the Trust does everything a will does (pass property on to your surviving heirs), without the need to involve the probate system.

But how does the Revocable Living Trust work? At the onset, the Trust needs to be drafted and signed by the Settlor. The Trust must then be funded with all of the assets owned by the Settlor individually or without named beneficiaries. For instance, joint accounts or accounts with payable-on-death designations, while they avoid the probate system, can cause problems if the beneficiary or joint owner predeceases the other joint owner; these scenarios could ultimately involve the probate system as well.

Upon the Settlor’s death or incapacity, control automatically vests in the Alternate Trustee, who takes over management responsibility. In the case of death, the Alternate Trustee must then administer the Trust according to the directives of the Settlor written in the Trust (i.e., distribute the assets). Again, this all happens in a streamlined manner and without having to involve the probate process! This saves time, money, family privacy, in some cases, sanity!

If you still have a “will-based” plan, it is important to revisit your existing plan and take the necessary steps to avoid the probate process. Schanker and Hochberg, P.C. has nearly 40 years of experience in estate planning, including for probate avoidance; if you are concerned about your estate plan and the probate process, you should contact Schanker and Hochberg, P.C. to discuss the planning that can be done to save your surviving heirs time, money, and privacy by avoiding the probate process.

NICK KLINGENBERG: Distinguished Young Professional

Schanker and Hochberg, P.C. is pleased to announce that its associate attorney, Nick Klingenberg, is an award recipient for the “Celebrate Long Island’s Young Professionals” Recognition Event through the Huntington Chamber of Commerce. The event, to be held in May, will honor thirty young professionals under the age of thirty who demonstrate commitment to the business and civic communities and to achieving success. Congratulations Nick!

Highlighted S&H Attorney
ANDREA B. SCHANKER

Andrea B. Schanker, Esq. — Partner, received her Bachelor of Arts degree in Clinical Psychology from University of Rochester in 1999 and her Juris Doctor from New York Law School. Andrea is a licensed member of the New York and New Jersey Bar Associations. She is the 2016-2017 President of the Huntington Lawyers’ Club, a member of the Suffolk County Bar Association and a member of the New York State Bar Association where she is an active member within the Trusts and Estates Section and the Elder Law and Special Needs Section. Ms. Schanker is also a member of the American Bar Association.

Ms. Schanker joined Schanker and Hochberg P.C., in 2004 as an Associate Attorney specializing in Estate Planning, Estate Administration, Business Succession Planning, and Elder Law. She regularly delivers Estate Planning presentations to professionals in the financial industry and their clients. Ms. Schanker also regularly advises accountants, financial advisors, and insurance advisors in connection with her areas of expertise.

Andrea lives in Huntington with her husband, Michael Abruzzo, and their daughters, Patricia Gertrude Abruzzo and Sylvia Grace Abruzzo.

Our main office is housed in an elegantly restored Victorian structure in the heart of Huntington Village. Here, we welcome you and your family into a relaxing, warm setting where we will work together to improve your circumstances and achieve your goals.

To better serve our clients and their families, we also have convenient office locations in Midtown Manhattan and New Jersey; we also offer our services to clientele in Florida and California.