Estate of Confusion in New York: Idea & Topics

Today, I thought of a book I would like to write, which would be titled, "Estate of Confusion in New York."

The more I learn about the law, in general, and trusts and estates law in New York, in particular, the more I see things that aren't intuitive or obvious, that are unclear, or that are unresolved.

Updated 4/2/2024: I'm making the topics below available publicly, not just to paid subscribers. These are just some of the topics that I'm thinking of adding to the forthcoming book:

• The law isn't "found" the way most non-lawyers think.
• The Supreme Court in New York isn't "supreme" -- something Sen. Skoufis wants to change via proposed legislation.
• New York estate tax
  • New York has an estate tax phaseout, not a tax cliff.
  • A santa clause isn't about Santa Claus.
• Guardian in socage: It is unclear why this concept persists in New York statutes.
• EPTL 11-1.1(b)(5)(A) v. requiring a tenant in common to pay rent after death
• Legal capacity
  • New York requires different levels of capacity depending on the instrument being executed. There are standards for wills and contracts. What's the standard for a trust, power of attorney, or health care proxy?
  • Someone can lack capacity at one moment but have sufficient legal capacity at another. Limited capacity isn't so limited after all.
• Wills
  • A will is ambulatory but it doesn't have legs and can't walk around.
  • A last will and testament might not be the last one if it's lost or misplaced, but it still might be if certain legal hurdles are met.
  • When does a testamentary trust exists? There is no single answer.
• Real Estate
  • The executor and the specific devise: The executor doesn't have statutory authority over a specific devise, but many lawyers and even some Surrogates Court judges assume that the executor does.
  • Vesting of property at death: Real property vests immediately but there is suspense around it.
  • Coop v. condo: A coop looks like a condo but only one is "real" property.
  • Does a Process Server Have to Testify at an Inquest in NYC Housing Court? The answer isn't straightforward.
  • Who drafts the real estate contract? The answer is different in downstate New York and upstate New York.
  • Lease forms often contain unenforceable clauses but many people use them anyway.
  • Testamentary disposition of real property to strangers & due on sale clause.
  • Life estate deed reserving a limited power of appointment:
    • It is possible for a grantor to reserve both a life estate and a limited power of appointment in a deed.
    • What are the advantages?
    • What are the disadvantages?
  • Is a New York State or New York City transfer tax imposed on gifts of membership interests of a limited liability company that owns New York real property?
• What is the definition of a "limited power of appointment"? The definitions of "power of appointment" are different under federal law and New York law.
• Medicaid planning
  • Medicaid is intended to help the poor, but it is also for middle class New Yorkers.
  • When does using a limited power of appointment make sense in Medicaid planning?
• Trusts
  • A retained power to change remainder beneficiaries is a limited power of attorney under New York law but isn't a limited power of attorney under federal estate and gift tax law.
  • You can revoke your irrevocable trust if you can get the beneficiaries to agree -- EPTL 7-1.9.
• In terrorem clauses
  • With just a few words a person can control and scare you even after they die.
  • Your trust can have an enforceable in terrorem clause, even though the EPTL has rules only when these clauses are in wills.
  • You can ask certain questions without violating an in terrorem clause, but not others. The line isn't always clear. Accidentally cross the line, and you can forfeit your inheritance. It's really quite scary.
• Powers of attorney
  • A power of attorney is a powerful document that is necessary to avoid the cost and delay of guardianship, but it can leave you powerless if the person you name abuses it.
  • Springing powers of attorney seem like such a good idea but springing it might be harder than it seems.
  • Your New York power of attorney is powerless with the Social Security Administration and the IRS.
• Living wills
  • Living wills are not wills.
  • Living wills are really about dying.
  • Living wills are unenforceable in New York, but you can still draft them.
  • Living wills might not be a good idea anyway.
• Totten trusts
  • What is a Totten trust?
  • Why is a Totten trust called a "Totten" trust?
  • Is a Totten trust really a "trust"?
  • Testators can revoke Totten trusts in their will: How can testators revoke Totten trusts in their will?
  • If a Totten trust is a non-probate asset, then why can it be revoked by the decedent will?
  • A Totten trust is a non-probate asset but it is also subject to the decedent depositor's debts if the estate is otherwise insolvent: How does this work?
  • What happens if a bank refuses to pay the Totten trust to the named beneficiary when the beneficiary presents it with the depositor's death certificate?
• Incapacity
  • When does the person lack capacity for purpose of the state planning?
  • What is temporary or situational capacity?
  • Why would you want to avoid adult guardianship ?
  • How do you avoid adult guardianship?
• When do you need a genealogist?
• How do you invest trust assets in order to truly benefit both the income beneficiary and the remainder persons?
• Intestacy
  • How does the Surrogate's Court get jurisdiction?
  • Who must the petitioner cite?
• Pour over will
  • What is it?
  • When do you use it? Generally, with a revocable trust as a back-stop in case the trust isn't fully funded. But, surprisingly, there is a scenario where a pour over will shouldn't be used.
  • How do you draft it -- do you simply incorporate the dispositive terms of the trust or do you restate the trust? There are pros and cons to each approach.
• Savings Bond
  • What happens if the beneficiary predeceases the bond owner?
  • Savings bonds & Medicaid
  • Does a surviving spouse have a right of election against savings bonds?
  • Can a surviving spouse claim a savings bond under the family exemption?

Please let me know in the comments below of topics you have come across. I look forward to hearing from you.