- ⭐️ Key
- ➡️ = A link to another post or page on this website that is available to all readers.
- 🔑 = A link to another post or page on this website that is available to ➡️ Paid Subscribers.
- 🖇️ = A link to another part of this Outline. Clicking on the link opens the part in a new tab in your browser. This allows you to read the relevant section, close the tab, and return to the Outline without losing your place.
- 🔤 = A link to a ➡️ Glossary definition.
- Administrator C.T.A.
- Artificial Intelligence
- ➡️ How AI Gives Me Confidence to Contribute to Professional Discussions
- AI’s Role in Financial Advisory
- AI is transforming the financial advisory industry by providing tools for lead generation, financial planning, client service, and administrative tasks.
- Benefits of AI for Advisors: AI allows advisors to streamline operations, improve efficiency, and focus on client relationships.
- Importance of Data Privacy: Ensuring data privacy and compliance remains crucial as AI tools become more prevalent.
- Resources
- Satayan Mahajan, Your New AI Assistant (No, It Won't Steal Your Job), WealthManagement, Oct. 3, 2024: AI is transforming the financial advisory industry, providing tools for lead generation, financial planning, client service, and administrative tasks. By leveraging machine learning and generative AI, advisors can streamline operations, improve e neefficiency, and focus on client relationships. However, ensuring data privacy and compliance remains crucial as AI tools become more prevalent.
- Orly Mazur & Adam Thimmesch, Transforming Tax Communications With Large Language Models, 185 Tax Notes Fed. 757 (Oct. 28, 2024).
- ➡️ How AI Gives Me Confidence to Contribute to Professional Discussions
- ➡️ Decoding Handwritten Legal Decisions with ChatGPT: A Case Study
- Beneficiary Designation
- Definition: ➡️ beneficiary form. EPTL 13-4.1(a).
- NY: A will can revoke or amend a beneficiary designation. ➡️ EPTL 13-4.6(b).
- 🔑 NY: Generally, a will cannot change the beneficiaries of a life insurance policy
- Bluebook
- Online: https://www.legalbluebook.com/
- Case Unsealing
- Charitable Planning
- Donor Advised Fund (DAF)
- Definition of 🔤 Donor Advised Fund (DAF)
- Donor Advised Fund (DAF)
- Chicago Manual of Style
- Collectibles
- "The market for collectibles is expanding, with ultra-high-net-worth individuals allocating about 25% of their portfolios to art, according to a 2024 survey by Art Basel and UBS. Additionally, over one-third of family offices now include collectibles in their investment strategies, as noted in Goldman Sachs’ Family Office Report." Claire Ceremuga, Family Wealth Report: Collectibles as Investments: Rewards, Risks, and Practical Insights from Experts (Nov. 18, 2024), Wealth Strategies Journal, Nov. 18, 2024.
- Authentication
- Valuation
- Soaring Prices, Big Risks Characterizing Collectibles: Investment Summit, Family Wealth Report, Nov. 18, 2024. • Summarized by Claire Ceremuga in Wealth Strategies Journal, here.
- CT In Terrorem Clause
- Deficit Reduction Act of 2005
- Michael Gilfix & Bernard A. Krooks, Throw Mama From the Train: The Deficit Reduction Act of 2005 Abandons Our Nation's Elders, NYSBA Trusts and Estates Law Section Newsletter, Vol. 39 No. 3, Fall 2006.
- Devise
- Definitions
- Types of devises
- Distributee
- Definition of 🔤 distributee.
- Dynasty Trust
- Estate Administration
- Fiduciaries manage estate complexities and bear the consequences of their decisions. See, e.g., ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
- Estate Planning
- Ethics
- Ethical Duties of Estate Planners
- Do estate planners owe duties to beneficiaries?
- What is the scope of those duties?
- How does this vary across jurisdictions?
- Duty of confidentiality vs. transparency to heirs
- Can estate planners disclose confidential information to beneficiaries?
- What ethical boundaries exist when discussing client intentions with heirs?
- Duty to suggest alternatives
- Should estate planners propose alternative plans if the client’s wishes may lead to family disputes?
- What are the limits of the planner’s role in guiding decisions?
- Potential conflicts of interest
- What should estate planners do when representing multiple family members with differing interests?
- How should planners navigate loyalty to the client while considering potential claims by beneficiaries?
- Moral obligations vs. legal duties
- What happens when a client’s wishes are legally sound but ethically questionable?
- Should estate planners ever refuse to execute morally controversial estate plans?
- Duty to prevent future litigation
- Should estate planners take steps to mitigate potential disputes after the client’s death?
- Is there an obligation to foresee and address familial tensions during planning?
- Do estate planners owe duties to beneficiaries?
- Professional Responsibility and Ethical Guidelines
- How do professional codes of conduct (ABA, state bars) define an estate planner's ethical boundaries?
- What role does continuing legal education (CLE) play in shaping ethical estate planning practices?
- Handling client incapacity or undue influence
- What steps should estate planners take when they suspect a client is being unduly influenced?
- How can planners ethically assess a client’s mental capacity to make decisions?
- Conflicts between Legal Obligations and Personal Ethics
- How should estate planners manage situations where legal requirements conflict with personal moral beliefs?
- What are the consequences of refusing to work on morally objectionable estate plans?
- Can estate planners ethically withdraw from representation if they disagree with the client’s wishes?
- Transparency in Fee Arrangements
- How can estate planners ensure their fee structures are ethical and transparent to clients?
- What are the ethical obligations when discussing fees with clients and beneficiaries?
- Are there best practices for avoiding fee disputes?
- Balancing Client Autonomy and Ethical Judgment
- Should estate planners intervene when they believe a client is making a harmful decision?
- How can planners ensure they respect client autonomy while maintaining ethical standards?
- Ethical Duties of Estate Planners
- 🗓️ Events
- 🗓️ 12/19/2024 2:30 - 4:00 PM EST: Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic. Zoom link.
- 🗓️ 1/22/2025 1:00 - 2:00 PM EST: Protecting your ASSets: Medicaid Asset Protection Trusts Explained. Presented by Daniel Miller, Esq. for the New York State Academy of Professional Lawyers. 1 Professional Practice Credit. Register here.
- Events Archive
- 11/21/2024 🗓️ Corporate Transparency Act (CTA) and Trusts: "This program will explore many of the implications, issues and open questions about how trust ownership of entities may affect CTA filings." The speakers for this complimentary webinar are Jonathan G. Blattmachr Esq., Alan S. Gassman Esq., Chriseanna Mitchell, and Martin M. Shenkman Esq.
- 11/21/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic.
- 11/14/2024: 🗓️ Republican Victory: How Estate Planners Can Stay Relevant and Keep Practice Momentum. The speakers for this complimentary webinar are Martin Shenkman, Esq., Jonathan G. Blattmachr, Esq. and Robert S. Keebler, CPA; and it is sponsored by Peak Trust Company and Interactive Legal Systems (ILS).
- 11/7/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- New York Transfer on Death Deeds.
- 10/24/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic.
- 10/17/2024 🗓️ In-Person Event: Round Table on Nursing Home Problems & Solutions in Pittsford, NY
- 10/10/2024 🗓️ Linda Maryanov's T&E Think Tank Zoom study session -- Open Mic. • A particularly interesting discussion arose around the treatment of clawed-back gifts in New York estate tax, leading to this post: ➡️ NY Estate Tax: Why Clawed-Back Gifts Don’t Get a Basis Step-Up
- 9/23/2024 🗓️ Free Webinar for Caregivers: Planning for Long-Term Care Needs in New York
- 9/19/2024 🗓️ Join the T&E Think Tank: Meet the Chiefs 2024
- 9/19/2024 🗓️ CLE via Zoom on New York Probate and Transfer on Death Deeds
- 9/17/2024 🗓️ Complimentary Webinar on Helping More People Navigate the Dementia Journey (InterActive Legal)
- 9/5/2024 ➡️ Thursday Think Tank: Open Mic
- 9/5/2024 ➡️ Webinar on the Loper Bright United States Supreme Court Decision
- Federal Gift Tax
- To determine whether a gift reduces the lifetime exemption and/or is reportable, see the flowchart & discussion on Nerd's Eye View (10/9/2024).
- Federal Income Tax
- Realization
- Definition of 🔤 realization.
- See Sloan G. Speck, The Realization Rule as a Legal Standard, 16 Colum. J. Tax. L. __ (forthcoming 2024) (SSRN link): The realization rule in tax law is a legal standard, not a rule. A constitutional realization requirement could erode tax law from the bottom up and increase complexity.
- Realization
- Genealogy
- NYPL Genealogy Databases
- GEDCOM (GEnealogical Data COMmunication)
- A widely used data exchange format created by many genealogy programs.
- GEDCOM Specifications
- The GEDCOM Standard Release 5.5
- The GEDCOM Standard 7.0.0-rc1
- GEDCOM Data Format
- GEDCOM Form: The Lineage-Linked GEDCOM Form
- Family Tree Heritage
- Steve Little, Artificial Intelligence and Genealogy: Using ChatGPT to Write Stories from Family Trees, Create Trees from Stories, AI Genealogy Insights, March 17, 2023.
- Intentionally Defective Grantor Trust (IDGT)
- Kamala Harris
- Lawmatics
- Lawmatics website: https://www.lawmatics.com/pricing/
- Life Insurance
- Limited Power of Appointment
- MA In Terrorem Clause
- Mathilda S. McGee-Tubb & Mirele A. Sagan, Can a beneficiary serve as a witness in a will contest without losing their inheritance? The Massachusetts Appeals Court says yes., Mintz, Nov. 8, 2024.
- MA Principal and Income Act (MPIA)
- Power to Adjust
- The MPIA "permit[s] a trustee of trusts having an income beneficiary and remainder beneficiaries to adjust between principal and income after he pursued a total growth strategy that disproportionately increased trust principal relative to trust income." Matter of Kline, No. SJC-13579 (MA Supreme 2024)..
- Power to Adjust
- MyCase
- MyCase website: https://www.mycase.com/
- MyCase API
- MyCase's API is available only in the Advanced subscription.
- MyCase API Documentation
- NY Absentee
- Rebecca T. Goldberg, Proposal to Amend EPTL § 2-1.7(a), NYSBA Trusts and Estates Law Section Newsletter, Vol. 46 No. 1, Spring 2013.
- NY Ademption
- NY Administrator C.T.A.
- Generally: 🖇️ Definitions for administrator c.t.a.
- Renunciation of Letters of Administration C.T.A.
- Affirmations in New York
- NY Capacity
- NY Choice of Law Clause
- NY Civil Practice Rules (CPLR)
- NY Conflict of Laws
- NY Construction Proceeding
- NY Cooperative Apartments (COOPs)
- NY Delegation by Trustee
- SCPA 2115: Review of costs of delegation by trustee
- NY Discovery
- Methods of Obtaining Disclosure - CPLR 3102
- Disclsoure Devices: CPLR 3102(a) permits information to be obtaining by one or more of the following disclosure devices:
- Depositions upon oral questions
- Depositions without the state upon written questions
- Interrogatories
- Demands for addresses
- Discovery and inspection of documents or property
- Physical and mental examinations of persons
- Requests for admission
- Discovery Methods: CPLR 3102(b) governs disclosure methods.
- CPLR 3102(b) identifies three disclosure methods, unless otherwise provided by the civil practice law and rule or by the court:
- Stipulation
- On notice
- By leave of the court
- CPLR 3102(b) states that disclsoure is generally obtained by stipulation or on notice iwthout leave of court.
- CPLR 3102(b) identifies three disclosure methods, unless otherwise provided by the civil practice law and rule or by the court:
- Before Action Commenced: CPLR 3102(c) allows disclosure even before an action is started but only by court order.
- CPLR 3102(c) identifies the reasons for pre-action disclosure:
- To aid in brining an action
- To preserve information
- To aid in arbitration
- CPLR 3102(c) states that acourt may appoint a referee to take testimony.
- CPLR 3102(c) identifies the reasons for pre-action disclosure:
- After Trial: CPLR 3102(d) states that after a trial is commenced, dislcosure can only be obtained by court order on notice, unless CPLR 5223 provides otherwise.
- Actions Pending in Another Jurisdiction: CPLR 3102(e) governs diclosure when an action is pending in another jurisdiction.
- Action to Which States Is Party: CPLR 3102(f) states that when the state is a party (whether as plaintiff, defendant or otherwise), disclosure by the state will be available as if the state were a private person.
- Discovery in Probate Proceedings
- 22 NYCRR § 207.27: ➡️ Uniform Rules for Surrogate’s Court § 207.27 usually imposes a five-year discovery period in contested probate proceedings, but courts may extend this period beyond the limit if “special circumstances” are demonstrated.
- SCPA 1404 pre-objection discovery: SCPA 1404 permits limited depositions of witnesses and document production in probate proceedings.
- Probate Discovery Limits Upheld in Matter of Landau
- Disclsoure Devices: CPLR 3102(a) permits information to be obtaining by one or more of the following disclosure devices:
- Methods of Obtaining Disclosure - CPLR 3102
- NY Equitable Doctrine of Substituted Judgment
- Courts apply this doctrine to determine whether to approve a gift on behalf of persons who lack the capacity to handle their own affairs.
- The doctrine of substituted judgment is available in a Mental Hygiene Law Article 81 guardianship. See MHL 81.21.
- Courts disagree on whether the doctrine of substituted judgment is available in a SCPA Article 17-A guardianship.
- SCPA Article 17-A does not have a list of factors like that available for an Article 81 guardianship in MHL 81.21.
- Not Available in New York County Surrogate's Court: In Matter of John J.H., Surrogate Glen held that the court cannot exercise substituted judgment on behalf of article 17-A wards who never had the capacity to handle their own affairs and that an Article 81 guardianship would be required.
- Available in Bronx County Surrogate's Court: In Matter of Joyce G.S., 913 N.Y.S.2d 910 (Sur. Ct. Bronx Co. 2010), Surrogate Holzman held "that, under the law as it presently exists, it has the power to invoke the equitable doctrine of substituted judgment to approve gifts or tax saving transactions on behalf of article 17-A wards.").
- NY Equitable Estoppel
- NY Estate Tax
- NY Estates, Powers and Trusts Law (EPTL)
- Article 1: General Provisions
- Article 2: Rules Governing Dispositions Subject to This Law
- Part 1: Substantive Rules Governing Dispositions
- EPTL 2-1.1 Heirs at law and next of kin defined
- EPTL 2-1.2 Issue to take per capita, per stirpes or by representation
- EPTL 2-1.3 Adopted children and posthumous children as members of a class
- EPTL 2-1.4 Words of inheritance unnecessary
- EPTL 2-1.5 Advancements and their adjustment
- EPTL 2-1.6 Disposition of property where a person dies within on hundred twenty hours of another person or any other event
- EPTL 2-1.7 Presumption of death from absence; effect of exposure to specific peril
- EPTL 2-1.8 Apportionment of federal and estate or other death taxes; fiduciary to collect taxes from property taxed and transferees thereof
- EPTL 2-1.9 Distributions in kind by executors and trustees
- EPTL 2-1.10 Provisions relating to infants and minors
- EPTL 2-1.11 Renunciation of property interests
- EPTL 2-1.12 Credit shelter formula bequests
- EPTL 2-1.13 Certain formula clauses to be construed to refer to the federal estate and generation-skipping transfer tax laws applicable to estates of decedents dying after December thirty-first, two thousand nine and before January first, two thousand eleven
- EPTL 2-1.14 Right to recover state estate and gift taxes where decedent retain interest
- EPTL 2-1.15 Consequences of partly ineffective dispositions of trust principal to two or more beneficiaries
- Part 1: Substantive Rules Governing Dispositions
- Article 3: Substantive Law of Wills
- Part 1: Who May Make and Receive Testamentary Dispositions of Property; What Property May Be Disposed of By Will
- Part 2: Execution of Wills
- Part 3: Rules Governing Testamentary Dispositions
- Part 4: Revocation of Wills and Related Subjects
- Part 5: Rules Governing Wills Having Relation to Another Jurisdiction
- Article 4: Descent and Distribution of an Intestate Estate
- Article 5: Family Rights
- Part 1: Rights of Surviving Spouse
- Part 3: Rights of Family Unit
- Part 4: Rights of Members of Family Resulting from Wrongful Act, Neglect or Default Causing Death of Decedent
- Article 6: Classification, Creation, Definition Of, and Rules Governing Estates in Property
- Article 7: Trusts
- Part 1: Rules Governing Trusts
- EPTL 7-7.1: When trust interests not to merge
- EPTL 7-1.9: Revocation of Trusts
- ➡️ EPTL 7-2.6: Resignation, Suspension or Removal of Trustee
- Part 1: Rules Governing Trusts
- Article 8: Charitable Trusts
- Article 9: Perpetuities and Accumulations
- Article 10: Powers
- Article 11: Fiduciary: Powers, Duties and Limitations; Actions By or Against in Representative or Individual Capacities
- Article 11-A: Uniform Principal and Income Act
- Article 12: Actions By Creditors and Other Persons Against Distributees and Testamentary Beneficiaries
- Article 13: Other Provisions Affecting Estates
- Part 1: Assets of Decedent's Estate
- Part 2: Statute of Frauds Requirements
- Part 3: Miscellaneous Provisions
- Part 4: Transfer-on-death Security Registration
- EPTL 13-4.1 Definitions
- ➡️ EPTL 13-4.1(a) defines "beneficiary form."
- EPTL 13-4.2 Registration in beneficiary form; sole or joint tenancy
- EPTL 13-4.3 Applicable law
- EPTL 13-4.4 Origination or registration in beneficiary form
- EPTL 13-4.5 Form of registration in beneficiary form
- EPTL 13-4.6 Effect of registration in beneficiary form
- ➡️ EPTL 13-4.6(b) allows testators to revoke or amend a beneficiary designation.
- EPTL 13-4.7 Ownership on death of owner
- EPTL 13-4.8 Protection of registering entity
- EPTL 13-4.9 Nontestamentary transfer on death
- EPTL 13-4.10 Terms, conditions, and forms
- EPTL 13-4.11 Rules of construction
- EPTL 13-4.12 Application
- EPTL 13-4.1 Definitions
- Article 13-A: Administration of Digital Assets Summary of Article
- Article 14: Repealer; Derivation and Distribution Tables; Effective Date
- NY Executor
- Unresponsive executor
- If a nominated executor becomes unresponsive before the probate petition, then a lawyer who is safekeeping their client's will can 🔑 file the will in court.
- Powers of executors
- Duties
- Executor has a duty of impartiality
- An executor "owes an absolute duty of impartiality to all the beneficiaries of the estate." Estate of Muller, 24 N.Y.2d 336 (1969) (surcharging executor-legatee for advances from the estate with interest for the time he had the use of the estate funds because "[a]n executor must at all times discharge his fiduciary duties so that all legatees are treated in like manner and without prejudice or discrimination.").
- Executor has a duty of impartiality
- Surcharge of executor
- Estate of Muller, 24 N.Y.2d 336 (1969): Where an executor-legatee made avances from an estate, thereby violating the executor's "absolute duty of impartiality to all the beneficiaries of the estate," the executor was surcharged with interest for the time he had the use of the estate funds because "[a]n executor must at all times discharge his fiduciary duties so that all legatees are treated in like manner and without prejudice or discrimination.").
- Legal fees & executors
- Unresponsive executor
- NY Fiduciaries
- Definitions
- Fiduciary Responsibilities
- Fiduciaries are responsible for making decisions and may face personal liability for their actions. See ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
- Judicial Oversight of Fiduciaries
- Courts oversee fiduciary actions but do not substitute their judgment for that of the fiduciary. See ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
- NY Fiduciary Accounting
- 🔑 Computer Programs for Preparing Surrogate's Court Accounting
- Accounting Proceeding
- Burden of Proof Is on Accounting Fiduciary
- Compulsory Accounting Proceeding
- Surviving Spouse Can Commence Compulsory Accounting
- Executor Can Object to Compulsory Accounting By Alleging Surviving Spouse Lacks Standing
- Surviving Spouse Can Commence Compulsory Accounting
- Standing: Who has standing in an accounting proceeding?
- NY Duty of Impartiality
- NY Trustee's Duty of Loyalty
- Self-Dealing
- Commingling
- Overreaching
- Impartiality
- Resources on the Duty of Loyalty in New York
- 2 NY Practice Guide: Probate & Estate Admin § 26.01 Duty of Loyalty (🔒 Lexis Link)
- NY Guardianship: Article 81
- ➡️ Guardian Cannot Amend Revocable Trust When Capacity Is Required for Amendment.
- Guardianship services for nursing home: 🔑 Sample language in retainer agreement.
- NY Historic District for Home
- NY In Terrorem Clause
- Whether a no-contest clause is triggered: Which actions trigger an in terrorem clause?
- Nicole L. Johnson, No One Can Contest a New York Will If It Includes an In Terrorem Clause. Right? Right?!?!?!!?, National Review, Dec. 23, 2024.
- NY Insolvent Estate
- Frank T. Santoro, Guideposts in Addressing Claims in a Potentially Insolvent Estate, NYSBA Trusts and Estates Law Section Newsletter, Vol. 46 No. 1, Spring 2013.
- NY Irrevocable Trust
- Uses of Irrevocable Trusts
- Asset Protection
- Charitable Planning
- Estate Planning
- Elder Law Planning (Long-Term Care Planning)
- Retirement Planning
- Tax Planning
- 🔑 Real Property in Irrevocable Trust: Beneficiaries Don’t Own the Real Property
- Uses of Irrevocable Trusts
- NY Joint Venture
- "[A]s a general proposition, absent an agreement to the contrary, partners, joint venturers, and tenants in common look solely to the appreciation of their interest in the endeavor for their financial rewards, and are not entitled to separate compensation for services rendered (see, Levy v Leavitt, 257 N.Y. 461, 467; Myers v Bolton, 157 N.Y. 393, 399)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
- NY Landlord & Tenant
- NY Law of the Case
- "The law of the case doctrine is part of a larger family of kindred concepts, which includes res judicata (claim preclusion) and collateral estoppel (issue preclusion). These doctrines, broadly speaking, are designed to limit relitigation of issues. . . . . As distinguished from issue preclusion and claim preclusion . . . law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment." People v. Evans, 94 N.Y.2d 499, 502 (2000) (citations omitted, emphasis in original).
- "[I]t does not foreclose reexamination of a question where there is a showing of subsequent evidence (see Applehole v Wyeth Ayerst Labs., 213 AD3d 611 [1st Dept 2023]) . . . ." Matter of Hoppenstein v. Hoppenstein, 225 AD 3d 489 (NY App. Div. 1st Dept. 2024).
- "[I]t only to legal determinations that were necessarily resolved on the merits in the prior decision (see 47 E. 34th St. [NY] L.P. v BridgeStreet Worldwide, Inc., 219AD3d 1196, 1201 [1st Dept 2023]; Metropolitan Steel Indus., Inc. v Perini Corp., 36 AD3d 568, 570 [1st Dept 2007]). The court's July 29, 2019 decision denying the prior motion for summary judgment was based on providing objectants with the opportunity to obtain discovery, and the decision did not resolve the issues on the merits." Matter of Hoppenstein v. Hoppenstein, 225 AD 3d 489 (NY App. Div. 1st Dept. 2024).
- NY Legal Fees in Litigation
- NY Lifetime Trusts
- NY Matrimonial Law
- NY Medicaid Asset Protection Trust (MAPT)
- NY Motion to Dismiss Complaint
- NY CPLR Rule 3211: Motion to Dismiss
- Insufficient Complaint: If the complaint does not state a cause of action.
- Court’s Review Process: What does the court consider when reviewing the motion?
- NY Partnership
- "Partners, however,and particularly managing partners, owe a fiduciary duty to the other partners (see, Meinhard v Salmon, 249 N.Y. 458, 468)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
- "[A]s a general proposition, absent an agreement to the contrary, partners, joint venturers, and tenants in common look solely to the appreciation of their interest in the endeavor for their financial rewards, and are not entitled to separate compensation for services rendered (see, Levy v Leavitt, 257 N.Y. 461, 467; Myers v Bolton, 157 N.Y. 393, 399)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
- NY Probate Petition
- NY Powers of Appointment
- NY Power of Attorney
- NY Power to Adjust (NY-PTA)
- New York's prudent investor standard (EPTL 11-2.3(b)) also authorizes the power to adjust under EPTL 11-2.3(b)(5). See ➡️ this post.
- ➡️ EPTL 11-2.3(b)(5): Nomenclature
- 🔑 EPTL 11-2.3(b)(5) Adjustments Must Be Reflected in Accounting
- A trustee-beneficiary cannot exercise the NY-PTA.
- GST-exempt is status not affected by equitable adjustments. PLR 200609003 (PDF)
- NY Prudent Investor Act (NY-PIA) - EPTL 11-2.3
- Effective for any investment made or held on or after January 1, 1995 by a trustee. EPTL 11-2.3(a).
- Enacts the prudent investor rule. EPTL 11-2.3(a).
- "incorporates basic principles of Restatement 3d, Trusts, Prudent Investor Rule, as adopted and promulgated by the American Law Institute on May 18, 1990." EPTL-SCPA 3rd Report.
- Resources on the NY-PIA
- Georgiana J. Slade, The Trustee in the New Millennium, NYSBA Trusts and Estates Law Section Newsletter ( Vol. 36, No. 1 Spring 2003).
- NY Punitive Damages
- NY Remainder Beneficiaries
- NY Renunciation
- NY Revocable Trust
- Terms of Revocable Trust Determine Scope of Authority to Revoke or Amend
- NY Safe Deposit Box
- Petition to Search Safe Deposit Box
- NY Specific Devise
- NY Sprinkle Trust
- NY Standing
- 🔑 Remainder Beneficiaries of a Trust Have Standing in Accounting Proceeding
- 🔑 Remainder Beneficiaries of a Trust Have Standing in a Proceeding to Remove a Trustee
- 🔑 Takers in Default of a Power of Appointment Have Standing in Accounting Proceeding
- 🔑 Prospective Sprinklees of Trust Income Have Standing in Accounting Proceeding
- 🔑 Appointees Under Powers of Appointment That Have Not Yet Been Exercised Have Standing in Accounting Proceeding
- NY Staple Affidavit
- NY Statutes of Limitations
- NY Stipulations
- Summary Judgment & Stipulations
- Setting Aside a Stipulation
- 🔑 Courts Favor Settlement Stipulations When Parties Have Legal Representation
- Grounds for Setting Aside a Stipulation
- 🔑 Fraud
- Overreaching (Coercion or Duress)
- 🔑 Repudiation
- Lack of Capacity
- Voiding a Stipulation
- NY Summary Judgment
- Proponent must make a 🔑 prima facie showing of entitlement.
- Then, the 🔑 burden shifts to the opposing party.
- 🔑 Standard for Deciding a Summary Judgment in a NY Probate Proceeding
- 🔑 Court Can Grant Summary Judgment on Stipulation Interpretation When Parties’ Intent is Clear
- 🔑 Fiduciaries Denied Summary Judgment for Use and Occupancy Fees Due to Lack of Proof and Uninhabitability Claims
- NY Supplemental and Special Needs Trust (SNTs)
- First Party SNT
- Guidelines for Trustees of First Party Supplemental Needs Trusts, NYSBA Special Needs Planning Committee.
- Third Party SNT
- Trustee Guidelines for Administration of a Supplemental Needs Trust, NYC Department of Social Services.
- John Lensky Robert, Drafting Supplemental and Special Needs Trusts, NYSBA, Fall 2013.
- First Party SNT
- NY Surrogate's Court
- NY Surrogate's Court Procedure Act (SCPA)
- ➡️ SCPA 207: Lifetime Trusts; Jurisdiction and Venue
- ➡️ SCPA 304: Contents of Petition
- ➡️ SCPA 711: Suspension, Modification or Revocation of Letters or Removal for Disqualification or Misconduct
- SCPA 1403: Persons to be served; content of process
- SCPA 1403(1)(d): "Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate's court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate."
- SCPA 1403(1)(d) can come up when a lawyer 🔑 files a will in Surrogate's Court because a nominated executor is unresponsive.
- SCPA 1403(1)(d): "Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate's court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate."
- ➡️ SCPA 1404: Witnesses to Be Examined; Proof Required
- SCPA 1418: Letters of administration with will annexed; when and to whom granted
- ➡️ SCPA 1420: Proceeding for construction of will; effect of decree
- ➡️ SCPA 2307 Commissions of Fiduciaries Other Than Trustees
- 🔑 SCPA 2508: Filing of will of decedent
- NY Tax Law (Statutes)
- TL § 954 Resident's New York Gross Estate
- NY Tenants in Common
- "[A]s a general proposition, absent an agreement to the contrary, partners, joint venturers, and tenants in common look solely to the appreciation of their interest in the endeavor for their financial rewards, and are not entitled to separate compensation for services rendered (see, Levy v Leavitt, 257 N.Y. 461, 467; Myers v Bolton, 157 N.Y. 393, 399)." Birnbaum v. Birnbaum, 73 NY 2d 461 (1989).
- NY Title Insurance
- Endorsements
- ALTA v. TIRSA
- ALTA = American Land Title Association, which means it is used nationally
- TIRSA = specific to New York and not national
- ALTA v. TIRSA
- Endorsements
- NY Transfer on Death Deed
- Limitations
- Ancillary transfer documents (like TP-584, RP-5217, and IT-2663) are not required when recording NY TOD deeds, Except in Erie County and Niagara County. See ➡️ No Ancillary Transfer Documents Required for Recording (Except in Erie County & Niagara County).
- NY Trust Protector
- NY Trustee's Duty of Impartiality
- Duty: What is the duty of impartiality?
- Definition of 🔗duty of impartiality.
- Proposed New York Trust Code
- Duty: What is the duty of impartiality?
- Duty to Determine Whether to Retain or Dispose of Initial Assets
- NY EPTL 11-2.3(b)(3)(D): "The prudent investor standard requires a trustee: . . . (D) within a reasonable time after the creation of the fiduciary relationship, to determine whether to retain or dispose of initial assets."
- NY Trustees
- NY Trusts
- 🖇️ Trustees in New York
- NY EPTL 11-1.1(a)(2) defines a trust for purposes of NY EPTL 11-1.1 (Fiduciary powers): "(a) As used in this section, unless the context or subject matter otherwise requires, . . . (2) [T]he term 'trust' means any express trust of property, created by a will, deed or other instrument, whereby there is imposed upon a trustee the duty to administer property for the benefit of a named or otherwise described income or principal beneficiary, or both. A trust shall not include trusts for the benefit of creditors, resulting or constructive trusts, business trusts where certificates of beneficial interest are issued to the beneficiary, investment trusts, voting trusts, security instruments such as deeds of trust and mortgages, trusts created by the judgment or decree of a court, liquidation or reorganization trusts, trusts for the sole purpose of paying dividends, interest, interest coupons, salaries, wages, pensions or profits, instruments wherein persons are mere nominees for others, or trusts created in deposits in any banking institution or savings and loan institution."
- NY Undue Influence
- NY Unitrust - EPTL 11-2.4
- Effective January 1, 2002, a trustee-beneficiary can make a unitrust election under EPTL 11-2.4. See Matter of Heller, 849 NE 2d 262 (NY Court of Appeals 2006); Matter of Sackler, 2016 NY Slip Op 32013(U) (Sur. Ct., Nassau County 2016).
- A unitrust election "permits trustees to elect a regime in which income is calculated according to a fixed formula and based on the net fair market value of the trust assets." Matter of Heller, 849 NE 2d 262 (NY Court of Appeals 2006).
- Proceeding to Apply Unitrust
- NY Use and Occupancy in Surrogate's Court
- NY WebSurrogate
- NY Wills
- ➡️ "I Love You" Will Might Not Show Love to Surviving Spouse
- ➡️ Share the Location of Your Will, or It Will Be Worthless
- Testamentary Capacity
- Scope of a Will
- A will can revoke or amend a beneficiary designation. ➡️ EPTL 13-4.6(b).
- 🔑 Generally, a will cannot change the beneficiaries of a life insurance policy
- Staples
- Safekeeping a Will
- Lawyer Can Safe-keep a Will
- If a nominated executor stops responding before the probate petition, then a lawyer who is safekeeping their client's will can 🔑 file the will in court.
- Lawyer Can Safe-keep a Will
- NY Wills: Power to Continue Decedent's Businesses
- An executor given a discretionary power to continue the decedent's business cannot use general assets of the estate to continue various businesses of the testator: "such authorization merely grants to the executor the power to conduct the various businesses with the funds already invested in them at the time of the testator's death, and to subject only these funds, and not the general assets of the estate, to the hazards of the businesses." Estate of Muller, 24 N.Y.2d 336 (1969).
- NY Wrongful Death
- Fiduciaries determine whether to commence a wrongful death proceeding, not the court. See ➡️ Driving the Estate: The Fiduciary’s Journey in Matter of Pugach.
- Peak Trust Company
- Power of Attorney
- Privacy
- Healthcare Information
- Health care worker gets 2 years for accessing Ruth Bader Ginsburg’s medical records, AP, Nov. 7, 2024. "Trent Russell, 34, of Bellevue, Nebraska, . . . worked at the time as a transplant coordinator for the Washington Regional Transplant Community and had access to hospital records all over the region . . . ." He was charged and "convicted earlier this year of illegally accessing health care records and destroying or altering records at a jury trial." He was charged "with publishing that information on the internet in 2019," but a jury acquitted him on this count. "[A]t one point [he] suggest[ed] that perhaps his cat walked across the keyboard in a way that mistakenly called up Ginsburg’s data. . . . [U.S. District Judge Michael] Nachmanoff, in issuing his sentence, said he took into account the fact that Russell has a sick step parent who might need care. The judge noted 'with some irony' that the details of the stepparent’s health problems are under seal.
- Healthcare Information
- Private Placement Life Insurance
- Private Placement Life Insurance: A Tax Shelter for the Ultra-Wealthy Masquerading an Insurance, Senate Finance Committee, Feb. 21, 2024.
- "[T]he Prudent Investor Rule [is] a rationalization of a trustee's authority to maximize the economic value of the trust estate." Lance Liebman in Foreword to Restatement 3d Trusts, vol.3.
- Prudent Investor Standard
- The prudent investor rule has been called "[t]he most challenging part of the . . . subject" of trust administration. Foreword in Restatement 3d Trusts vol.2.
- What is it?
- The standard is a "modest reformulation of the Harvard College dictum and the basic rule of prior Restatements [that] seeks to modernize trust investment law and to restore the generality and flexibility of the original doctrine." Restatement 3d Trusts: PIR.
- Where found?
- Prudent-investor principles are articulated in Restatement Third of Trusts. They were first articulated in 1992 when the Restatement Third Trusts: Prudent Investor Rule was originally published, and they were articulated again in 2007 when the 1992 Prudent Investor Rule was republished as Volume 3 of Restatement Third Trusts.
- New York: See 🖇️ NY Prudent Investor Act.
- Real Property
- Research
- Digital Libraries
- New York Bill, Veto and Recall Jackets
- New York Fair Hearing Decisions by the Office of Temporary and Disability Assistance – "[Y]ou can search all of the Fair Hearing decisions issued by the Office of Administrative Hearings since November 1, 2010."
- New York Slip Decisions
- New York State Library: A-Z Databases
- New York Surrogate's Court Records: 🖇️ WebSurrogate
- Residuary Devise
- Retained Limited Power of Appointment
- A trust grantor can reserve a limited power to change trust beneficiaries.
- Federal Estate Tax: The property is included in the decedent's gross estate because the grantor retained "the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom." IRC § 2036(a)(1).
- Retained Possession or Enjoyment of Trust Property
- A trust grantor can retain the possession or enjoyment of trust property.
- Federal Estate Tax: The property is included in the decedent's gross estate because the grantor retained "the possession or enjoyment of . . . the property." IRC § 2036(a)(2).
- Retainer Agreements
- 🔑 Sample Retainer Agreement for Nursing Home: Valuable Language for Collection and Guardianship Services
- Collection services: 🔑 Sample hybrid billing agreement.
- Guardianship services for nursing home: 🔑 Sample language.
- Retirement
- Rule Against Perpetuities (RAP)
- SECURE Act (2019)
- Setting Every Community Up for Retirement Enhancement (Secure) Act of 2019 (P.L. 116-94).
- SECURE Act Regulations
- SECURE Act 2.0 (2023)
- Social Security
- "Social Security and Supplemental Security Income (SSI) beneficiaries will receive a 2.5 percent COLA for 2025." [Fact Sheet]https://www.ssa.gov/news/press/factsheets/colafacts2025.pdf), ssa.gov.
- Specific Devise
- A type of 🖇️ devise.
- A specific devise is a preresiduary devise. C.f. 🖇️ residuary devise.
- See 🖇️ NY Specific Devise.
- Tax Basis
- Tax Loss Harvesting
- "Tax-loss harvesting using long and short positions has significantly increased in popularity. However, caution is warranted regarding several income tax issues, including the economic substance doctrine, fee deductibility, and passive activity losses." Katrina Crafton Fluet & Patrick J. McCurry, Key Takeaways | Family Offices: Evolution & Efficiencies, McDermott Will & Emery, Oct. 29, 2024.
- Tax Policy
- Economic Incentives: Tax deductions are strategically used to influence behavior by reducing the cost of certain actions, encouraging employers and individuals to align with policy goals.
- Daniel Schaffa, Reimagining the Deduction for Employee Compensation, 57 U. Mich. J. L. Reform 417 (2024). This article proposes restructuring the employee compensation tax deduction to incentivize employers to hire and raise wages for low-wage workers, aiming to address wage stagnation and improve labor market participation.
- Populism and Taxation
- Economic Incentives: Tax deductions are strategically used to influence behavior by reducing the cost of certain actions, encouraging employers and individuals to align with policy goals.
- Tech: Privacy
- ➡️ NY WebSurrogate: Protecting Privacy or Limiting Access?
- IDeviceHelp, STOP Your iPhone From listening to Your Private Conversations!, YouTube, Sept. 6, 2024.
- Transfer on Death Deed
- Trustee
- Selecting a Trustee
- Individual
- Professional
- Corporate
- Reununciation
- Disqualification
- Incapacity
- Other Inability to Act
- Acceptance
- Resignation: Once a trustee accepts the appointment, can the trustee resign?
- Removal
- Vacancy of Trustee
- New York: A court can fill a vacancy of a trustee under SCPA 706 or SCPA 1502.
- Duties of Trustee
- Accounting
- Selecting a Trustee
- TX Wills
- Writing
- ZineHS
- A tag on WTE that collects posts that explore the intersection of law and creativity. See ➡️ Welcome to ZineHS.
- The tag: ➡️ https://www.willstrustsestates.info/tag/zinehs/
- Posts:
- ➡️ Welcome to ZineHS
- 🔑 Visual Representation of Boolean Search Operators
- ➡️ Specific Statutes v. Case-by-Case Flexibility
- ➡️ Automation: Publishing Ebooks from Outlines and Blog Posts from Files
- ➡️ Restarted and Shared the Outline
- ➡️ Google Alert: Quick Notice for My Automation Blog Post
- ➡️ One Outline to Many Ebooks
- ➡️ Today’s Events: Think Tank Session and Loper Bright Webinar
- 🔑 Optimizing LinkedIn Embed Code In a Blog Post
- ➡️ Celebrating Professor Gerry Beyer: A Mentor from Afar
- ➡️ How AI Gives Me Confidence to Contribute to Professional Discussions
- ➡️ Decoding Handwritten Legal Decisions with ChatGPT: A Case Study
☕
Support: If you found this information useful, please consider supporting this website and my research by becoming a Paid Subscriber or buying me a coffee. Your support helps keep this site running and allows me to continue providing valuable content.
Hani Sarji
New York lawyer who cares about people, is fascinated by technology, and is writing his next book, Estate of Confusion: New York.
Leave a Comment