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How Can a Revocable Living Trust Help Protect Assets from Estate Taxes in New York?

How Can a Revocable Living Trust Help Protect Assets from Estate Taxes in New York?

Will Putting Assets into a Revocable Living Trust Help Avoid Estate Taxes in New York?

Estate taxes are taxes levied against a person’s estate before any of the proceeds can go to the beneficiaries, reducing the overall value of the assets. How much an estate may be taxed is dependent on the value of the estate. In New York in 2023, estates that were valued at a minimum of $6.58 million could have a tax rate between 3-16% on that estate. The amounts can change from year to year to keep up with inflation. There are also federal estate taxes that in 2023 began for estates valued at $12.92 million. The estates below those thresholds may not face estate taxes, but if someone is doing long-term planning, they might want to consider whether or not that could change.

One exception is for the federal estate tax when one spouse inherits directly from the other, which can protect up to $25 million of the estate. Another exception is for New York real estate owned by someone who’s not a resident of New York. That real estate would be subject to whatever estate taxes are assessed by the owner’s state of residence.

Technically, that means that putting assets into a revocable living trust may not help the estate avoid estate taxes if the estate’s value at the time of death exceeds the minimums established by New York and federal laws.

What Is a Revocable Living Trust?

A trust is a legal means of putting assets together under the trust’s umbrella so the trust owns the assets, not the individual. This can be done in conjunction with a last will and testament or in replacement of one.

Some of the primary advantages of using a revocable living trust include:

  • The grantor (the person who put the assets in the trust) can revoke the assets from the trust at any point during their lifetime. If they’ve named beneficiaries to specific assets and changed their mind, they can remove the assets or name a different beneficiary. This is the main difference between a revocable living trust and one that’s irrevocable.
  • The grantor can continue to use the assets in the trust during their lifetime.
  • The assets in the trust usually don’t have to go through probate, which can be time-consuming, expensive, and is a public process. The details of the trust can remain private, and the assets will likely be distributed much more quickly than if they have to go through probate.
  • Assets named in the trust are not subject to gift taxes in New York.

Are There Disadvantages to Using a Revocable Living Trust?

As with any estate planning tool, there are not just pros but some cons to take into consideration.
Any assets that are to be distributed to named beneficiaries must be assigned to the trust during the grantor’s lifetime. If any are not part of the trust when the grantor dies, they’ll likely have to go through probate.

Setting up a trust can be more expensive than setting up a will, depending on the estate’s specifics. Any changes to the trust will incur more legal fees as well (but that’s also true of changing a will).
If more assets are acquired after the trust is established, the grantor must take the legal steps to have them transferred to the trust. Those assets will go through probate if they aren’t before the grantor dies.

A trust can’t do everything. For example, if the grantor has minor children who would become orphaned after the grantor’s death, the grantor needs to set up a will designating who the guardian should be. Guardians can’t be named via trusts. Without the will, the courts would determine the guardian. There are times when some assets should be assigned via a will rather than a trust. To learn more, speak with an experienced wills and trusts attorney.

What About an Irrevocable Living Trust?

This is a similar type of trust, except that once the assets are transferred to the trust and the beneficiaries are named, the grantor can no longer control or change them. That can give people concerns if they think they might want to change things as they go along. But there are some reasons to consider an irrevocable living trust, too.

  • Assets in the irrevocable trust are protected from lawsuits. This is especially beneficial for people whose careers make them more subject to lawsuits, including people in the medical field.
  • If one or more beneficiaries are disabled, the irrevocable trust assets won’t be used against them when applying for government aid.
  • The assets are secured for use in a possible future nursing home stay, and they’re not taxed while in the trust.

What Should I Do if I Need to Begin Setting Up Estate Plans?

Call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. Every estate is unique and has different needs. We can walk you through the specifics of your estate to see what might be the best approach to protecting your assets and ensuring your wishes are carried out as you want with as little tax and probate fees as possible. Our team of experienced, knowledgeable estate planning attorneys understands how important this is to you, and we’ll work with you to achieve your goals.

What Is Lead Paint Poisoning?

Lead paint poisoning occurs when lead builds up in the body as someone is exposed to it. It can be dangerous, even deadly, as it can affect many of the body’s major organs. It’s particularly harsh on young children, as it can affect their physical and mental development. It’s often found in the paint in older buildings. New York City banned using lead paint in 1960, but many buildings are older than that and may still have lead paint on the walls.

Unfortunately, in many cases, lead poisoning doesn’t present noticeable symptoms until the lead levels are high. The following are some symptoms to watch for in adults and children.

Symptoms in Adults

  • Joint, muscle, head, or abdominal pain
  • Anemia
  • Trouble with memory or concentrating on things
  • High blood pressure
  • Mood disorders (including conditions such as depression or mania)
  • Lowered sperm count or abnormal sperm
  • Pregnant women may experience miscarriage, premature birth, or stillborns

Symptoms in Children

  • Abdominal pain, vomiting, or constipation
  • Loss of appetite and related weight loss
  • Developmental delays and learning disabilities
  • Irritability that appears unrelated to ages and stages or other known conditions
  • Loss of hearing
  • Seizures

When a pregnant woman has lead poisoning, the newborn baby may have it, too. Some symptoms for the infant are premature birth, low birth weight, and slower-than-expected growth and development.

Which Jobs Can Have a Higher Risk of Exposure to Lead Paint?

While people can end up with lead poisoning if they live in older buildings with lead-based paint, many cases today happen while someone’s at work. Several industries can cause employees to be exposed to lead paint, including (but not limited to) the following.

  • Construction (including demolitions and renovations of older buildings). Any work that involves tearing down or renovating older buildings may put workers in contact with lead paint. The Environmental Protection Agency (EPA) estimates that as many as 87% of homes built before 1940 still have lead paint, so working in those buildings poses a risk. That includes projects such as painting and plumbing.
  • Manufacturing that involves lead products. While lead paints were banned for homes in the U.S. years ago, lead is still used to create the paint used for painting lines on roads.
  • Bridge, tunnel, and road work. Many transportation structures and roads have lead paint in or on them, and lead exposure can occur when they need repair or replacement.
  • Auto repair. Lead paint was phased out of auto manufacturing years ago, but given the popularity of older vehicles for those who like to work on them, it is still a risk.
  • Foundry work, welding, and scrap metal recycling. Because of its durability and resistance to corrosion, lead paint is often found on items at foundries or welding shops.
  • Mining. Many structures involved in mining operations use lead paint because of its versatility and durability.

What Rights Do I Have if I Was Exposed to Lead Paint at Work?

This can be tricky. Because of New York’s workers’ compensation laws, it’s possible that the employee who suffered lead poisoning at work won’t be allowed to sue the employer if they’re filing for workers’ compensation. However, that’s not always the case, depending on the specifics of the poisoning. The best way to determine if you can sue your employer is to talk to an experienced lead paint exposure attorney. 

Even if the employer can’t be sued, there may be third parties involved who could be taken to court. This is not a complete list, but it provides some idea of who the third parties are to claim damages from.

  • Site owners. If the site owner hasn’t taken steps to protect workers from lead paint exposure, they could be considered negligent.
  • Product manufacturers. If the workers use protective gear such as respirators or protective clothing to work in areas with lead paint and the gear fails, they could cite the manufacturers for the failure.
  • General contractors. The oversight of any project involving lead paint should include detailed plans for preventing exposure and protecting workers. They should also have employees undergo regular lead testing and send someone home if they reach specific lead levels.
  • Subcontractors. These may be assigned duties by the general contractor for the prevention and testing of lead, and if they don’t do those duties, they could be liable. 

What Should I Do if I’m Ill Because of Lead Paint Exposure?

Be sure to get a doctor’s diagnosis and treatment plan as soon as possible, even if your symptoms seem mild. Lead poisoning doesn’t always cause the victim physical problems until it’s advanced, so getting treatment as soon as possible is crucial.

Then call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. Lead paint poisoning cases can be complex to handle in terms of claims and lawsuits. We can guide you through the specifics of your case to determine what might be the best approach to work toward the best possible outcomes.

One thing to avoid doing, if at all possible, is to begin discussions with your employer’s insurance representatives or lawyers. Their primary interest is the employer and how to proceed with paying out as little as possible in damages. They may try to convince you that a settlement offer they’ve made is as good as it’s going to get, when it’s possible that it’s much too low. Don’t negotiate with them. Instead, send all communications to your attorney.

Thinking and talking about what happens at the end of life can be difficult, and yet it’s also the best way to ensure someone’s explicit wishes are carried out. Here’s one aspect to consider and discuss with loved ones.

What Is a Health Care Proxy?

A health care proxy is a legal document that you can draw up to assign someone the rights and responsibility to make health care decisions on your behalf should you become incapacitated, whether temporarily or permanently. The person named to make decisions is called the agent.

Who Can Be a Health Care Proxy Agent For Me?

You must appoint an agent who is at least 18 years old. That person should be someone you have a great deal of trust in, as they may need to make critical decisions on your behalf. You’ll want to go through your wishes in detail with the agent, both to ensure they understand them and know what to do and to determine that they are willing to do them. If they have concerns over carrying out your wishes, you may need to find another agent.

Many people name a spouse, family member, or close friend. It’s also possible to name your doctor, who would have greater medical insight and training. But if you choose a doctor, that doctor can no longer act as your physician if the proxy goes into effect. They can either be the agent or the proxy, but not both at the same time.

It’s a good idea to have a secondary agent noted in your proxy in the event that the first one named is unable to act for some reason when they’re needed. The same criteria apply to the backup agent as to the primary agent.

Another thing your proxy cannot do is be a witness on the proxy form itself. The state requires two witnesses who are each at least 18 to witness and sign the form, and neither can be the proxy (or the secondary proxy, if applicable).

What Can a Health Care Proxy Do in End-of-Life Scenarios?

The proxy may have a significant role in end-of-life decisions when the person they represent can’t make those decisions themselves. The key here is that the proxy will have exactly as much authority as the person they’re representing allows them to have.

Among the authority the proxy agent can have:

  • They can determine whether the incapacitated person should or should not receive different treatments, such as having food and water delivered through feeding tubes, intubation to assist with breathing, etc.
  • If treatments are to be used according to the terms of the proxy, the agent can choose which treatment to use.
  • The agent can decide when any treatment should be stopped.
  • The agent can specify which, if any, organs are to be donated if the patient dies. The proxy form allows selective choices for organ donation, including whether or not any available organ can be donated or just specific ones, if they can be used only for transplantation, or only for research or education.

Could My Health Care Proxy Agent Be Sued for Making the Decisions I Asked Them to Make?

No. If the agent is acting in good faith and doing what the proxy asked them to do, they can’t be legally challenged. This is one of the reasons a health care proxy is a valuable tool. If there are family members who don’t approve of the choices made by the patient, they might sue to stop treatment (or the cessation of treatment) if there is no health care proxy in place. It’s also why it’s highly advisable that you have an experienced estate planning attorney assist in drawing one up to ensure it’s legally valid.
The proxy agent also cannot be charged with the patient’s medical bills. Those can go only to the patient themselves or to the estate if the patient passes away.

Who Should Have a Copy of My Health Care Proxy?

Your doctor and health care staff should have copies, as should the person(s) named as agent in the proxy. Beyond that, it’s good to give close family members and friends copies. It’s also a good idea to put a note in your wallet stating that you have a health care proxy in place and naming the agent in case there’s an emergency situation where you can’t communicate that fact to medical personnel.

Who Is Required to Act on the Proxy Agent’s Decisions?

With a properly drawn up health care proxy, all hospitals, doctors, and other health care professionals and facilities are required to act on the agent’s decisions. That’s another reason all medical professionals someone works with should have copies of the proxy, so they’re aware of it and able to work quickly with the agent when necessary.

What Should I Do if I Want to Draw Up a Health Care Proxy?

Call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. We can review your wishes and plans and how a health care proxy would help ensure your wishes and plans are followed. It’s essential to ensure all the details that the state requires are taken care of so the proxy can go into effect as soon as it’s needed and not cause valuable time to be lost while others try to determine what your wishes are.

Most people understand the concept of a last will (sometimes called a last will and testament). But they may not realize several other mechanisms can work, separately or apart, from the last will to ensure the estate is handled precisely as the estate’s owner wants it to be. One of those mechanisms is a personal property memorandum. Here’s what you need to know.

What Is a Personal Property Memorandum?

In order to understand how a personal property memorandum can be a valuable addition to a last will, it’s necessary to understand what the memorandum is and does. It’s a document that, on its own, isn’t legally binding. But including it in a last will or trust can help give the document more weight. Creating a personal property memorandum without tying it to a will or trust will not guarantee that its provisions will be honored.

The memorandum is usually a detailed list of specific personal property items and who they should go to after the estate’s original owner (known as the testator) has passed away. This can include anything from works of art to individual coffee mugs. The items don’t necessarily have to be of enormous dollar value but can include things of sentimental value instead–and those are things that can cause disagreement if left to the beneficiaries to sort out for themselves.

What Items Can’t Be Included in a Personal Property Memorandum?

As the name implies, this form is meant only for personal property items, which means things that don’t have an official title record. Among the things that can’t legally be included are real estate, business ownership or interest, bank accounts, copyrights, or stocks or bonds.

Do I Need a Personal Property Memorandum if I Already Asked My Beneficiaries What They Want?

It’s highly recommended that all bequests be documented. Verbal agreements are the types of situations that can cause disagreements and even lead to challenges in court, especially if someone feels that another beneficiary has unfair advantages in selecting personal property items. When the property is detailed through a memorandum and included in the will, it makes it much more difficult for the beneficiaries to claim conflicting wishes and bequests. Working with an experienced estate planning attorney can help you draw up a personal property memorandum in coordination with your will.

How Should a Personal Property Memorandum Be Drawn Up?

As long as it’s noted within the will, the personal property memorandum can be straightforward. It doesn’t require formal legal language and can essentially be a list of items noting to whom each item should go. Including each beneficiary’s names, addresses, and contact information is a good idea. If possible, including multiple forms of contact for each beneficiary is valuable.

Specificity is vital to the success of this document. Suppose someone notes that they’d like their brother to receive the funny coffee mug, but the testator has multiple brothers and several mugs that could be described as humorous. In that case, there’s no guarantee the mug in question will get to the selected brother.

As for formatting, it can be very simple, just a typed list or even handwritten. The critical things to do to make it legally enforceable are to sign and date it and to be sure to mention it in the formal last will.

Should I Just Put All Those Details in My Last Will?

You could, but there’s a good reason not to. These are often small items with not a lot of monetary value. They can build up quite a list depending on the number of items and beneficiaries. If you include them in your will and then change your mind about one or two of them, you’ll need to redo the will. But if you draw up a separate memorandum that’s mentioned within the will, the only thing you’d need to do is make a brief change to that document. It could be simpler, require less time, and be more cost-effective than detailing those arrangements in the will itself.

What Else Should I Do to Ensure These Personal Items go to the Proper Beneficiaries?

New York law doesn’t view a personal property memorandum as legally binding, but having a detailed memorandum and noting it in the will can make it more difficult for beneficiaries to argue about it. It’s also a good idea to choose the will’s executor with care, as they’ll be the ones tasked with overseeing settling the estate and ensuring those personal property items are distributed according to your wishes.

When selecting an executor, choose someone trustworthy and who you believe will adhere to your preferences. Then, take the time to sit down with them and go over both the will and the personal property memorandum in detail. This is a valuable exercise because what might seem clear to you may not to someone else, and that gives you the opportunity to clarify things further.

What Should I Do if I Want to Draw Up a Last Will and Personal Property Memorandum?

Call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. Our team of knowledgeable, experienced estate planning attorneys understands how important it is for you to ensure your estate is handled exactly as you wish it to be. We can walk you through the details of your estate and look at the various estate planning tools to determine which might be best for you.

When someone is the victim of medical malpractice, they may not realize it at first, or they may be so caught up in trying to recover that it doesn’t occur to them to seek legal help as soon as possible. That’s unfortunate because New York has restrictions on when medical malpractice suits may be filed. Read on for what you need to know.

What Is a Statute of Limitations?

A statute of limitations is a legal period in which someone can make claims or file lawsuits to request financial compensation because of harm done to them. Once the statute of limitations has passed, expecting a court to consider a case is nearly impossible. The likely outcome of filing too late is that the defense attorneys (attorneys for the other side) will ask to have the case dismissed because it’s past the deadline, and the court will most likely comply with that request.

In New York, the statute of limitations for filing a medical malpractice suit is 30 months (2 ½ years) from the date of the procedure that caused the malpractice. There are a few exceptions to this.

  • If the patient was a minor at the time of the treatment, they have three years from the day they turn 18 to file a claim. However, the claim must only be for something that happened in the previous ten years.
  • If a foreign object was left inside a patient’s body (during surgery, for example) and the object caused an injury, the patient has one year from the date the object was found or should have been found to file a claim.
  • If the patient doesn’t know there’s a problem and symptoms don’t present right away, it’s possible the 30 months could be extended. An example of this would be a doctor either misdiagnosing a condition or not diagnosing a condition at all. The patient goes home and doesn’t realize there is, in fact, something wrong with them until more than 30 months have passed. If it can be proven that the patient was un- or misdiagnosed, they may still be able to file a medical malpractice claim. Note that the foreign objects are medical in nature and not meant to be left inside the body, such as scalpels or gauze. Foreign objects such as pacemakers or intrauterine devices (IUDs) that are deliberately placed in the body, but may be forgotten about later, are not eligible for malpractice in this situation. 
  • If the patient dies as a result of the malpractice, the family can file a lawsuit for wrongful death. That needs to be filed within two years of the death. 

Working with an experienced, knowledgeable medical malpractice attorney can help you determine if your case is still within the New York statute of limitations.

What Is Needed for a Successful Medical Malpractice Suit?

To successfully litigate a medical malpractice case, the person filing the claim (the plaintiff) must prove four things.

  • Duty of care. The medical professional owed the patient a duty of care. Often all that’s needed to prove this is the fact that there was a doctor-patient relationship demonstrated by the patient being seen by the doctor. It doesn’t mean the medical professional had to be perfect, but they had to follow the professional standards as closely as possible.
  • Breach of the duty of care. This means the medical professional didn’t honor the duty of care through negligence or omission. To prove this, the plaintiff and their attorney should be able to demonstrate that the care given (or not given, depending on the case) didn’t meet professional standards within that medical specialty.
  • Injury. This can be the most challenging point to prove, and it’s entirely dependent on the two points above. The medical professional owed the patient a duty of care but didn’t live up to that commitment. The patient was harmed because of the breach of the duty of care. The injury must be connected to the breach of the duty of care.
  • Damages. This demonstrates that the plaintiff faced damages because of the medical malpractice. Typically this is in the form of out-of-pocket medical bills, lost wages due to time away from work or no longer being physically able to work, and ongoing expenses for things like physical therapy. It may also be noneconomic damages, such as the trauma the patient experienced because of the malpractice.

What Should I Do if I Think I Have a Medical Malpractice Case?

Call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. Medical malpractice cases are complex. They’re also likely going to involve lawyers for the medical provider who are experienced in getting these cases reduced or dismissed, so having an experienced, knowledgeable medical malpractice attorney working on your behalf is highly recommended.

There is one thing you should never do when getting ready to embark on a medical malpractice case, and that’s have any conversations or communications with the medical provider’s insurance company or attorneys. Their primary goal is to reduce or dismiss any liability for their client to avoid having to pay the claims. They may try to get you to say something that could be interpreted as not holding their client responsible, or they may try to coerce you into agreeing to a much lower settlement than you might be eligible for. Don’t respond to any communications, but forward them to your attorney instead.

Medical malpractice is a complicated area of personal injury law, and it can be difficult to come to the realization that a medical professional someone has trusted with their health and well-being may have been negligent in such a way that the patient suffered harm, potentially long-term or permanent. While there are myriad forms medical malpractice can take, there are some unfortunately all-too-frequent situations that show up as malpractice. Read on to learn more.

What Is Medical Malpractice?

Medical malpractice happens when a patient is injured or harmed because a healthcare professional or hospital was negligent or guilty of an act of omission. This can happen at any point during someone’s medical treatment, from the initial diagnosis to hospital discharge and aftercare.

To prove medical malpractice in court, the following must be established.

  • Duty of care. The medical professional or organization has a duty to follow the strictest standards of care for every aspect of the patient’s diagnosis and treatment.
  • The duty of care was breached. Whether through negligence or an act of omission, the medical professional or organization did not adhere to the duty of care.
  • Causation. Because the duty of care wasn’t followed, harm or injury was caused to the patient. This can be the most challenging part to prove, both because it involves proving the medical professional or organization didn’t adhere to the duty of care and because that breach of duty directly caused harm. If causation can’t be proven, the case will not succeed.
  • The injury caused damage to the patient. These can be financial, such as extensive out-of-pocket medical expenses or loss of wages due to the inability to work, or it can be things like the patient becoming disabled or experiencing pain and suffering due to the injury.

To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.

What Are the 5 Most Common Causes of Medical Malpractice in New York?

As noted above, nearly countless variations exist on what constitutes medical malpractice. Here are the five most common causes.

  • Errors in diagnosis. This can include either misdiagnosing a condition or illness or failing to diagnose a problem altogether. An example would be a patient who is told they’re having a panic attack when in fact, they’re having a heart attack. Because it was misdiagnosed, the heart attack could lead to long-term complications or even death when it might have been treated successfully if diagnosed in the first place. Keep in mind that this also happens in dental offices when dentists misdiagnose dental problems or don’t properly test and diagnose existing conditions that can worsen and cause pain and extensive (and expensive) subsequent treatments.
  • Errors during surgery. This is a vast category that encompasses everything from performing the wrong type of surgery or on the wrong body part, surgical instruments left inside bodies, or incorrect use of monitors and machinery.
  • Errors in drug prescriptions. This category has several variations, including prescribing the wrong medication or medication to which the patient has indicated they’re allergic, not prescribing a medication at all, or ordering an incorrect dosage, all of which can harm the patient.
  • Conditions not treated. This includes situations where a medical professional neglected to take the correct steps to diagnose or treat a condition. For example, a doctor may not request tests that would have indicated a problem needing immediate treatment, and because they didn’t test, the patient suffered an injury.
  • Injuries during childbirth. These may involve either the mother or the child, or both. It can involve anything from nerve damage to broken bones or even brain injuries.

What Is Wrongful Death?

Wrongful death happens when a victim dies due to the wrongful conduct, including negligence, of another. This appears in various areas of personal injury cases, including medical malpractice.

Similarly to proving medical malpractice, wrongful death must prove:

  • The duty of care was breached by the medical professional or organization.
  • Because of that breach of duty of care, the victim died when they likely wouldn’t have otherwise.
  • The victim had survivors in the form of a spouse, children, or other dependents or beneficiaries.
  • The survivors were caused financial damages by the victim’s death, such as a family that no longer has an income provider.

What Should I Do if I Suspect Medical Malpractice Happened in My Medical Case?

Call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. Medical malpractice is not something someone should try to mitigate on their own. It’s a complicated area that benefits from working with our team of experienced, knowledgeable medical malpractice attorneys. You can be sure the medical professional or organization accused of medical malpractice will fight the charges as hard as they can, so having an attorney devoted to your side is a must.

Something it’s imperative you do not do: Respond to any communications with the other parties in the case, their insurance representative, or their attorneys. Because their goal is to remove all or most liability from their client, they could try to find ways to make you say things indicating you don’t hold their client responsible. They could also try to get you to accept a much lower settlement than you could earn if the case goes to trial. Whether they contact you by phone, email, or letter, don’t respond; just send the communications to your lawyer.