914.347.1292On June 8, 2022, Rosenthal & Markowitz, LLP’s very own Sherry A. Bishko, Esq. was sworn in as Vice President of the Westchester Women’s Bar Association (WWBA) at the WWBA’s annual dinner and installation of officers at the Mamaroneck Beach and Yacht Club in Mamaroneck, New York! Sherry is also co-chair of the WWBA Mentorship Committee which pairs law school students and new lawyers with mentors in the Westchester County legal community. Rosenthal & Markowitz, LLP is a long-time supporter of the WWBA and remains committed to further the mission of WWBA which is promoting justice for all, regardless of sex; to advance the social, economic and legal status of women through the law.
Public Sector Employment Night at the Elisabeth Haub School of Law
“Sherry A. Bishko, Esq. Co-Chair of the Westchester Women’s Bar Association’s (WWBA) Mentorship Program co-developed and attended a Public Sector Employment Night at the Elisabeth Haub School of Law at Pace University on Thursday evening, April 7, 2022. The panel discussed public sector employment opportunities for the law students and was a rousing success!”
Estate Tax Primer 2022: A Summary of The Law of Estate Taxes
The following is a general discussion about the current law of estate taxes. It is meant to supplement a conversation with an attorney and should not be used for specific estate planning without consulting an estate and/or tax planner.
Your “Estate” Defined:
The size of your estate. An estate consists of all assets you own when you die – whether the asset passes under your Will or passes directly to a surviving named beneficiary or passes to a surviving joint owner. Your estate includes, in some cases, assets which you gave away during your lifetime if you retain some sort of enjoyment and/or ownership interests. And your estate might also include prior taxable gifts.
Estate Taxes:
The Federal Estate Tax Exclusion.1
The good news is that estate tax is not computed on the entire value of a person’s estate. When computing the estate tax, every taxpayer’s estate is entitled to exclude a certain amount – called a federal exclusion – which reduces the size of decedent’s taxable estate. Assuming that a person has not made any taxable gifts during his or her lifetime which would reduce the exclusion amount, then a decedent’s estate would be eligible for the entire federal exclusion amount.
The exclusion amount is $12,060,000 for decedents who die in 2022. Note however, that for decedents dying on or after January 1, 2026, the exclusion reverts to $5,000,000 (indexed for inflation) unless Congress acts to extend the exclusion amount or reduce the exclusion amount. Taxable estates that exceed the exclusion amount will have the excess taxed at a flat 40% rate.
If a married couple is planning, the survivor of the married couple may be able to use his/her own exclusion amount plus any unused portion of the first-dier’s exclusion amount. This mechanism to carry over the first-dier’s unused exclusion amount is called “portability”. If both spouses die between 2022 and 2025, they could have a combined exclusion amount of $24,120,000. To elect portability, it is necessary to file an estate tax return in the first-dier’s estate. Again, even if no tax is due, the return must be filed.
The New York State Estate Tax Exclusion.2
The exclusion amount is $6,020,000 for decedents who die in 2022. If the decedent’s taxable estate is below the exclusion amount, then there is no NYS estate tax. NYS does not recognize portability to recapture the unused exclusion amount of the first spouse to die. When computing a decedent’s taxable estate, NYS does include some prior taxable gifts, but NYS does not include real or tangible property located outside of NYS. If the taxable estate is below the exclusion amount, then there is no NYS estate tax. NYS has added a “phase out” amount of 105%. If the taxable estate is between the exclusion amount and the phase out amount (referred to by some as a “black hole”), then the estate tax could be higher than the amount by which the estate is larger than the exclusion amount. I realize this makes no sense, but it is the law. There are however some ways to reduce the tax impact if a taxable estate falls within the black hole, and we can discuss them if appropriate for you.
If the taxable estate is equal to or exceeds the 105% of the exclusion amount, then the entire taxable estate is taxed (starting at dollar one). The maximum rate is 16%.
Gift Taxes:
A gift is a transfer during lifetime for no consideration. The giver of a gift is called a donor. The recipient of a gift is called a donee. The annual gift tax exclusion amount increased to $16,000 starting in 2022 up from $15,000 per donor per donee per year. A person can make an unlimited number of gifts per year to anyone (friends, relatives, strangers). A person can make larger gifts too, but gifts in excess of the federal exclusion amount require the filing of IRS form 709 and will reduce the lifetime federal exclusion amount by the excess.
Some gifts do not have a maximum: gifts for tuition and gifts for certain medical and medical-related expenses. Gifts for tuition must be made directly to the educational institution. Gifts for medical expenses must be made directly to the medical provider. Medical related gifts include paying for someone else’s health insurance premiums and long-term care insurance premiums and these gifts must be made directly to the insurance providers. To compute the federal estate tax, the IRS adds back in all prior taxable gifts3 made in or after 1976.
NYS does not have a separate gift tax, but NYS adds back in some prior taxable gifts for purposes of computing the NYS estate tax. NYS adds back in prior taxable gifts made within 3 years of decedent’s date of death, but will not add back gifts made prior to April 1, 2019, or gifts made on or after January 1, 2026 (unless the law changes again).
Even if the prior taxable gift is added back in to compute estate tax, gifting might still have beneficial income and estate tax effects.
The Marital Deduction.
In addition to the exclusion amounts, neither the IRS nor NYS impose any gift or estate tax consequence when married couples pass property between them during their lifetimes and at the death of the first spouse provided the assets pass to the surviving spouse (called the unlimited marital deduction).
The Charitable Deduction.
In addition to the exclusion amount and the marital deduction, both the IRS and NYS permit each decedent’s estate to take an estate tax charitable deduction which reduces an estate dollar-for-dollar to the extent of the decedent’s bequests to IRC-approved charities.
Step-Up in Basis Rules.
Unrelated to the exclusions and deductions, but also important for estate and income tax planning, is an asset’s original value – basically, its cost basis.
The value of decedent’s property is stepped-up to its value on the date of decedent’s death. This is called a step-up in basis. The date-of-death value becomes the new cost basis for the person inheriting the property. Basis will have an impact on the amount of gains tax (income tax) due when the property is sold.
The donee of the gift treats the gifted property at its cost basis when determining the amount of gain or loss if the donee sells the gifted property.
The inheritor of property treats the inherited property at its stepped-up basis when determining the amount of gain or loss if the inheritor sells the inherited property.
Note that property which is gifted away by decedent during his or her lifetime does not get a step up to the date-of-gift value. It is possible though for decedent to make a gift during his lifetime and retain some sort of interest for his or her lifetime (as defined by law) such as a life estate. If the donor retained (the correct) interest, then the value of the property is included in decedent’s estate. Yes, this increases the value of decedent’s estate, and an estate tax might be owing, but it is possible that no estate tax will be owing or that the estate tax might be lower than the income tax which would be imposed. It is always necessary to weigh the impact of estate tax vs income tax when contemplating gifting.
I Told My Spouse I Want a Divorce, Now What?
Telling your spouse you want a divorce is only the beginning. The next steps will depend on the reaction you get. Do the two of you want to settle things amicably? Aside from not wanting to be married anymore, are you able to work together in the best interests of your children?
If there are any domestic abuse issues, or you expect the process to be contentious, you will likely need to pursue traditional litigation. In other cases, Mediation or the Collaborative Divorce process may be the best approach.
Maintain Financial Status Quo and Gather Documents
You should both try to keep as calm and civil as possible. Try not to fight. Do not close or deplete any joint bank accounts. Instead, begin gathering all the information you can. You will need:
- Documents of all bank accounts and credit cards. Your goal is to obtain statements from the last five years.
- Tax returns.
- Real estate deeds. How property is titled is relevant to property division.
- List of property you believe is your own separate property.
- List of all the personal property and real estate you accumulated together during your marriage.
There are situations where one party has access only to a savings account. You might not have a checking account or credit card. You may not have access to any funds and worry how you will survive. Even then, before you access your one source of available funds, you need to consult with your attorney for advice on what to do next.
How to Tell the Children You are Getting a Divorce
If possible, as parents you should be together when you tell the children about the divorce. You need to reassure the children that they did nothing to cause the divorce. The divorce is strictly between their parents and that you will both still love them and take care of them.
This is a good time to consult with a family therapist to help the children through the process and help you know how to proceed with the divorce in ways that are in the best interests of the children.
Contact Family Law Attorneys at Rosenthal & Markowitz, LLP
For answers to your questions about the divorce process, whether through traditional litigation, mediation, or collaboration, contact our family law attorneys at Rosenthal & Markowitz, LLP. You can reach us online or by calling 914.347.1292.
Questions to Ask When Hiring a Divorce Attorney
Choosing a divorce attorney is almost like entering a long-term relationship. You need someone who is qualified and with whom you are also compatible. There are some questions to ask and ways to evaluate whether an attorney is the right divorce attorney for you.
How to Hire Your Divorce Attorney
Friends or relatives are often eager to recommend attorneys to you. This is helpful, but you want to be sure that the attorney is knowledgeable and experienced in family law issues. An attorney who obtained a great personal injury settlement for your brother’s neighbor’s uncle’s nephew may not be the right one to pursue your divorce.
It is a good idea to narrow down your search to about three attorneys. You will want to interview them all. You will be looking for someone:
- Whose primary practice area is family law.
- Who is trained in Mediation and/or the Collaborative Divorce process?
- Find out if the attorney has taken the requisite courses and has the requisite credentials.
- Someone who shares your philosophy. If you want to have a “nuclear war” and “win” at all costs, you will choose a different attorney than one who focuses on amicable settlements.
- Ask what will happen if your case is not right for Mediation or Collaboration. Will the attorney pursue traditional litigation?
- Determine the best way to communicate with the attorney. Phone calls? Email? Text messages?
Look at the attorney’s website. That will generally tell you the attorney’s practice areas and whether they are passionate about Mediation and Collaborative Divorce.
You will have a working relationship with this attorney, possibly for a long time. Although it is a professional relationship, at times it will feel personal. You want to feel a rapport. You need to feel comfortable with the difficult but necessary conversations you need to have about your family.
Contact Family Law Attorneys at Rosenthal & Markowitz, LLP
For answers to your questions about the divorce process, whether through Litigation, Mediation, or Collaboration, contact our family law attorneys at Rosenthal & Markowitz, LLP. We want to be sure you are comfortable with how we approach your divorce. You can reach us online or by calling 914.347.1292 to schedule a consultation.
How to Have a Child-Centered Divorce
No matter how you handle it, divorce is a traumatic experience for your children. But if you put your children’s needs above your own and work together with your spouse to focus on what is in the best interest of your children, you can ease their transition in ways that will have a positive influence on them that will follow them for the rest of their lives.
Where to Start
The first thing for you to do is settle the custody issue. From there, other issues can be resolved, like child support.
Focus on the needs of the children and answer their questions. Children want to know:
- Where will we live?
- Will we have to move?
- Will we need to change schools?
- What about extra-curricular activities?
- Will we lose our friends?
- Will we still see our other parent?
You may not be able to answer all these questions, but you can tell them it’s not their fault and that you both will continue to care for them. Consider that you will be co-parenting these children for the rest of their lives. Their needs will change as they grow, but you and their other parent will always need to work together as you both remain involved in their lives.
We tell our clients, “You are parents of these children, not until the end of the divorce, but for the rest of your life. God willing, you will be grandparents together. You should be able to get along. For the sake of your children, work toward a good relationship.” That is what it means to put your children first.
Mediation and Collaborative Divorce are Child Centered
Mediation and Collaborative Divorce are divorce processes that help to put the children first. One of the benefits can be to bring in a child-parent coordinator to help you learn how to communicate with your co-parent in positive ways. You learn co-parenting as an evolving process as you learn to work together in the best interest of your small children and as they grow through middle-school, high-school, college, and become parents themselves.
Parenting is a long journey. Your children will need you even when they are adults. It is important for you to build a relationship with your co-parent that always focuses on the best interests of the children, no matter how old they are.
Contact Family Law Attorneys at Rosenthal & Markowitz, LLP
For answers to your questions about how to have a child-centered divorce, or questions about the divorce process, contact our family law attorneys at Rosenthal & Markowitz, LLP. You can reach us online or by calling 914.347.1292.
My Ten New Year’s Resolutions For 2022
It’s that time again. My time for reflection, contemplation and self-flagellation. Every year I make New Year’s Resolutions with the best of intentions, but… I won’t even tell you when I stopped going to the gym and started eating popcorn in front of the TV, the last time I wrote a thank you note, or called to check in with my mother-in-law.
However, there are some resolutions that I can live with, and I want to share them with you. The list looks long, but each item is manageable and very important.
Here, in reverse order, are my New Year’s Resolutions for 2022.
If you would rather watch than read then here are 3 links to the same subject matter:
Part 1: https://vimeo.com/660769570
Part 2: https://vimeo.com/660770012
Part 3: https://vimeo.com/660770980
#10. Get some chocolate to snack on while you read on. This list might be a little stressful
#9. Find your current health care proxy form.
Review your health care proxy to make sure you have named the agents you really want to be making health care decisions on your behalf if you cannot make them for yourself. Also review the contact information to make sure it is up to date. It is possible that you aren’t friends with or trust the people you named the last time. Naming your now ex-spouse is probably not the best plan. Make sure these people are alive, able to assist you in your time of need, and will do what you want them to do. Then make sure that you’ve given the hcp to your agents, so they know they have this job to do.
#8. If you have signed a living will, make sure it says what you want it to say.
You might feel differently now about what kind of health care intervention you would want. If you never signed, maybe you might want to. At the very least, have a conversation with your agent(s), so they know what kind of care you do, and do not, want.
#7. Find your current power of attorney form.
Review your poa. There are many things to look for. Here are some of them:
- What year was it signed? NYS issued new forms in June 2021. If your older form is correctly signed, then the older form is still valid, but it will be easier for your agents to use the power if the agent can produce the most up-to-date form.
- Make sure it includes all the powers your agent needs. Nope, you will not know that just by reading it. But I am pretty sure that if you downloaded the form from the internet, that it is just the standard, basic form which does not include many very important modifications which an estate planning attorney will add.
- Make sure you have named the agents you really want to be able to access your financial information and assist you. Make sure these people are alive, still trustworthy, and will respect your values. Review their addresses.
- Review the gift-giving provisions in the poa. If you haven’t given your agent the power to make gifts on your behalf, you might need to rethink that if you might want your agent to do estate tax planning for you, Medicaid impoverishment planning for you, continue to support someone who you currently support, or you just might want the agent to give gifts to your important people on your behalf. If you have given your agent the power of, make gifts, you might want to modify the power to change the potential gift-recipients, or the amounts of the gifts, or eliminate this power altogether.
- If you have given out copies of a power of attorney form which you want to revoke or change, make sure you get them back from those people.
#6. Take a nap or walk around the block. You’ve earned it if you did the reviews listed in #7.
#5. Prepare to review your other estate planning documents. Before reviewing, make some lists:
List of all your assets and debts. List each item separately. For assets, list each account, piece of real estate, coop, condo, vacation home and time share; insurance policy, etc. If the asset has co-owners, name both. If the asset names a beneficiary, list the name of the beneficiary and the alternate beneficiaries. Also list the approximate value of each asset.
Some assets should name beneficiaries, many do not need to. Assets which are jointly owned or name a beneficiary do not pass under a Will. The terms of the Will do not affect how title of that asset passes. That may, or may not, be what you want.
The asset list will be useful to determine estate tax issues, if any, and to help determine whether a beneficiary can inherit that much money outright or needs a trust.
#4. Do an honest assessment about who you want to leave your assets to when you die.
Think about whether you want to, or can, leave assets to your potential beneficiaries outright. Sometimes leaving assets in a trust is just a better, safer plan. Some potential beneficiaries are minors, or not competent to handle assets, or might be facing creditors, or might be facing a potential matrimonial issue, or might be receiving governmental assistance.
#3. Do an honest assessment about the person/people who you named as executor.
Do you still trust this person? Maybe your children are older now and could do the executor’s job. Perhaps you want to name two people to be co-executors. If you name two people, then you must consider whether you want to require them to act together or you will permit them to act separately.
#2. Now read your Will.
Based upon the asset information you amassed and the assessment you’ve made about your potential beneficiaries’, see if the plans you made in your Will are still the plans you want implemented after you die.
Time for another break. Be kind to yourself and eat something tasty.
#1. AND THE MOST IMPORTANT ESTATE PLANNING RESOLUTION:
Talk with an estate planning professional about your facts and circumstances.
Information from AARP magazine or Forbes or the NY Times is interesting but is not necessarily relevant or even accurate for a NYS resident, and the author does not know you, your assets, your family, your planning goals.
The estate planning professional can work in conjunction with your accountant/tax preparer and your financial advisor. The estate planning professional should listen to you, review your current documents and information, and then will be able to make recommendations that address your issues, create, and implement your estate plan.
Estate Planning: Do You Have a Digital Inventory?
One aspect in estate planning which is often overlooked is creating (and updating) a digital inventory. Every person should develop a digital inventory – a list of digital assets and how to access them.
Generally, you could say that digital assets have no physical location and only exist inside a person’s computer. Strictly speaking, digital assets are crypto currencies and non-fungible tokens (NFTs), but we’re using the term more broadly – to encompass any non-paper asset (even if, like a checking account, it also exists in the real world) and access to information and assets.
Why it is Important for You and Someone Else to Have this Information
There are several reasons why you need to prepare, save, and then update this information:
We all create usernames, passwords, and answers to security question. Remember that each one should be unique and somewhat difficult. Most people juggle between 10 and 100 unique assets and/or points of access. It is easy to forget them or forget which are the current ones. Jotting down notes in a code that only you understand isn’t particularly useful. Letting your phone remember your passwords isn’t particularly secure.
You may need someone to help you access an account. You may be traveling or need assistance for some other reason. If you simply forgot your access information and if you are alive and competent, and if you remember your security code answers, then you can change the passwords yourself. If. If. If. If you are incompetent or impaired for some reason, or if you don’t remember, then no one can pay your bills or access your information, or re-register your car, or order food or other necessities on Fresh Direct or Amazon or whatever, unless you’ve made a plan. Here the plan is to create an Inventory.
The function of the Inventory is to have information ready for you and for a person you trust, so your Trusted Person can assist you.
After you die, someone (presumably the Executor of your estate) is going to need to access your accounts to collect your assets, stop unnecessary charges, maybe update your Facebook page, figure out your debts and taxes, and then make a distribution according to the terms of your Will.
Types of Digital Assets and How to Complete Your Inventory
Remember, we are using the term “digital assets” includes any non-paper assets and access to assets. At Rosenthal & Markowitz, LLP, we have developed a three-page Digital Inventory worksheet to assist you in making your own inventory. We include any asset and information, whether physical or non-physical, that you access electronically. When you have prepared your digital inventory, you have a written record of all the places and information which is relevant to you – all the information someone might need, or you might need, to access. The inventory is only as good as the information, so the inventory must be updated. We urge you to date the inventory and then re-date it every time to make a change. Your inventory should include username, password, and answers to your security questions.
Then, you need to give the inventory to someone you trust who you know will keep it safe and confidential. If something happens to you, or you are locked out of your email, your checking account, digital shopping network, or other important sites, you can contact the person who has your information so you can regain access to it.
For more information about developing a digital inventory as part of your estate planning, contact us at Rosenthal & Markowitz, LLP. You may also call 914.347.1292.