LAW OFFICE OF

Please do not hesitate to send an email if you have any general questions: bk@kearselaw.com. Mr. Kearse will be pleased to respond personally, (although please understand that he cannot and does not give legal advice to persons unless he interviews them thoroughly and signs a formal Engagement Letter with them). Please enjoy this website!

Biographical Information

1. BRENDAN P. KEARSE, ESQ. is the principal attorney of the firm. He is a graduate of Columbia University School of Law and of Williams College. Before starting his private law practice, he spent several years practicing at some of the largest firms in the City of New York. His legal career was preceded by one year of volunteer work at Covenant House (a shelter for runaway youth) and a period of study at Oxford University. Click to Email: bk@kearselaw.com

He has served as a Member of the Committee on Estate and Gift Taxation of the Bar Association of the City of New York. His published work has been cited approvingly by the highest court of the State of New York. He is admitted to practice in the State of New York and is court-certified to serve as a guardian, guardian ad litem and court evaluator.

Mr. Kearse serves as Chair of the Board of Elders Share The Arts, Inc., a non-profit organization devoted (i) to integrating the youth and seniors of New York City through projects that explore the history of the city and its residents, and (ii) to validating the worth of the city’s seniors, their creative expression, and their importance to the city’s vitality.

2. BENJAMIN H. MELLORS, ESQ. is admitted to practice in New York, New Jersey and Wisconsin. He is experienced in and focuses on matters of Will and Trust preparation, estate administration, trust administration, estate and gift taxation, and litigation including will contests and contested estate and trust accountings. He also serves as a guardian and advises other guardians of incapacitated persons. He is a graduate of Brandeis University and of the University of Wisconsin Law School where his distinguished achievement earned him membership in the Order of the Coif.

Click to Email: bhm@kearselaw.com

Legal Services

Estate Planning, Wills and Trusts. Mr. Kearse helps clients to write their Wills, to create trusts, and to do estate planning generally. He advises on how to minimize the estate and gift taxes that might otherwise be owed, while designing an estate plan that is sensitive to the needs and dynamics of your family. (See Common Estate Planning Techniques, discussed below). The best possible tax plan is not always the best estate plan, especially if it ignores (or creates!) tensions in your family. Fortunately, a good attorney can suggest a variety of tax-efficient compromises that will suit individual family circumstances.

Probate and Estate Administration. After someone dies, the surviving family members usually need to hire a lawyer. The lawyer goes to court to have the last Will declared valid (called “probating the Will”) or to inform the court that there was no Will. The court will formally appoint someone (the person named in the Will or a family member) to wind up the deceased person’s affairs and to distribute his or her assets. The lawyer also advises the person so appointed (called an Executor if there was a Will or an Administrator if there was not) in the fulfillment of his or her duties. Additionally, the attorney can prepare certain tax returns and represent the estate before the IRS if the estate is audited (as certain types of estates usually are). Except for very small or very simple estates, retaining an attorney is probably a very good idea.

Lost Wills, and Dying Without A Will. What happens if a relative dies and you cannot find his or her Will? First of all, you should search thoroughly for any Will. For example, try calling the lawyer who handled the sale of a house recently, maybe the lawyer also prepared a Will and is holding it in his or her vault. Also, trying calling the banks where your relative had accounts and ask whether he or she also had a safe deposit box. Sometimes people put their Wills in a safe deposit box (although they probably should not, because it makes finding and probating the Will much harder). If you have an exact photocopy of a Will, but not the original Will, it may be possible to probate the photocopy, although this is not the Surrogate’s Court’s first choice and they might resist allowing this.

Whether you cannot find the Will or there simply is no Will, the result is the same. New York law will dictate who gets property under the “intestacy rules”. Intestacy, or dying intestate, just means dying without a testament or Will. In essence, these rules say that if you die married with no children, your spouse gets your property. If you die married with children, the spouse will get the first $50,000 plus one-half of what remains but the children will share the other half, even if they are infants. This is an excellent reason to have a Will, by the way, if you have children: do you really want your fourteen-year-old to have as much money as her widowed Mom? Imagine what the teenage years will be like! Do you want a court-appointed guardian to hold your children’s money until age twenty-one, taking a fee each year, perhaps unsympathetic to your widow’s request for clothing or school money? It happens. If you die with no spouse and no children, then your parents get your property, or, if you have no living parent, your brothers and sisters get the property, with any deceased brother or sister also getting an equal share set apart that his or her children will share.

How does this process of distributing the assets (and paying the bills and taxes) happen when there is no Will? The process is almost identical to the probate process. You generally hire a lawyer to go to the Surrogate’s Court and file a Petition just as you would if there had been a Will, except that your Petition will state that there was no Will. The Court will insist that the property be divided up according to the intestacy rules, and it will watch over the estate more closely than if there had been a Will, requiring that the administrator put up a bond and get Court permission before selling any real estate, for example.

What if no one does anything and you think you should be getting part of the deceased relative’s estate? You should take the initiative and hire a lawyer! If no one in the family does anything for more than two or three months, at most, then something is wrong. Somebody will wind up controlling the property, rightly or wrongly, and then the fighting starts. To avoid it, just step forward and start the Court-supervised intestacy process yourself. The Court process ensures that everyone gets formal notice of what is happening and that no one gets cheated, accidentally or intentionally. The lawyer you hire will probably be paid from the assets of the deceased relative anyway, so if you were only going to get one-fourth of those assets, you’ll essentially only be paying one-fourth of the lawyer’s fee. This is not the time to indulge your fear of lawyers or the court system; you will regret it later.

At the risk of belaboring this point, I will give some examples: Whether there was a Will or not, you probably need to hire or at least consult with a lawyer within two or three months of your family member’s death. Harsh experience shows that frequently when there is no Will relatives behave as if jewelry, furniture and real estate is just up for grabs. They ignore the intestacy rules. Brothers of the deceased may just take over their deceased brother’s store or apartment building, at first just intending to run it to preserve it as a business, but later coming to think of it as “theirs”. Later the deceased’s twenty-something children realize they have essentially been robbed of their inheritance. Just because someone died without a Will does not mean that the family can just make their own private arrangements. Especially with real estate, you will discover (possibly not until many years later when you go to sell the property or when the next relative dies) that the money that was saved by not hiring a lawyer in a timely manner is lost ten-fold when a lawyer has to be brought in a decade later to clear up a very mixed up deed or to sue an aunt on behalf of someone who was fifteen when his mother died. Delay never fixes or resolves an estate: it just drives up the costs and results in family quarrels so bitter that people frequently do not speak for years. If someone has died, with or without a Will, you should consult with and probably hire an experienced lawyer to handle the estate. Get that ball rolling…

Will Contests. Sometimes people disagree about something as basic as whether a deceased person had a Will, whether they had one but revoked it or signed a new Will later, whether they signed the Will at a time they lacked capacity (due to illness, senility, etc.), or whether the true last Will or gifts contained in it were obtained by someone’s “undue influence” (i.e., improper pressure). A Will contest usually starts where somebody has a hunch that something smells fishy. For example: “Ray never told me he was leaving his nurse $25,000” or “Why would my brother have cut me out of the Will and left everything to our cousin? We weren’t fighting.” (A related proceeding often starts because someone thinks: “Hey, Ray had a Will. How come no one’s going to court to get it probated?”) Thus, the first step is always somebody trusting his or her instincts, gathering some information and calling a lawyer.

What will the lawyer do? First, he will examine the Will if you have a copy. Second, he will appear on your behalf when the Will is being offered for probate, effectively telling the judge that this Will might be defective even though it was signed in front of witnesses or may otherwise appear correct. The judge will permit the lawyer to examine the witnesses in sworn depositions, asking questions like: “Did the person who made the Will appear to be frightened or bullied into signing the Will? Who was there? Did he seem like he was in command of his faculties that morning? Did he appear to be on medications? Did he remember who his family members were and what he owned? Did he know he was signing a Will?” Additionally, the lawyer may go on to file formal objections to the probate of the Will and begin subpoenaing the testimony of other persons who knew the decedent or who may be at the root of the problem. Sometimes this clarifies that there is no problem, sometimes it reveals real misdeeds.

On the other hand, you may be the named Executor in the Will and you are trying to get the Will probated (accepted by the court as valid) but someone is fighting it. In such a situation, your lawyer Will help you respond to the questions of the objectant to the Will and his lawyer while trying to prove that their concerns are mistaken or unfounded. Unfortunately, Will contests are sometimes filed by people who are simply upset that they didn’t “get anything” under the Will. It bears repeating therefore, that only spouses are entitled to receive a certain amount from someone else’s Will (called the spouse’s “elective share”) and that children, parents and everyone else can legitimately be cut out entirely. If there was no Will, however, New York law will dictate who gets property. Many people are surprised to learn, for example, that if a husband or wife dies without a Will and with a spouse and children, New York law states that the spouse will get the first $50,000 plus one-half of what remains but that the children will share the other half, even if they are infants. If you want to cut one of your children out of your Will, therefore, consult an attorney, because that child will have a real incentive to contest your Will: if he can get it rejected for probated, he will get part of the children’s half.

Planning for Incapacity. Our life expectancies are increasing and advances in medical technology can keep us alive longer. Unfortunately, this combination can lead to long periods of partial or total incapacity. Many clients are concerned about their health and the effect that their current or future illness may have on the control and uses of their assets. In this context, an attorney may prepare Revocable Living Trusts (in which the client names a trustee to manage the client’s affairs for the period of the client’s incapacity and in which the client lays down the rules for how the property may and may not be used) and Durable Powers of Attorney (a simpler document in which the client may simply give a very trusted person, such as a spouse, the power to make binding financial decisions for the client). There are several other arrangements, with differing benefits, that can address a client’s concerns about managing their property during illness.

Clients may also wish to prepare documents such as a Health Care Proxy (in which they name someone to make routine health care decisions for them only in the event they are not in a position to make those decisions themselves) and Living Will (in which they write to their medical care providers instructing them as to what end-of-life medical treatments they wish to receive or to decline, should they be unable to express those wishes when the time arises).

Guardianship Proceedings and Alternatives Thereto. Sometimes a loved one has assets that he or she cannot adequately manage without assistance (because of advanced age, or because of an accident). The incapacity may be minor or great, and may be temporary, permanent or degenerative. There are various legal arrangements that can assist such a person. It may be as simple as getting a trusted son or daughter to manage a checking account, or establishing in such a trusted relative a power to make limited financial decisions. In some cases, the functional limitations imposed by the affected person’s incapacity may force relatives to consider having a guardian appointed (usually a family member) to protect the incapacitated relative from the unscrupulous and to arrange for his or her financial and personal care, even so far as to arrange Medicaid payment for a nursing home and the planning that sometimes needs to be done to make that possible.

In all such situations, good legal advice is critical to choosing the legal intervention that is least disruptive to the affected person, and to respecting the areas in which such person does have capacity to order his or her own affairs. Such situations also demand that the attorney consulted show a genuine concern for the family involved, because otherwise family quarrels can be created (as frequently happens, for example, where joint accounts with right of survivorship are involved).

Estate and Trust Litigation. Sometimes people feel they are not being treated fairly by the trustee of a trust or the executor of an estate. Sometimes they believe that a trust or loved one’s estate is being mishandled. And sometimes they are simply unsure about their rights and legal options (or their obligations if they are an executor or trustee, etc.) and they need confidential advice. Mr. Kearse can provide that advice, and can help negotiate solutions before they become litigation. He can also provide representation in defending against such lawsuits or in prosecuting them, should it come to that. A note to the cautious: the most common source of these disputes is a confusing Will or trust agreement, or, frequently, an estate plan that was never updated when circumstances changed. It is therefore a good idea to review your estate plan when your family changes (births and deaths), your assets change (your wealth increases or decreases, you come into an inheritance, your retirement looms) or the law changes (note that there was a major revision to the estate tax law in 2001).

Asset Protection Planning. Increasingly, people who have worked hard to build their assets live in fear that an unexpected lawsuit, business failure or other event could undo a lifetime of work. Proper asset protection limits one’s exposure to such events. It is as legitimate as doing business through a corporation (which, after all, is supposed to limit an investor’s losses to the amount invested). What doesn’t it do? It does not reduce one’s income taxes in any way. It does not involve techniques that depend for their success on secrecy or hiding assets. And it does not work to thwart existing creditors or plaintiffs. However, whether through the use of “on-shore” techniques (such as limited partnerships, discussed below) or off-shore techniques (such as trusts created in countries that do not have automatic recognition of U.S. judgments) asset protection planning is a legal means of safeguarding your assets from unforeseen, financially catastrophic litigation.

At its most basic, asset protection planning might look like this: We review your assets and I might notice that you both own a home and some rental real estate. What if a tenant slips on the stairs? He could sue you and seek not just the value of the rental property in the lawsuit, but the value of your home and bank accounts and car and other property, even though those other assets have nothing to do with how the tenant got hurt. For this reason, one recommendation might simply be that your rental real estate be isolated from your other assets by being owned in a separate corporation, LLC, or partnership. That way, liability for what happened at that rental property can probably be limited to, at worst, loss of the property itself. Asset protection planning is frequently this simple and logical.

A few words of caution and some tips: There are many companies offering asset protection advice of very low quality. Also, please be aware that courts frequently look right through asset protection structures where the structures were adopted late in a lawsuit or collection problem. This is especially true where the court perceives that the debtor’s or defendant’s [i.e., your] sole intention was to defeat a legitimate creditor or plaintiff. Whether you use the services of this law firm or another, I would respectfully suggest that you do asset protection planning (1) with an attorney (because your conversations with your attorney are by law confidential and attorney-client privileged) who has skills in addition to asset protection planning, not with a company devoted exclusively to asset protection, (2) well in advance of a problem, and (3) as an integrated part of your normal estate planning or business planning, implemented over time. “Asset protection” is a lawful, moral and accepted part of routine business and estate planning.

The New Estate Tax Rules for 2010 and Beyond

2010 looks like it may be a year of estate and gift tax chaos. Under a federal tax reform plan enacted in 2001, there was a gradual refining and reducing of the estate and gift tax system from 2001 to 2009, then a supposed total repeal for 2010 (it’s not as good as it sounds), then beginning Jan. 1, 2011 a reversion to the system that was in effect in 2001 before the tax reform (i.e., estate taxes come back at you with a vengeance). Few people thought the 2010 repeal would actually take place, and few people expect it to last or be extended. Yet here we are, it’s 2010, and for these 365 days we have a very odd “system” to deal with --- a system that could itself be repealed and replaced with the old system or a new system at any time because the present law is costing the federal Treasury a great deal of lost revenue at a time of large deficits. So, what is the current state of the estate and gift tax system for 2010 and beyond? It works like this…

During 2010:

First of all, only the federal system is changing; New York State’s system is not changing. New York still has an estate tax in 2010. Under New York law, you are allowed to die with $1,000,000 tax free. Everything over $1,000,000 that you own on your date of death will be taxed at a rate of between 4% and 16% (the more you own, the higher the tax rate). Moreover, New York State has not had a gift tax in many years, and that will continue to be true in 2010. So as far as New York State is concerned, the logic for your estate planning is simple and unchanged --- if you have more than $1,000,000 it’s bbetter to give away money while you are alive rather than giving it away at your death (by Will, for example).

The federal estate tax, however, is repealed for the 365 days of 2010. When politicians say it is repealed they often forget to mention they replaced it with the capital gains tax system. The estate tax rate was 45% but the capital gains tax rate is just 15%. The estate tax was calculated at your time of death and was payable by your estate 9 months after your death; the capital gains tax is not payable until your heirs sell your assets, but when they do sell they will need to know what your tax basis had been (good luck determining that). Your estate’s tax return can allocate a “step-up” in basis (such that your heirs don’t need to know what your basis was) for $1.3 million of your property, and for an additional $3 million of property if it passes to a spouse. Meanwhile the gift tax is still in force; you can only give away a total of $1,000,000 during your lifetime to persons other than your spouse, and if you exceed that amount your gifts will be taxed at a rate of 35% (notice that’s lower than the old 45% rate, however).

After 2010:

New York State stays the same as above, and as it has been for years.

But the federal estate and gift tax system reverts to what it was in 2001 before the whole tax reform plan was enacted. “That’s bizarre,” you may observe. True, but it meant the politicians could conceal how much a permanent repeal of the estate and gift tax system would actually cost. The 2001 law only gave us one full year of repeal (2010), and thus politicians could say in 2001 “over the next ten years estate tax repeal only costs $X so let’s vote for it.” It was an accounting shell game, and the consequences are upon us.

What should you do?

1. Review your existing estate plan with your attorney!

2. Think about whether to make gifts this year. Talk it through with your attorney and/or your accountant.

3. Try to keep your estate plan flexible because although we don’t know what changes are coming at us, we know they are coming.

Common Estate Planning Techniques

If you think the estate tax will be repealed forever soon, the suggestions that follow do not make sense. If you are going to die in 2010, some but not all of the suggestions that follow would not make sense. But if you think that some form of the estate tax is likely to continue to exist in the year you die, say, after 2010, then many of these techniques, particularly the gifting and charitable techniques still make a lot of sense. If you choose to read on, however, please bear in mind that these techniques were devised in the estate tax system that prevailed before 2010 and that under current law will prevail after 2010. For the year 2010 itself, you absolutely must get competent legal advice before considering any of the techniques that follow. With that said, one might consider the following techniques.

In addition to having an up-to-date Will that ensures that your property will pass to favored individuals, and that names a guardian for your minor children, you may be concerned about whether your assets will be consumed by the estate tax. If the combined assets (including retirement accounts and the face value of insurance policies) of you and/or your spouse may exceed $1,000,000 by the time of your death, you are right to be concerned. Here are some common techniques for reducing the tax that may be imposed upon your estate (please see the important legal disclaimer at the end of this segment):

1. A Credit Shelter Trust In Your Will: As of January 1, 2002, every U.S. citizen or resident alien was permitted to own up to $1,000,000 at his or her death, without imposition of any NY or federal estate tax. This is called the “applicable exemption amount” or the “unified credit”. As of January 1, 2004, however, it increased for federal purposes (not for NY purposes) to $1,500,000; on January 1, 2006 it increased to $2,000,000; and on January 1, 2009 it increased to $3,500,000. Assuming no further changes in the law, all these changes will expire along with the entirety of the estate tax on January 1, 2010, and then come roaring back at just $1,000,000 on January 1, 2011. Other than for the 365 days in 2010 when the estate tax may be repealed, the estate tax is imposed at rates between 39% and 45% on every dollar above that tax exempt amount. If all the changes are confusing to you, they should be. That is why you really must consult with an experienced estate planning attorney if the combined assets of you and your spouse (including the payout value of life insurance) exceed even $1,000,000. If you would like a short primer on the problem consider the following: If you simply leave all your property to your spouse, at your spouse’s death she will have the property of two people, but a unified credit against estate taxes of only one person. This will likely result in a needless additional estate tax. To avoid this problem, you need to leave the amount of your unified credit to someone other than your spouse, such as your children. Most people do not want to do that since, in smaller estates, that may make their children wealthier than their surviving spouse, or may simply upset the normal family dynamic. The solution? Consider leaving the amount of your unified credit in trust (called a ”Credit Shelter Trust” or sometimes called a “Bypass Trust”) for your spouse (and possibly your children as well) with instructions to favor your spouse and to give him or her easy access to the trust property as needed or requested. That way, as of 2009, between you and your spouse, you can shelter $7,000,0000 (2 x $3,500,000 per spouse) and your surviving spouse can still have the security of ready access to the funds. A good estate planning attorney will also suggest ways to make this arrangement flexible enough to deal with the next few years of radical uncertainty in the estate tax system.

2. $13,000 Annual Gift Tax Exclusion: The Internal Revenue Code allows gifts of this amount to be made without the imposition of estate or gift taxes. You can make gifts of $13,000 per year ($26,000 per year if you are married) per recipient. For example: if you are single and have three children, you can give gifts to those children of up to $39,000 per year without negative tax consequences; if all three children are married you can give them $78,000 ($13,000 to each child and $13,000 to each child’s spouse); and if both you and your three children are all married you could give them a total of $156,000 per year ($26,000 to each child and $26,000 to each child’s spouse). You don’t have to stop with your children either, you can make these gifts to your grandchildren, nieces, uncles, even people who are not related to you. Over time, these gifts add up and can reduce your estate --- and your estate’s tax bite --- substantially. These gifts can also be used to fund trusts for persons to whom you might not wish to give cash outright. (FYI: the people who receive these gifts are not required to report them as income for income tax purposes.) (Note: This $13,000 annual gift tax exclusion amount is adjusted each year for inflation, so it occasionally increases, always in units of $1,000.)

3. Children's or Grandchildren's Irrevocable Trust: These are trusts used by parents and grandparents to accumulate assets for a child's or grandchild's education or health, usually. These can be created for individual children/grandchildren or can be created for a class of all your children/grandchildren. These trusts are frequently funded with $13,000 annual gifts, discussed in point two above.

4. Direct Payments of Medical and Educational Expenses: In addition to the $13,000 Annual Gift Tax Exclusion gifts discussed above, you can pay unlimited amounts for someone else’s medical costs or educational expenses, as long as you pay those costs directly to the institution that provided the service. For example, you could pay your grandson’s $45,000 annual tuition to State University and pay his $65,000 worth of uninsured medical bills from an accident this year, and still make the additional $13,000 annual gift to him during the holidays (or to a trust or Uniform Transfers to Minor’s Account, etc.) Just be sure that you don’t give the tuition money or medical expense money to your grandson or his parents to put toward those expenses; instead get the actual bills and make your checks payable directly to the State University and the hospital.

5. Irrevocable Life Insurance Trust: Most people do not realize that proceeds of a life insurance policy are subject to estate tax. Thus, if you already had a taxable estate, and upon death your life insurance policy were to pay $2 million to your children, they would really only get around $1 million thereof because the rest would go to pay estate taxes on the $2 million policy. The solution is an Irrevcable Life Insurance Trust (sometimes called an “ILIT”). You would create a trust agreement and fund the trust with your insurance policy; the trust will say to whom to pay the trust’s property (likely to be the life insurance proceeds) upon your death. Once created, you give up control of the trust and of the policy to the trustees that you have chosen (a close friend of yours and your spouse, perhaps). You have thereby effectively removed that insurance policy from your taxable estate. This way, when you die, the value of your life insurance is not hit with estate tax --- since a trust, not you, owns the policy, the policy pay-out is fully sheltered from the 39% to 45% federal estate tax. Your life insurance beneificiaries thus get the full $2 million from the $2 million life insurance policy. This is a reasonably simply and extremely effective technique.

6. Family Limited Partnership: This is a limited partnership in which only family members hold interests. Usually a parent will create the partnership to hold a family business. The parent will own all of the general partnership shares (thereby ensuring that he or she retains control of the business) but gives away much of the limited partnership interests to his or her children or grandchildren as gifts. On the parent’s death, the shares he or she still owns may enjoy a substantially reduced estate tax valuation.

Family Limited Partnerships can achieve many goals, including for estate planning and asset protection. They: 1) provide asset protection for partnership property from the creditors of a partner (such as someone who sues the family business and obtains a judgment against it), 2) provide protection for limited partners from their own future creditors, 3) enable gifts to be made to children, perhaps at discounted gift tax values, while maintaining management control of the family business in an older generation, and 4) reduce the estate tax value of property when the older generation dies. For these reasons FLPs, as they are sometimes called, have been steadily increasing in popularity for the last decade.

7. Charitable Remainder Trust: This is a trust whereby a donor will transfer property to a charitable trust and retain an income stream from the property transferred. The donor gets to live off the property for the duration of his life, and at his death the charity receives the remaining property. The donor receives a charitable contribution income tax deduction upon creating the trust, and avoids a capital gains tax on the transferred property. This is an excellent option for people who are charitably inclined, and who own highly appreciated assets that they will need to rely upon.

Example: Mr. Morris is 75. Most of his net worth is in General Electric stock that he bought thirty years ago. He needs to live off the income and he is worried that if he doesn’t sell the stock and diversify his holdings, a market decline may leave him vulnerable. On the other hand, he also worries that if he does sell the stock so that he can buy a mix of varied stocks and bonds, he will immediately lose 15%-20% of his holdings to the capital gains tax. A solution: Mr. Morris can give the General Electric stock to a charitable trust. The charitable trust can sell the General Electric stock and, because the trust is a charitable entity, will not owe capital gains taxes on the sale. The charitable trust will then invest the entire proceeds of the sale in a balanced mix of stocks and bonds, paying 5% of the trust fund to Mr. Smith annually. Mr. Smith gets to live off 100% of his stocks, not the 80%-85% thereof that would have remained if he had diversified it all himself without creating a charitable trust. At Mr. Smith’s death the trust will terminate and the charity will receive whatever property is left.

8. Fractional Interest Gift: Making a gift of only a part of one’s interest in a piece of property (usually real estate) allows the donor to obtain fractional interest discounts for estate and gift tax purposes. For example, if at your death you owned 67% of a $1 million piece of real estate, the IRS recognizes that it is worth much less than $670,000 because who would want to buy your two-thirds of a piece of real estate and then be stuck dealing with the other one-third owner? Thus, your estate will not owe estate taxes on $670,000, but on some lesser amount. Another form of a fractional interest gift is a House Trust (see number 10 below), sometime called a QPRT or Qualified Personal Residence Trust. This technique may permit one to effectively transfer one’s home to children at a significantly reduced estate/gift tax value, while retaining to oneself the right to continue to live in the home for a fixed number of years. The Tax Code specifically approves of this QPRT technique.

9. Private Foundation: This is a charitable entity often used by higher net-worth families. Private foundations can be used to train younger generations in family traditions of responsible charity, and can provide those family members with a reasonable salary (if that is desirable), while entitling the parents’ transfers to the private foundation to qualify for substantial estate and income tax deductions.

10. House Trust: The House Trust (or as the IRS prefers to call it, the “Qualified Personal Residence Trust” or “QPRT”) is simply the technique of transferring the ownership of your house from your own name into the name of a trust. You retain the right to live in the home for a specified period of years (the trust “term”). At the end of that specified period, the children (or other beneficiaries designated in the trust agreement) become the owners of the residence. Thereafter, the residence will no longer be a part of your taxable estate.

The House Trust technique is expressly permitted by the IRS and the tax code, and it has a big tax advantage. When you put your home in the trust, you have made a gift to your children. However, the gift is not the full value of the house on the date of the gift. Instead, the gift is only the value of the children’s right to take possession of the residence at the end of the specified period of years and only if you outlive that period --- thus your children’s interest is worth a lot less than the right to own the house and sell it tomorrow, and the tax law recognizes that fact. The longer a period you choose before you will vacate the house and let your children have it (or start paying them rent), the lower the gift tax value of the transfer to your children. The decision you will have to make is “What is the longest term of this trust I can choose where I am still reasonably sure I will outlive my right to continue living in the house?” For example, a $1,000,000 home can be gifted to a house trust, removing $1,000,000 from the donor’s taxable estate, but the taxable gift may be as little as 10 or 20 percent of the value of the residence if you are 60 years old and chose a trust term of 20 years. By keeping the gift tax value of the QPRT transfer below your $1,000,000 exemption from federal gift tax, you can avoid laying out cash to pay the federal gift tax on the gift --- it will just use up a part of your exemption. Additionally, while the value of the house may increase over the years, you will have fixed its value for estate and gift tax purposes as of the date you created the trust; you have thus effectively “frozen” the value of the estate for purposes of your estate, and transferred the future appreciation to your children free of estate or gift taxes. By the way, if you want to continue to live in your house even after the trust term, you will have to work out a rental arrangement with your children --- but that’s another good way to transfer assets to them without owing gift tax (especially if their income tax rates are lower than yours, as is often the case).

Again, all of the above techniques make the most sense in a system where there is an estate tax. For 2010, there is a New York estate tax but the much more onerous federal estate tax is repealed. Consult your attorney and consider whether these techniques are appropriate for you.

IMPORTANT LEGAL DISCLAIMER: Nothing on this website constitutes legal advice or an offer of legal advice. Unless you have signed an Engagement Letter with Brendan P. Kearse he has undertaken no responsibility for your legal problems or planning, nor does he owe any duty to you. All techniques and ideas discussed on this website are general in nature and are incomplete descriptions of the law and should not be relied upon by you. Consult your attorney.

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