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The Ins and Outs of Small Estate Proceedings – A Simplified Process Under New York Law

When someone dies in New York State and has property titled in their name, there generally has to be a probate proceeding or intestate administration proceeding to transfer their property to the rightful beneficiaries.

Probate proceedings occur if the decedent had a Last Will and Testament (“a Will”).  Intestate administration proceedings occur if the decedent died without a Will.  There is an exception to this general rule, however, if the decedent had assets that are comprised of only personal property and the total value of those assets is less than $50,000.

Decedents are considered as having only personal property if they owned no real property (i.e. real estate) at the time of their death.  Personal property does not simply mean tangible personal property, such as cars, boats, furniture, or jewelry, but also includes assets like bank deposits, stocks, and bonds.

New York law refers to this process as “Settlement of Small Estates Without Court Administration”, which is a bit of a misnomer because the local Surrogates Court in the county where the decedent died is involved with the process.  Lawyers often refer to this process as a “Small Estate Proceeding”, and we will use that term here.

How is a Small Estate Proceeding started?

A Small Estate Proceeding is started by the proposed estate Administrator filing an Affidavit, which describes the assets of the decedent and lists who the beneficiaries are.  If the decedent had a Will, the Will is filed with the Affidavit but is not subject to a full probate proceeding.  

Do the Will beneficiaries still receive their bequests?

Yes.  Although the Small Estate Proceeding is not a formal Will probate, the Will beneficiaries still receive what the Will lists as their bequests (assuming there are assets to fund them).  If the decedent died without a Will, then the beneficiaries will be the decedent’s closest living relatives, as set forth in New York Estates, Powers and Trusts Law section 4-1.1.

Who can act as the Administrator of the Small Estate?

If there was a Will, the named executor has the first right to act as the Administrator.  If there was no Will, then the decedent’s spouse, if any, has the first right to act as Administrator.  If the decedent died without a spouse, then there is a priority amongst the decedent’s closest living blood relatives.

What other forms need to be filed with the Affidavit?

In addition to the Affidavit, the following forms generally have to be filed with the court:  the Will (if any), the death certificate, a copy of the paid funeral bill, and a family tree affidavit.  In addition, at the end of the process, the Administrator needs to file a final report, known as the “Report and Account in Settlement of Estate”.  

What is in the final report?

In the final report, the Administrator provides the court with details regarding which assets were managed and liquidated in the Small Estate.  In addition, they provide proof, via canceled checks or receipts, to confirm that the appropriate beneficiaries received their inheritances.

Do I need a lawyer to do a Small Estate Proceeding?

No, but having a lawyer available to ask questions of would certainly be helpful.  The New York State Office of Court Administration provides an online DIY tool for non-lawyers to handle Small Estate Proceedings.  The link for the DIY tool is:  nycourts.gov/courthelp//diy/smallestate.shtml.

What happens if the estate ends up with more than $50,000?

If you start a Small Estate Proceeding with the belief that the estate assets are comprised of only personal property with a value of less than $50,000, you may find in time that the assets in fact are larger in value.  You may also find that the decedent owned real property in New York or elsewhere.  In those cases, you need to file a probate petition (if there is a Will) or an intestate administration proceeding (if there is no Will).  The court will then essentially modify the proceeding to a probate proceeding or intestate administration proceeding.  In order to do this successfully, it would be advisable to retain an attorney.

Does the Administrator get a commission?

No.  In contrast to a probate proceeding or an intestate administration proceeding, the Administrator of a Small Estate does not get a commission for their services.

It can be challenging to determine what type of proceeding should be filed in Surrogates Court when someone passes away.  As explained above, if the decedent’s estate is valued at $50,000 or less and has no real property, then a Small Estate Proceeding is appropriate.  If the estate value is larger or real property is involved, then a probate proceeding or intestate administration proceeding will be required.  In addition, it is important to remember that some assets flow to a surviving spouse or certain children under New York Estates, Powers and Trusts Law section 5-3.1, as family exempt property.  An example of such property is a car less than $25,000 in value which can go directly to a surviving spouse, without even a Small Estate Proceeding.

In addition to the above, assets can flow from a decedent to another person pursuant to joint ownership or naming the person as a beneficiary, as in a life insurance policy.  It can be confusing to know how to proceed, when a loved one dies.  In order to handle the assets of a decedent properly, it is advisable to seek the assistance of an attorney experienced in estate administration matters.

Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court St, Saratoga Springs. Over his 26 years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at 518-584-5205, mdorsey@oalaw.com and www.oalaw.com. 

Take Advantage of Your Employer-Provided Benefits

We all know that we need to plan for our financial future. Sometimes, though, the thought of even getting started can be overwhelming, and cause people to put it off. When it comes to planning, time is the best friend of your money, so it’s important that you start planning as soon as possible. Let’s look at some basic tasks you should be tackling to give yourself a more solid financial foundation.

Investing in your employer-provided retirement plan is one of the simplest steps you can take. Since your contributions come directly out of your paycheck, many people find it easier to save because they don’t actually have to write a check, and the savings feels more automatic. 

If your company’s plan offers matching contributions, you’ll want to be sure to contribute at least enough to take advantage of the full match. The company match is free money and is often as much as an extra three or four percent of your earnings!

If you’re confused about which investment options to select within your plan, speak with your financial advisor who can help you make sense of your choices. If you don’t have an advisor, many plan providers will offer one-on-one consultations over the phone, or at your worksite. You may also want to consider the so-called “target date funds” that many plans now offer. These funds are intended to become less aggressive as your get closer to retirement, and can be a good choice for people who want a simple solution.

Each time you get a pay increase, consider increasing the percentage of your salary that goes into your retirement plan. Doing this before you’ve allocated these new funds to your budget, can help you put more away without noticing it. 

While saving for retirement is an obvious need, protecting what you’ve got is often overlooked. When we feel healthy, the thought of a long-term disability or premature death seems like remote possibility. Insurance certainly isn’t sexy, but it’s a necessary part of your financial plan. 

Your employer may offer long-term disability and life insurance coverage at rates that may be less expensive than a policy you could purchase privately. Review these coverage options and select one that protects your income stream from the possibility that your become unable to work. Likewise, explore life insurance options that protect your family in the event of your premature death. 

If your employer doesn’t offer adequate insurance coverage, then work with an independent insurance agent who can help you explore options that fit you needs and your budget.

Employers continue to recognize the importance of workplace benefits in the lives of their employees, and often provide important options that you may not even realize are available. Take the time to discuss with your human resources team to find out what you may be missing. These options can go a long way toward helping you create a firm financial foundation.

Stephen Kyne is a Partner at Sterling Manor Financial, LLC in Saratoga Springs. Securities offered through Cadaret, Grant & Co., Inc. Member FINRA/SIPC. Advisory services offered through Sterling Manor Financial, LLC, or Cadaret Grant & Co., Inc., SEC registered investment advisors. Sterling Manor Financial and Cadaret Grant are separate entities

Community Unites Around A Brand-New Mom with Breast Cancer

A moving GoFundMe campaign raises $10,000+ in two weeks.

Alyssa Lewis and family. Photo provided.

Alyssa Lewis, 29, of Mechanicville, was diagnosed with breast cancer while pregnant. 

It has been a harrowing ordeal for Alyssa and her husband, Dustin, compounded by the fact that cancer treatments are expensive. They have been unsure how to make it through. Now, the community has stepped up to help. 

In just two weeks, they have raised $10,333 through a heartfelt GoFundMe campaign, surpassing their $10,000 goal. 

When the Unthinkable Happens

During her first trimester, Alyssa experienced slight pain and found a lump in her breast. Convinced it was harmless, she tried not to worry. 

Except for awful nausea, Alyssa’s pregnancy went relatively smoothly, at first. As her breasts swelled, pain increased. She convinced herself these were normal changes until, at 37 weeks pregnant, she finally mentioned the lump to her obstetrician. The biopsy confirmed it was cancerous.

“I’m young, generally healthy, with no breast cancer history… how could this have happened?” Alyssa wondered. 

To begin the cancer treatments as soon as possible, Alyssa was scheduled for an induction the day before her due date. There were complications. After 10 hours of labor, and with the baby’s heart-rate dropping, a C-Section was performed. On May 4th, a healthy baby girl, Harlow, 6lbs 5 oz, 19-inches, was born. 

Several weeks later, imaging detected Alyssa also has a cancerous lymph node. The hormones surging through Alyssa’s body during pregnancy fed the aggressive, fast-growing Stage 2 tumor.  

“The biggest thing I’m afraid of is, unfortunately, I could be losing my life, my daughter could be losing her mother, and my husband could be losing his wife,” said Alyssa.

Help for Today, Hope for Tomorrow

Today, Alyssa’s chemotherapy treatments have begun. Surgery will follow and with it, radiation, and long-term hormone therapy medications. 

Unsure of how much the out-of-pocket costs for all this will amount to, Alyssa and Dustin know they are substantial. They are struggling to keep up financially. Also, Alyssa does not have life insurance.

In addition to the typical expenses of all new parents, Harlow must be fed exclusively with formula (costs only partially covered by WIC assistance). The couple, married since 2018, also care for three cats; Mittens, Scarlet, and Xena. Medical copays and the cost of transportation for treatments are adding up. 

On June 13, they launched a GoFundMe campaign. In less than three days, they reached 50% of their $10,000 goal. Within the week, they received nearly $7,500 in donations. 

“We live a private life, have a small circle of friends, and aren’t on social media. That so many people would help – words can’t express what I’m feeling,” said Alyssa, adding, “It’s definitely given me a new sense of strength I didn’t have before. In the beginning, it was hard to feel that way.” 

Immeasurably grateful, this support has pushed Alyssa into a place of empowerment, allowing her the grace to advocate for young breast cancer patients like herself. 

“Seeing the outpouring of support from friends, family, everyone (even strangers!) really has pushed me forward. I have a new sense of wanting to make a difference for others in my condition.”

Alyssa has joined a cancer support group, is participating in a clinical study to test the current standard of care (saving future patients from the awful side-effects of ineffective treatments) and is advocating for more rigorous cancer prevention measures for pregnant women. 

To read more of Alyssa Lewis’ story and contribute, visit gofund.me/77515d0c. 

If you would prefer to send a gift, visit amazon.com/registries/gl/guest-view/UK5AIRU4Z1PA

Power Of Attorney Questions And Answers – Key Points Regarding This Important Document

As I have written on these pages before, a power of attorney is arguably the most important document in your estate plan – other than your will or trust.  I frequently have clients come to me with issues related to powers of attorney, so I thought it would be useful to provide a series of questions and answers that cover the key points regarding this important document.

CAN I DO A POWER OF ATTORNEY MYSELF USING A FORM I CAN GET ON-LINE?

Yes, but it is inadvisable to do so for two reasons.  First, the New York statutory power of attorney form has changed three times over the last fifteen years.  If you use a form that is not the most current form, then it’s possible that the power of attorney will be invalid.  Unfortunately, this problem may not be apparent until many years later when your agent attempts to use the form.  If you cannot sign a new form at that time, then you would be left without a legally proper power of attorney.

The second reason is that the current power of attorney form is a lengthy and somewhat complicated document.  It is eight pages long and requires the principal to initial in various places and sign before two witnesses and a Notary Public.  In addition, the agents also have to sign the document before a Notary Public.  As a result, there are multiple chances to not initial or sign properly – all of which could cause the power of attorney to be either invalid, or at a minimum, not consistent with the best interests of the principal.

WHO IS THE “PRINCIPAL” AND WHO IS THE “AGENT”?

The principal is the person who is naming people to act on his or her behalf regarding financial matters.  The agent is the person designated to act on behalf of the principal.  

CAN I HAVE MORE THAN ONE AGENT?

Yes, and it is preferable that you do.  People generally pick one agent and then have a successor agent named as a back-up.  In addition, you can name more than one agent to act at one time.  In that case, you are naming “co-agents”.  You can also choose whether those co-agents must act together or have the ability to act independently.

ARE THERE ANY OTHER PEOPLE I NEED TO CHOOSE TO ACT?

You can choose a “monitor” for your agent.  The monitor does not act as an agent themselves but has the ability to monitor the activities of the agent.  For example, if they have reason to believe that the agent is acting inappropriately, they can request financial information, i.e. bank statements, from the agent to review.  If their review leads them to believe that the agent has acted in violation of their fiduciary duty, then the monitor can take legal action to potentially revoke the agent’s authority.

WHO SHOULD I CHOOSE AS MY AGENT?

You should choose someone that you trust implicitly to handle your financial affairs for you.  You should remember that, unless you direct otherwise in writing, the power of attorney will continue to be effective if you lose your mental capacity.  As a result, you need to choose someone who can be trusted at a time when you no longer have the ability to evaluate the propriety of their actions.

CAN I REVOKE MY POWER OF ATTORNEY?

Yes.  You can revoke your power of attorney at any time.  It is advisable that after revoking your power of attorney that you deliver a copy of the revocation to your agent, so you can ensure that they know they can no longer act on your behalf.  In addition, if your power of attorney was recorded at the County Clerk’s office, you should record the revocation there as well.

DO I NEED TO RECORD MY POWER OF ATTORNEY?

Generally, no.  The only time you need to record the power of attorney is if it was utilized in connection with the signing of a deed.  I generally do not recommend the recording of a power of attorney otherwise, because once you record it the document becomes a public record – available for anyone to see.

CAN A POWER OF ATTORNEY BE UTILIZED TO MAKE GIFTS OF MY ASSETS?

Yes – depending on what you authorize in the power of attorney document.  The statutory form includes a list of powers that runs from item “A” to “P”.  Item “I”, if you select it, allows your agent to make gifts you customarily have made to people or entities up to $5,000 per beneficiary each year.

CAN MY AGENT MAKE GIFTS IN EXCESS OF $5,000 PER BENEFICIARY EACH YEAR?

Yes – if you separately authorize the agent to do so.  Section “g” of the power of attorney form allows you to indicate that you authorize the agent to engage in additional gifting.  The parameters of that gifting are then described in writing in section “h” of the document titled “Modifications”.

IS SUCH ENHANCED GIFTING AUTHORITY APPROPRIATE?

It depends on your overall estate planning goals, whether such enhanced gifting is appropriate.  For example, some people want the authority in place to allow asset transfers that may allow them to qualify for Medicaid coverage to pay for nursing home care.  Other people may not be comfortable in granting such authority and choose to opt out of such planning.

As you can see from the above questions and answers, there is a certain degree of complexity in the planning, drafting, and execution of a power of attorney.  To ensure your power of attorney is properly done, it would be wise to consult with an estate planning professional. 

Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty-six years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, mdorsey@oalaw.com and www.oalaw.com.

Happy Father’s Day!

Did you know there’s an organization with a .gov web site called “National Responsible Fatherhood Clearinghouse”? 

I sometimes get the feeling from my newsfeed and social media that terms like “mother” and “father” are increasingly considered by some to be outmoded and insensitive — characteristics that the U.S. government doesn’t want to be associated with — and yet, this organization has a .gov address! A .gov URL is considered to signify “trustworthy” and “legitimate” and “unbiased” for those writing academic papers (high school and college students are taught that when using the internet for their research papers, .gov web sites are “good” sources). Indeed, the web site for the National Responsible Fatherhood Clearinghouse web site (fatherhood.gov) says that it’s “an official U.S. Government Web site managed by the U.S. Department of Health & Human Services” and that the organization itself is “an Office of Family Assistance (OFA) funded national resource for fathers, practitioners, programs/Federal grantees, states, and the public at-large who are serving or interested in supporting strong fathers and families.”

I’m definitely interested in supporting strong fathers and families! I’m sure it’s no surprise to you that I spend a great amount of time in mothers-only or mothers-predominate arenas (literature, online sites, my daily goings-on with my kids) and will defend with my dying breath the need for mothers, but I want you to know that I feel the same way about fathers! 

One of the things I loved reading on fatherhood.gov is that research shows “fathers tend to be more involved in play than mothers.” I fully admit this is true in our house! Additionally, “they tend to play differently than mothers do — engaging in more physical and challenging games and encouraging independence and risk-taking.” Again, true in our house! It reminds me of a funny story from when my biggest boys were tiny: we were visiting one of my dear friends from college, and her mother was there, too, whom I love. My husband was playing outside with our boys and my friend’s mom got my attention in a conspiratorial sort of way and said with a straight face while chopping vegetables in the kitchen, being careful not to look at me while she was saying it, something like, “I just want to let you know your husband is tossing your son in the air.” Or something like that! I can’t remember the exact details now, fifteen years later, but it made me laugh so hard at the time and it has made me laugh all these years — I loved every detail of that interaction, how she was so serious about letting me know that my husband was playing far too roughly with the boys, and how she even made it seem like she was risking it all to pass along this vital information. It is true, though, that my boys and their dad love doing things that I would never feel comfortable doing.

Another thing I loved reading on the site is that “[p]ositive father involvement has been associated again and again with better social, emotional, and cognitive outcomes for children at all ages. … it is correlated with higher self-esteem, emotional security, academic achievement, school readiness, and math and verbal skills.” Read that again, Dads: it is important and necessary for your kids’ well-being for you to be there, and for you to be a good father. “Present” and “good.” 

We all know “present” isn’t always possible for a variety of reasons, and even “good” can be defined in different ways that are “shaped by cultural and demographic factors,” as the web site noted, which is important to remember. Fatherhood.gov offers “positive engagement” (“direct interaction with children, including caregiving and activities”), “accessibility” (“availability to children”), and “responsibility” (“participation in decision-making and ensuring that children are cared for”) as three ways in which dads can and should be involved with their children whenever possible.

We all also know that there are many children who are growing up and have grown up without a good and present father, my own husband being one of them. His dad, who was a wonderful man by all accounts, died when my husband was too small to really remember what it was like to have a dad around, and his mom did a bang-up job teaching him how to be a good man and father, so I can see all is not lost when the ideal isn’t met. But that doesn’t mean it’s not important to strive for the ideal! Men: try your hardest, within your circumstances and your abilities, to give your children the best possible chance at a healthy and successful life. I’m beyond grateful that my dad did so for my siblings and me, and that my husband is doing so for our children. 

In an article from 2000 — one that would no longer pass muster in academic writing, unfortunately, because it was published too long ago, but which I thought still offered some good things — Stephen Duncan, Ph.D., a Family & Human Development Specialist associated with Montana State University Extension Service, wrote in an article entitled “The Importance of Fathers” that fathers are not “optional family baggage” and that there “is a clear message out there: Dad, you ought to be a more nurturing and involved father and Mom, you need to let Dad get involved.” I will absolutely toast to all that, and I hope all you good dads have a very happy Father’s Day!

Kate and her husband have seven sons ages 18, 16, 14, 13, 11, 9, and 4. Email her at kmtowne23@gmail.com.

Carpal Tunnel Syndrome

Carpal tunnel syndrome (CTS) is a problem of the median nerve, which runs from the forearm into the hand. CTS occurs when the median nerve gets compressed in the carpal tunnel, a narrow tunnel at the wrist made up of bones and soft tissue. Nerves, tendons, and blood vessels travel through this tunnel, which when compressed may result in pain, weakness and/or numbness in the hand and wrist, radiating into the forearm. CTS is the most common of the entrapment neuropathies—compression or trauma of the body’s nerves in the hands or feet.

CTS typically occurs in adults, with women three times more likely to develop it than men. The dominant hand is usually affected first, and the pain is typically severe. CTS is especially common in assembly-line workers in manufacturing, sewing, finishing, cleaning, meat packing and similar industries.

What Are the Symptoms?

Burning, tingling, itching and/or numbness in the thumb, index and middle fingers are common CTS symptoms. Some people with CTS say that their fingers feel useless and swollen, even though little or no swelling is apparent. Since many people sleep with flexed wrists, the symptoms often first appear while sleeping. As symptoms worsen, people may feel tingling during the day. In addition, weakened grip strength may make it difficult to form a fist or grasp small objects. Some people develop wasting of the muscles at the base of the thumb. Some are unable to distinguish hot from cold by touch.

Why Does CTS Develop?

Some people have smaller carpal tunnels than others, which makes the median nerve compression more likely. In others, CTS can develop because of an injury to the wrist that causes swelling, overactivity of the pituitary gland, hypothyroidism, diabetes, inflammatory arthritis, mechanical problems in the wrist joint, poor work ergonomics, repeated use of vibrating hand tools, and fluid retention during pregnancy or menopause.

How Is It Diagnosed?

CTS should be diagnosed and treated early. A standard physical examination of the hands, arms, shoulders and neck can help determine if your symptoms are related to daily activities or to an underlying disorder. Your doctor of chiropractic can use other specific tests to try to produce the symptoms of carpal tunnel syndrome.

The most common are:

• Phalens Test: Place your knuckles together and point your fingers downward, hold 30-60 seconds.

• Carpal Compression Test: Moderate pressure is applied with both thumbs directly on the carpal tunnel and underlying median nerve at the transverse carpal ligament.

Laboratory tests and x-rays can reveal diabetes, arthritis, fractures and other common causes of wrist and hand pain. Sometimes electrodiagnostic tests, such as nerve conduction testing, are used to help confirm the diagnosis. With these tests, small electrodes placed on your skin measure the speed at which electrical impulses travel across your wrist. CTS will slow the speed of the impulses and will confirm the diagnosis.

What Is the Treatment for CTS?

Initial therapy includes:

• Resting the affected hand and wrist.

• Avoiding activities that may worsen symptoms.

• Immobilizing the wrist in a splint to avoid further damage from twisting or bending.

• Applying cool packs to help reduce swelling from inflammation.

Some medications can help with pain control and inflammation. Studies have shown that vitamin B6 supplements may relieve CTS symptoms.

Chiropractic joint manipulation and mobilization of the wrist and hand, stretching and strengthening exercises, soft-tissue mobilization techniques, and even yoga can be helpful. Scientists are also investigating other therapies, such as acupuncture, that may help prevent and treat this disorder.

Occasionally, patients whose symptoms fail to respond to conservative care may require surgery. The surgeon will release the ligament covering the carpal tunnel. The majority of patients recover completely after treatment, and the recurrence rate is low. Guidance on posture and movement, as instructed by your chiropractor, can also help prevent CTS recurrences.

How Can CTS Be Prevented?

The American Chiropractic Association suggests the following CTS prevention strategies:

• Perform on-the-job conditioning, such as stretching and light exercises every hour.

• Take frequent rest breaks.

• Wear splints to help keep the wrists straight.

• Use fingerless gloves to help keep the hands warm and flexible.

• Use correct posture and wrist position.

• To minimize workplace injuries, jobs can be rotated among workers. Employers can also develop programs in ergonomics, which is the process of adapting workplace conditions and job demands to workers’ physical capabilities.

Please feel free to stop by our office for a complimentary handout of carpel tunnel syndrome stretches and exercises.

Dr. Matt Smith is a chiropractor in Saratoga Springs providing non- surgical treatment of spinal disorders and sports-related injuries. For more information, please visit MySaratogaChiropractor.com or call 518-587-2064.

A Life Insurance Refresher

Life insurance isn’t sexy, but it’s an important component of nearly everyone’s financial plan. When death interrupts life, it provides a blanket of security that allows survivors to, well, survive.

As a Certified Financial Planner®, I find that many people are confused about what kind of life insurance they should have. At its core, insurance falls into two categories: permanent and term.

The type of insurance you have depends on your anticipated need. If you feel your need for insurance will be permanent, meaning you’ll need it whether you die today or at age 95, then permanent insurance should be considered. Most people, however, only need life insurance to cover a specific period of time, making term insurance a preferable option.

Let’s take a closer look:

Term insurance is intended to cover a basic need: to replace the economic loss resulting from a death during a specific period of time. It sounds clinical, but that’s all it is. For example, if I have a child today, I may want to purchase a 25-year term policy to ensure that, if I were to pass away before that child became independent, there would be sufficient assets to provide for my child. Once the child has left home, the need may no longer exist and the insurance term expires. 

With term insurance, you’re only paying for what you need, when you need it. Because of that, the premiums are much lower, relative to many permanent forms of insurance. 

Permanent life insurance is intended to cover a permanent need. The most frequent permanent needs I encounter are: 

1. Estate planning: In order to provide for liquidity at death, or to create a tax-free estate at death, permanent life insurance strategies can be utilized. 

2. Pension replacement: In the event one spouse elected a single-life only pension, a permanent insurance policy can be used to replace the pension in the event of the pensioner’s death. 

In both of these circumstances, a permanent insurance policy is used simply because the insurance need exists for an unknown period of time. It would be unwise to use a term policy in these instances. 

Many people have been sold permanent insurance policies who may not have had a permanent need, on the premise that permanent insurance can build cash value against which tax-free loans can be taken in the future. Truth be told, in my nearly twenty years in private practice, I’ve never encountered a person who funded their retirement using their life insurance cash value. 

This is true for a variety of reasons. 

In order to grow significant cash value, the policy premiums needed are significantly higher than just the cost of insurance (which is all you pay in a term policy). While many people are well-intentioned on the front-end, life happens, and very often people reduce the amount they pay into their policies, which dramatically affects the policy’s performance. 

Another reason these policies often don’t live up to expectations is that life insurance agents may use unrealistic assumptions when illustrating future policy performance. 

The only time I see permanent insurance work as a savings vehicle, is for a client whose cash flow is such that they have maximized contributions to every other retirement savings vehicle, and still have significant money they need to sock away.  So, if you’ve exhausted your ability to contribute to your 401k, 403b, IRAs, and other retirement vehicles, then permanent insurance could be another avenue for saving.

It should be noted that some people start out with a temporary need which evolves into a need that is more permanent. Luckily, many term insurance policies are convertible into a form of permanent insurance for just this reason. 

In the battle between term and permanent, as planners, we overwhelmingly favor term insurance. It is by far the most cost-effective way to solve for a need, while preserving the option to convert to permanent insurance if the need changes. 

Your Certified Financial Planner® will be the best person to help you assess your need by helping you to understand your overall financial circumstances, and can tailor a policy to provide proper coverage. If your advisor is independent, they will also have dozens of carriers to choose from, and can help get you the most competitive rates.

Stephen Kyne, CFP® is a Partner at Sterling Manor Financial, LLC in Saratoga Springs, and Rhinebeck, NY. 

Securities offered through Cadaret, Grant & Co., Inc. Member FINRA/SIPC. Advisory services offered through Sterling Manor Financial, LLC, or Cadaret Grant & Co, SEC registered investment advisors. Sterling Manor Financial and Cadaret, Grant are separate entities.

What is a Trust and Do You Need One? How a Trust Can Be Part of Your Plan

There is a great deal of misinformation and misunderstanding about what a Trust is and how it can potentially be part of your estate plan.  By reviewing the different types of Trusts frequently used in estate planning, we can hopefully provide some useful information and eliminate some of the common misunderstandings.

What is a Revocable Trust?

A Revocable Trust holds assets for you during your lifetime. You can revoke the Trust and take back ownership of the assets at any time that you choose. Revocable Trusts are generally also amendable, which means you can modify their terms however you see fit over time.  Revocable Trusts are sometimes used in the place of Wills in order to avoid the probate process.  In those cases, attorneys generally suggest you still do a “Pour Over Will”, which directs anything in your probate estate to be distributed to your Revocable Trust.  This is done so that if you die with probate assets, despite your efforts to avoid doing so, those assets are distributed pursuant to the terms of your Revocable Trust.  Probate assets are assets owned solely by you and not held jointly with someone else, payable to a named beneficiary, or held in trust.

What is an Irrevocable Trust?

An Irrevocable Trust cannot be revoked by the creator and is often used in asset preservation planning to assist the creator in later qualifying for Medicaid to pay for nursing home care. Anything transferred into a properly drafted Irrevocable Trust more than five years before a Medicaid application is filed will not be counted as an asset of the Medicaid applicant.  Irrevocable Trusts are also generally not amendable, however certain changes may be possible after their creation.  For example, Irrevocable Trusts used for Medicaid planning often include a limited power of appointment, which will allow the Trust creator to change the beneficiaries of the Trust.

What is a Third Party Supplemental Needs Trust?

A Third Party Supplemental Needs Trust can be set up for the benefit of a disabled person by a third party. For example, a father may set one up for his disabled child in his Will, so that money will be available for the child’s care after the father’s death. This type of Trust does not affect the eligibility of the disabled child for governmental benefits, such as SSI or Medicaid. One of the advantages of a Third Party Supplemental Needs Trust is that the remaining principal of the Trust can be left to other family members after the death of the disabled person.  

What is a Special Needs Trust?

A Special Needs Trust is similar to a Third Party Supplemental Needs Trust in that it does not affect the eligibility of a disabled beneficiary for governmental benefits.  A Special Needs Trust, however, is set up with the disabled person’s own funds.  In some cases, the funds may be made up of the proceeds of a personal injury settlement. In addition, funds left in the Trust after the disabled person’s death must be used to pay off any lien Medicaid has for providing medical care during the disabled person’s lifetime.

What is an Irrevocable Life Insurance Trust?

An Irrevocable Life Insurance Trust (ILIT) is often used to assist with the payment of potential estate taxes. When the ILIT is established, the creator gifts money to the Trust to purchase a life insurance policy on his or her life. Over the course of the creator’s life, he or she gifts additional money to the ILIT to pay annual premiums, keeping the annual gifts below the annual exclusion amount for federal gift tax purposes. This allows the value of the insurance policy to grow outside of the taxable estate of the creator. Upon the creator’s death, the death benefit paid under the life insurance policy is not part of the creator’s taxable estate and is therefore available to help pay any estate taxes that are levied on the creator’s estate.

Can I have a Trust and a Will?

Yes.  In fact, it is quite common to have Trusts set up within a Will.  These Trusts are known as Testamentary Trusts.  When the person doing the Will has younger children, a Trust is often set up in the Will to manage the assets for the children until they are older.  In addition, Revocable or Irrevocable Trusts can work in conjunction with a Will, based on the individual needs of the client.

Whether a Trust should be part of your estate plan is a discussion you should have with your attorney. As you can see, Trusts come in a great variety of types and serve many purposes. An experienced professional can help you make the right decisions based on your personal circumstances.

Matthew J Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court St. Saratoga Springs. Over his twenty-six years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at 518-584-5205, mdorsey@oalaw.com and www.oalaw.com.

The China Boogeyman, Revisited (Part I)

Exactly a decade ago, I wrote an article called “Of Eagles and Dragons”. The US economy was slumping a bit, and there was talk (even panic among some) about the prospect of China overtaking the US, and the yuan replacing the dollar. 

Today we’re hearing much of the same rhetoric, and I’m going to remind you, again, why that’s unlikely to happen any time soon.

For this installment, let’s address the notion that the dollar will soon be replaced by the yuan because it’s, frankly, farcical. 

In order for the dollar to be overtaken by the yuan, economies would need to simultaneously stop wanting dollars and start wanting the yuan as a replacement. 

Today, the US dollar represents more than 60% of foreign currency reserves (a further 20% being in euros), and the yuan constitutes less than 3%. The dollar is used in roughly 80% of trade worldwide, which is roughly the same as in 1989 (when Japan was the boogeyman of choice). The world is hooked on dollars.

The United States has had the largest economy in the world since 1890. Its ability and willingness to pay its debt obligations without default has meant that people and economies around the world could depend on the dollar as a stable store of value. Some nations even use the dollar as their official currency, and in many others the dollar is more highly prized than the local currency. 

In order to entice the world to hold yuan, the Chinese government would need to relinquish control over its exchange rate. Giving up control over anything is not something the Chinese communist party is known to be keen on, but let’s pretend for a minute that it did just that.

One of the first things to happen is that every Chinese citizen who could, would run out to exchange their yuan for some other currency. Given their druthers, not even the Chinese populace trusts the Chinese government, and they’d much prefer to hold euros or dollars.

If you don’t believe it, here’s a short story.

In 2014 I visited Argentina. At the time the currency exchange rate was very tightly controlled at about 8 pesos per dollar. The general population, however, didn’t trust their government, and didn’t want pesos, and I could go out on the street, literally, and buy pesos at a rate of about 12 per dollar. In other words, the people were willing to pay me a 50% premium rather than hold their own currency. Since then, the government has stopped controlling the exchange rate, in the same way China would need to. 

Go ahead and Google “USD to ARS”, and see what the rate is today… 

So, while the Chinese economy is far better than that of Argentina, in principle, something similar would happen, and the value of the yuan would crash. That’s certainly not something people want to see in a reserve currency. 

Consider that Chinese billionaires are buying up incredibly expensive real estate in Europe and North America, and many of these properties are never seen, let-alone lived in. One simple reason for this phenomenon is that these Chinese nationals are using foreign real estate as a store of value that is well out of reach of the Chinese government, and denominated in currencies other than the yuan.

Let’s suppose that the yuan, by some miracle, became freely traded without wrecking its value; it would still need to be seen as a safe alternative to the US dollar in order to gain market share. 

Roughly 25% of China’s currency reserve is in US dollars. There are some who say China could dump the dollar and crush its value. Consider, however, that there are two sides to every transaction. In order sell its dollars, it’s got to find a buyer. Who is going to buy all of those depressed dollars, and what will China be trading them for? 

The reality is that the US dollar is so widely held, with the US issuing more debt daily, that it is in no nation’s interest to destroy the dollar, and certainly not in favor of the yuan. 

Conceivably, the only way the US dollar loses favor in the foreseeable future, is if the US government destroys it itself, through poor fiscal and monetary policy. A massive default, and the ensuing sprint to safety would likely benefit the euro, pound, Swiss franc and yen, but hardly the yuan. 

Stephen Kyne, CFP® is a Partner at Sterling Manor Financial in Saratoga Springs and Rhinebeck. Securities offered through Cadaret, Grant & Co., Inc. Member FINRA/SIPC. Advisory services offered through Sterling Manor Financial, LLC, an SEC registered investment advisor or Cadaret Grant & Co., Inc. Sterling Manor Financial and Cadaret, Grant are separate entities.

You’re Doing A Great Job! 

I was talking to a first-time mom recently who was sure that certain things her little one is struggling with are, somehow, her fault: perhaps she didn’t play with him enough, she suggested, or spend enough one-on-one time with him. Mind you, her son is barely more than one; she and he are just out of the intense newborn/infant/first year time when there’s little else parents do than spend time with their baby. 

During that same conversation, another mom joined us — one whose kids are in college — and, though she didn’t know what we’d been talking about, she was eager to talk about motherhood with us because of us all having children. She mentioned something about how she’s sure she made so many mistakes when bringing up her kids, but they don’t seem to be “broken,” as she’d worried they might be.

A colleague of mine recently retired; I met her twenty-five years ago when she went back to work after raising a large family (her youngest was three at the time). Because of the number of kids she had, my friends and I looked to her as all-knowing about mothering, so it really made an impact on me when she replied to a coworker’s comment that she’s an expert on motherhood with, “You never become an expert.”

I’ve spent a lot of time on motherhood-focused social media and web sites over the past nineteen years and, if they are to be believed, the world is rife with mothers who don’t think they know what they’re doing, who are sure they’re doing it wrong, who are sure they’re ruining their kids somehow. Even those moms who seem super confident about their opinions and decisions struggle with this — you might not see it, but I can almost guarantee that it’s there. I’ve suffered from this quite a bit myself — there are so many things I worried about in the moment when my big boys were little (too much TV), things I wish I had given to my kids throughout my motherhood (cleaner house), and things I currently wish I could do (be at everyone’s game even though they’re all at the same time at different places). 

Though there are certainly things that mothers shouldn’t do, and legitimately bad mothers do exist, I thought that an article I read recently called “For Moms Who Worry a Lot” (2011) by Elliot Cohen, Ph.D. on the Psychology Today web site gave a good perspective: he pointed out that if you are a mother who worries, it is because “you are a very caring human being. You want to do the right thing. You want to be there for your children.” How lucky your children are to have a mother who cares about them so! He also noted that a strategy that might help if you’re feeling overwhelmed with the certainty that you are a terrible mother is to “distinguish between morally responsible decisions and ones that aren’t. In general, the former are more caring, beneficial, and respectful than the latter.” I liked this a lot, because it might help weed out worry about whether or not to introduce a sippy cup, or whether or not to sign your child up for T-ball, or whether or not your children will be traumatized by having to share a room — in general these kinds of decisions wouldn’t fall in the “moral” or “immoral” category, and I find that a very helpful way to recalibrate my thinking and reduce my worry about possibly making the wrong decision.

I read another article called “You’re Doing It All Wrong” by Natalie Nevares on the Mommywise site, which presented a helpful perspective in an ironically stern way. She wrote, “You’re wrong to expect that you’ll ever be perfect. You’re wrong to feel guilty for anything you’re not doing right. You’re wrong to think that there is any right way to mother or parent. You’re wrong to believe that self-flogging will serve you or your family in any way. The media gives you trillions of reasons to feel like a bad mom, or not good enough in myriad ways. But that doesn’t mean it’s true, or that you’re failing at anything. You’re doing your best. You’ve got a hard job, but you’re showing up every day. The only thing wrong you’re doing right now is being hard on yourself.” 

I thought these were perfect reminders for all mothers of all-aged children on Mother’s Day! As my own mom always says, “Pray and do the best you can” — it’s really that simple! I hope you all have a wonderful Mother’s Day!