Estate Planning and Wills
Law Office of Michael J. Giangrieco
Montrose, PA 18801
Hours of Operation
- Monday-Thursday7:30 a.m. - 4:30 p.m.
- Friday7:30 a.m. - 3:30 p.m.
General Civil Legal PracticeFrom their office in Montrose, Pennsylvania, Attorney Michael J. Giangrieco together with his four associates brings several decades of professional legal experience to the Northern Tier of Pennsylvania and the Southern Tier of New York. From Family Law and real estate law to estate planning, oil and gas planning and personal injury, the attorneys and staff at Giangrieco Law are experienced and prepared to exceed your expectations. You will be guided every step of the way from initial consultation all the way through the entire legal process.
Wilbur D. (Bud) Dahlgren, Esq., one of Michael’s associates and the attorney appearing on “Lawyers on Call,” joined Michael’s law firm in April 2012. He has been an attorney since 1984, and is licensed to assist clients in New York, Pennsylvania and Florida. His practice areas include wills and trusts; estate planning and administration; elder law; oil and gas planning; LLC and partnership planning; business succession planning; and tax-exempt organizations.
Bud is a member of the Pennsylvania State Bar Association, New York State Bar Association, the Florida State Bar Association, the Susquehanna County Bar Association, and the New York State Bar Association Trusts and Estates Law Section and the Elder Law Section. He has been a frequent speaker for community organizations, local businesses and the state and local Bar on topics such as estate planning, long term medical care planning, elder law, planned giving and changes in the tax law.
Bud resides in Binghamton, New York with his wife Elizabeth, a recently retired economics professor, and his son Jeffrey is attending Syracuse University College of Law.
Bud’s educational background is as follows:
Bachelor of Arts, summa cum laude- State University of New York at Cortland-1979
Jurist Doctorate, magna cum laude- Syracuse University- 1982
Frequently Asked Questions
- Do I need a Will?
- A Will allows a person: (i) to choose who will benefit from his or her property, investments and bank accounts, (ii) to determine how much each beneficiary receives, (iii) to place restrictions on the use of the inheritance through a trust, (iv) to choose the “Executor”, the person who will be in charge of the estate, and (v) to include provisions that will help minimize estate, inheritance and income taxes. If you do not have a Will, then state law determines who receives your assets, and who will be in charge of your estate. It is always better for you to have a Will based on your goals and desires. We always suggest that you use a lawyer to prepare a will: (i) to insure compliance with each state’s will execution requirements, and (ii) to explore other viable planning options and forms.
- Will my estate (my property) be subject to tax when I die?
- There is a special tax, called either the estate tax (in NY) or inheritance tax (in PA), that may apply to an estate based upon the value of the assets you own when you die. Basically, a “snapshot” is taken of your assets as of the date of death. The assets are then valued based upon their “fair market value”. “Fair market value” is not what you paid for the assets, but what you could obtain if you sold the assets to an unrelated buyer. Certain deductions apply, the most important being the marital deduction for anything that passes to the surviving spouse. In New York, the net estate (after deductions) must exceed $1 million before the tax applies. The tax is at a rate of 6% to 12% of the value of the entire estate (not just the excess over $1 million). In Pennsylvania, anything passing to a spouse is not subject to tax, but children and grandchildren pay an inheritance tax of 4.5%, parents, brothers and sisters pay an inheritance tax of 12%, and unrelated beneficiaries pay an inheritance tax of 15%. Unlike in New York, there is not a $1 million floor. There also is a federal estate tax, with a 40% rate, but it only applies if the estate exceeds $5 million. As part of the estate planning process, we explore various options that may be available to minimize the estate tax.
- Do I need a Power of Attorney and a Health Care Proxy?
- These forms allow you to choose who will handle your financial affairs and health related decisions if you become incapacitated. Each state has its own Power of Attorney and Health Care Proxy forms. The forms have a place for your name and address and the name and address of your primary “agent”. We suggest that you also name an alternate “agent” in case the primary agent cannot serve. The Power of Attorney form authorizes the agent to manage your assets, cash checks, pay bills, and sign pertinent forms on your behalf. The Health Care Proxy authorizes the agent to make health care decisions on your behalf, after consulting with your physician, regarding courses of treatment, medications, hospital stays, and the like. You can elect to give the agent the ability to make “life sustaining” treatment decisions. As with your will, we suggest using a lawyer to prepare these forms so that the state specific form provisions and execution requirements are satisfied.
- What is a Trust and what are Trusts used for?
- A trust is a separate entity created by you to handle and manage assets for persons and purposes selected by you. The person creating a trust is the “Grantor” or “Settlor”, the person managing the trust is called the “Trustee”, and the person receiving benefits from the trust is called the “Beneficiary”. The trust can be created in your will (a testamentary trust) or by a separate trust agreement during your lifetime (an “inter vivos” or “living” trust). Trusts can be created for various purposes, including: - Trusts for children and grandchildren to be used for specific purposes, such as education expenses. - Trusts set up for tax planning purposes which are designed to reduce the amount of estate taxes, inheritance taxes and/or income taxes, such as credit shelter trusts, marital trusts or life insurance trusts. - Trusts designed to protect assets in case long-term nursing home care or Medicaid is needed, so-called “Medicaid Trusts”. - Trusts to protect assets for disabled or incapacitated individuals, such as a “Supplemental Needs Trusts”. - Trusts set up to avoid probate and minimize expenses, so-called “Grantor” or “Revocable” trusts. An attorney with competent knowledge of trust and estate law can help you explore whether a trust or trusts should be part of your estate plan.
- What can I do to protect assets in case I need nursing home care?
- Nursing home care is very expensive, with round-the-clock skilled care costing $5,000 to $10,000 a month. Medicare and private health care insurance do not pay for such “custodial” care, although brief nursing home stays for “rehabilitation” purposes could be covered. A person could buy “long-term care insurance”, which is a special insurance designed specifically to pay for nursing home care. This option always should be explored, but normally the insurance must be purchased well before the skilled care is needed. A large majority of people, however, do not have long-term care insurance, as the premiums can be fairly expensive. Most people, therefore, have to use their own assets to pay for their care, until they “spend down” to certain “resources” and “income” limits, at which point a government program named “Medicaid” could provide coverage. These Medicaid limits are very low, so most people will have to deplete almost all of their assets and income to qualify. In the case of a couple where one spouse needs nursing home care, Medicaid law does protect the home and a certain amount of investments for the other spouse. There are ways to protect assets from nursing home costs involving the gifting of assets to children and others, but most types of gifts must be completed well in advance (up to five years) before Medicaid is applied for. Some fairly common gifting options include transferring real estate with a “retained life use” or transferring investments to irrevocable “Medicaid Trusts”. Before undertaking any such planning, you should seek the advice of an attorney well- versed in elder law.
- What is the first thing an Executor named in a will must do after a person dies?
- The first this that an Executor must do is “probate” the Will. Probate in the process by which an Executor obtains court approval to deal with a decedent’s assets. An Executor has no authority until the appropriate judge says so. In New York, the probate of the will occurs in the Surrogate Court located in the County where the decedent died. The process starts with the filing of a probate petition, the original Will, family tree and several other notices and consents with the Surrogate Judge.
- Is the Executor required to notify other family members as part of the probate process?
- An important component of the probate process is obtaining the written consents of “distributees” – those people who would inherit the decedent’s estate if there was no will. In most cases, this means the decedent’s spouse and children, or if none, then decedent’s parents or siblings. This is the case even if the so called distributes are not mentioned in the will. If the distributees will not sign a written consent, then a citation must be obtained from the court and served on the distributee. The court then sets a return date where the person has a chance to file objections to the will.
- Do any other persons named in the will have to be notified?
- Yes, any other person or charity receiving a bequest under the will must receive a Notice of Probate. However, their written consent is not necessary. Only the immediate family must consent or be cited.
- What is the Surrogate Judge’s role in the process?
- The Judge will make sure: (i) that the probate petition and related documents are all in order; (ii) that the will was properly executed with at least two disinterested witnesses, (iii) that the decedent was legally competent when he or she signed the will, and (iv) that the decedent was not improperly influenced into signing the will. After all this, the Surrogate Judge will issue “Letters Testamentary” – a certificate that the Executor can use to start marshalling and managing the decedent’s assets. Without this certificate, the Executor is unable to take action.
- The probate process – the process through which a person named as Executor in a will is authorized by the Surrogate Judge to assume his or her duties. What are some of the duties of an Executor?
- The first thing an Executor must do is identify what assets a decedent owned and take steps to protect them. For example, if a decedent owned a house, the Executor should secure the home and protect any valuables located in the home. I suggest that the Executor change the locks on the doors, activate the home security system (if any), and prepare a list and take pictures of the contents of the house. Also, any cars should be taken off the road, locked and put in the garage if possible.
- What about a decedent’s bank accounts, investment accounts, stocks and bonds?
- The Executor should provide a copy of the Letters Testamentary – the proof of his or her appointment obtained from the Surrogate Court - to each bank and investment company where the decedent had assets. Hopefully, the decedent previously provided the Executor with the list of his or her assets. If not, the Executor will need to look for bank statements, brokerage statements, or even a decedent’s income tax return to locate the accounts. The more information which the decedent had provided to the Executor in advance the better. Once the bank or brokerage company is notified, then the Executor will be the only person who will be permitted to deal with the assets in the decedent’s account. Eventually the Executor will set up a new separate account in the name of the estate to transfer assets into out of which estate bills can be paid and distributions can be made to the beneficiaries named in the decedent’s will . The Executor will need to get certain information from the financial institutions, such as (i) written conformation of the date of death values of the accounts; and (ii) income which is earned from the account both before and after the date of death. This information is needed to complete several forms an Executor must file, including an Inventory of Assets, estate and inheritance tax returns, and final income tax returns for both the decedent and the estate
- How soon will the beneficiaries of an Estate receive a distribution from an Executor?
- The Executor must make sure that most if not all of the estate expenses and debts of the decedent are paid before any payments to beneficiaries are made. Included in this list are (i) funeral and burial expenses, (ii) income, estate and inheritance estate taxes, (iii)credit card bills, mortgages, and health care bills, and (iv) court fees and attorney fees. Accordingly, the Executor must take care of a great deal of expenses and bills before distributions can be made. We do not want an Executor to make premature payments to beneficiaries and then leave himself or herself short. As a rule of thumb we help the Executor to be in a position to make significant partial distributions to the heirs within seven to nine months of the date of death, and to have final distributions completed within one to two years.
- Probate seems to be a fairly complicated process. Is there any way for a person to take steps prior to death to avoid or minimize the impact of probate?
- Probate only applies to assets held in the decedent’s name alone. There are several ways for a person to own assets so that probate can be avoided. 1. Jointly owned assets which are titled in the name of the decedent and another person automatically pass to the joint owner upon the death of the other joint owner. The surviving joint owner only needs to give a death certificate to have the joint asset put in his or her name. With real estate, the property automatically passes to the joint owner even without a new deed. It is important to note that the asset must be titled as “joint tenants with the right of survivorship.” If the asset is titled as “tenants in common” then it will be subject to probate and not pass automatically to the joint owner. 2. Another way to avoid probate is to have a designated beneficiary for the account. For Life Insurance, IRA’s, retirement benefits and annuities, the owner can prepare and submit a beneficiary designation form setting forth who will receive the account after his or her death. Starting several years ago, a person can now name a beneficiary for regular investment and brokerage accounts. This is accomplished by using a “Transfer on Death” (TOD) form. It is important to note that a decedent’s Will does not govern the distribution of jointly owned assets or assets with designated beneficiaries. Thus, it is critical to coordinate beneficiary designations and jointly owned assets with the will provisions. 3. A third way to avoid probate is for the person to set up a revocable trust. We have talked about trusts before, but this one is different. The person who sets up the trust is not only its creator but also the trustee and the beneficiary. By putting assets into the trust prior to death, the trust will control the distribution of the decedent’s assets rather than the will, thereby avoiding probate. Revocable trusts have become quite popular and we will talk more about the pros and cons of a revocable trust next time.