New York Last Will in Nevada

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Goodman60
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New York Last Will in Nevada

Post by Goodman60 »

About two years ago, my brother, who is single, moved from New York to Las Vegas. He has a Last Will & Testament that was done in 2015 when he still lived in New York. His will names me as executor and leaves his estate to my two adult children. That being said, the bulk of his assets are in a brokerage account that is a Transfer-On-Death (TOD) account, again with my adult children as the beneficiaries. He rents (owns no real estate). Is there any pressing need to do a new will now that he's a resident of Nevada? All that will be left to probate will be a small bank account and whatever personal assets he has. He is 58 and in average (but not fabulous) health.

Also I have a full financial durable power of attorney, again done in NY in 2015. Does that need to be updated or is the current one OK?
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Lee_WSP
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Re: New York Last Will in Nevada

Post by Lee_WSP »

You should always update your will for every major life event and review it once a year. If he cannot afford to do so.... I suppose his estate would pass without much fanfare anyway.
Bogle64Pilot
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Re: New York Last Will in Nevada

Post by Bogle64Pilot »

I recommend Layne Rushforth and Steve Oshins in Vegas. Your brother may be a little bit too “small time” for them though but doesn’t hurt to ask.
tibbitts
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Re: New York Last Will in Nevada

Post by tibbitts »

The general point is that most people who move from state to state every few years, or even more often, don't update their documents. It's not automatic like getting a new driver's license (which these days might not be practical either, thanks to the convergence of Covid and RealID combined with poor planning by some states.) So the question remains, what happens if you don't update your documents, and how state-dependent is that? Are there some combinations of states that "work" better or worse, or just differently, than others in this regard?
bsteiner
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Re: New York Last Will in Nevada

Post by bsteiner »

tibbitts wrote: Sun Jun 20, 2021 8:44 am The general point is that most people who move from state to state every few years, or even more often, don't update their documents. It's not automatic like getting a new driver's license (which these days might not be practical either, thanks to the convergence of Covid and RealID combined with poor planning by some states.) So the question remains, what happens if you don't update your documents, and how state-dependent is that? Are there some combinations of states that "work" better or worse, or just differently, than others in this regard?
In most if not all cases, a Will is still valid if you move to another state. The issue is whether what it says is still appropriate (assuming it was appropriate when it was signed).

In this case, since the testator is leaving his estate to his nieces and nephews. If any of the nieces or nephews might have a taxable estate, might want his/her inheritance to be protected against his/her spouses or creditors, or Medicaid, the testator may want to provide for them in trust rather than outright. That's independent of his moving to another state, but a review often spots other issues.

About 1/3 of the states have a state estate or inheritance tax. There are variations among these states in how they work. That could affect the planning for married persons (and occasionally for unmarried persons, such as in New Jersey where the inheritance tax on transfers to nieces and nephews in trust is substantially less than the tax on outright transfers to them).

Most states give the surviving spouse the right to an elective share (a share of the deceased spouse's estate) unless the surviving spouse waived that right or agreed to accept less than what state law otherwise requires. Some of these states allow provision in trust to count toward satisfying the elective share, though these rules vary from state to state. Most but not all states include most nonprobate assets in the estate for this purpose. If your estate plan is geared to the elective share, you may want to review your plan if you move to another state.

A few states have restrictions on who may be an executor or personal representative. For example, Florida requires that a personal representative be either a relative or a Florida resident. If you move to or from such a state, you might want to review your choice of executors. In Florida, if the person you want isn't a relative or a Florida resident, and you have a strong preference for that person over your second choice, a revocable trust is a common workaround.

About half the states, such as New York, limit the duration of trusts to lives in being at the testator's death plus 21 years, whereas the other states, including Nevada, allow trusts to continue for a longer period of time, or forever. Given the activity among states in lengthening the permissible period or eliminating the restriction, we've been drafting this provision so it will work in any state.

Nevada is a community property state, whereas New York isn't. A married couple may want to review how that would apply, what if any choices they might have, and what if any steps they might want to take.

Different states have different ways of determining when a trust is taxable in that state. Nevada doesn't have a state income tax.

There are a few situations where a revocable trust is a workaround in some states:

1. A few states have restrictions on who may be an executor or personal representative. For example, Florida requires that a personal representative be either a relative or a Florida resident. If the person you want isn't a relative or a Florida resident, and you have a strong preference for that person over your second choice, a revocable trust is a common workaround.

2. In a few states, probating a Will is difficult or expensive. It's said to be difficult in California. In Delaware, the court fee is 1.75% of the probate assets other than real estate.

3. There may also be a few states that require trusts under a Will to file periodic accountings with the court. This used to be more common before many states adopted the Uniform Trust Code, but there may still be a few such states.

4. A few states tax trusts created by a resident even if there's no trustee in the state if they were created by Will but not if they were created during lifetime. If the trust is expected to have substantial income, a revocable trust could avoid the state income tax.

5. Most if not all states tax estates of decedents who were domiciled in that state. However, about half the states tax trusts based on the residence of the trustees, or where the trust is administered. If you're in such a state, and you expect your estate to have (and accumulate) a substantial amount of income during the estate administration, a revocable trust with out-of-state trustees is a workaround. The trustees have to remember not to make a Section 645 election to treat the trust as part of the estate for income tax purposes.
Topic Author
Goodman60
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Re: New York Last Will in Nevada

Post by Goodman60 »

Thank you Bsteiner. Your response was what I wanted to know and beyond.
tibbitts
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Re: New York Last Will in Nevada

Post by tibbitts »

bsteiner wrote: Sun Jun 20, 2021 9:27 am 1. A few states have restrictions on who may be an executor or personal representative. For example, Florida requires that a personal representative be either a relative or a Florida resident. If the person you want isn't a relative or a Florida resident, and you have a strong preference for that person over your second choice, a revocable trust is a common workaround.
I don't think I knew that, and it's very helpful information to me since I was considering moving back to Florida, and that would contradict the will I have now. Establishing a trust for the sole purpose of defeating that would be annoying, plus there would still be a will for whatever wasn't owned by the trust, so I guess it would still be a problem. Anyway thanks for the detailed explanation.
Makefile
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Re: New York Last Will in Nevada

Post by Makefile »

When moving out of a high-income-tax state (NY) would making a will in the new state be another checkbox to help establish residency in the new state?
bsteiner
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Re: New York Last Will in Nevada

Post by bsteiner »

tibbitts wrote: Tue Jun 22, 2021 7:05 pm
bsteiner wrote: Sun Jun 20, 2021 9:27 am 1. A few states have restrictions on who may be an executor or personal representative. For example, Florida requires that a personal representative be either a relative or a Florida resident. If the person you want isn't a relative or a Florida resident, and you have a strong preference for that person over your second choice, a revocable trust is a common workaround.
I don't think I knew that, and it's very helpful information to me since I was considering moving back to Florida, and that would contradict the will I have now. Establishing a trust for the sole purpose of defeating that would be annoying, plus there would still be a will for whatever wasn't owned by the trust, so I guess it would still be a problem. Anyway thanks for the detailed explanation.
For many people having their second choice is satisfactory. After all, if their first choice isn’t available they’ have to make do with their second choice.
tibbitts
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Re: New York Last Will in Nevada

Post by tibbitts »

bsteiner wrote: Tue Jun 22, 2021 7:22 pm
tibbitts wrote: Tue Jun 22, 2021 7:05 pm
bsteiner wrote: Sun Jun 20, 2021 9:27 am 1. A few states have restrictions on who may be an executor or personal representative. For example, Florida requires that a personal representative be either a relative or a Florida resident. If the person you want isn't a relative or a Florida resident, and you have a strong preference for that person over your second choice, a revocable trust is a common workaround.
I don't think I knew that, and it's very helpful information to me since I was considering moving back to Florida, and that would contradict the will I have now. Establishing a trust for the sole purpose of defeating that would be annoying, plus there would still be a will for whatever wasn't owned by the trust, so I guess it would still be a problem. Anyway thanks for the detailed explanation.
For many people having their second choice is satisfactory. After all, if their first choice isn’t available they’ have to make do with their second choice.
In my case none of the choices would qualify though.
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