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Trusts& Estates

Our Trusts & Estates Practice Area attorneys treat each client's unique needs with the same level of attention, respect, and sensitivity we each would hope to receive in similar circumstances.

Overview

Barclay Damon's Trusts & Estates Practice Area delivers custom, tailored, practical legal solutions to suit the varying needs of individuals, families, businesses, and major financial institutions’ trust departments.

To provide the most comprehensive services to our clients, our Trusts & Estates Practice Area members frequently team with attorneys in our Commercial Litigation, Corporate, Tax, and Restructuring, Bankruptcy & Creditors’ Rights Practice Areas on matters involving contested trusts and estates; business succession planning; international tax planning; complex estate, gift, and income tax issues, elder care and Medicaid asset-protection planning, and special needs planning.

In addition to considering the legal, financial, tax, and logistical aspects of each matter, our team collaborates with clients, their financial advisors, and their loved ones to create a plan that best provides the care and financial protection they seek. Our trusts and estates attorneys treat each client’s unique needs with the same level of attention, respect, and sensitivity we each would hope to receive in similar circumstances. Whether a client’s goal is to protect, incentivize, or assist their heirs, we work with them to efficiently deliver proactive and creative solutions that not only meet the client’s specific needs but also minimize adverse tax consequences and other costs that can deplete a client’s assets.

Trust and Estate Wealth Management Planning

Our team counsels clients on the full range of personal estate planning matters designed to pass wealth between generations as smoothly and effectively as possible, including:

  • Preparing and executing wills, revocable trusts, irrevocable trusts, powers of attorney and statutory gift riders, living wills, and health care proxies
  • Special needs planning, including supplemental needs trusts
  • Asset-protection planning, including marital agreements, crisis Medicaid planning, and asset-restructuring strategies that include income-only and Medicaid trusts
  • Elder law and Community and Chronic Care Medicaid for those who remain at home or enter a nursing home
  • Asset structuring and valuation, including stocks, bonds, bank accounts, real estate, vacation property, insurance policies, retirement plans, deferred-compensation agreements, employee benefit plans, and closely held business interests
  • Charitable-giving techniques, including outright donations, charitable lead and remainder trusts, donor-advised funds, and private foundations
  • Estate plan design and implementing wealth management strategies, including analyzing and implementing gifting programs
  • Gift planning, including grantor retained annuity and uni-trusts, intentionally defective grantor trusts, and outright transfers of closely held business interests
  • Life insurance planning to fund for liquidity, financial, and business needs
  • State and federal estate, gift, and income tax counseling and advice

Business Succession Planning

Our attorneys have a deep understanding of the complex intersection of the estate planning, business law, financial, accounting, and tax issues that arise in business succession planning matters. Whether a family-owned or closely held business, we provide clients with the necessary counsel, advice, and solutions to help their businesses thrive for generations to come. We explore techniques to reduce future estate taxes and design a business succession plan that serves the objectives of the business owner, whether retirement; continuing the business by a transition to the next generation within the family, a management team, or an ESOP; or exiting by sale to an outside party. Our business succession plans equally strive to meet the objectives of the successor owner, including ensuring future control and management of the business.

We assist our clients with business succession planning issues that include:

  • Creating family limited partnerships and limited liability companies to discount the value of the business interests for transfer tax purposes, reducing potential income, estate, and gift taxes
  • Establishing methods of funding cross-purchase and redemption agreements, including the use of life insurance, deferred compensation, and other creative structures
  • Designing methods of equalizing or providing fair value for family members who do not participate in the business
  • Negotiating and preparing operating, shareholders’, or other owner agreements addressing management, governance, ownership, and transfer restrictions and buy-sell provisions among the owners or family members
  • Solving transfer of ownership and management problems, including family members who do not work for or participate in the management of the business

Elder Care Planning

Our attorneys and paralegals are committed to understanding the wide spectrum of solutions available to clients facing long-term-care costs that could exhaust their estates. We help clients balance competing goals of maintaining autonomy and independence while still leaving a legacy to their family. These aims are not easily reconciled, but we have successfully obtained Medicaid benefits for thousands throughout New York State. Even after our clients have entered a nursing home, it is never too late to discuss options, including:

  • Preserving a significant portion of a single person’s assets when they enter a nursing home
  • Preserving substantially all of the assets when a spouse enters a nursing home
  • Strategically transferring assets to get past the five-year look-back period for chronic Medicaid
  • Consulting with care managers, financial advisors, and family to develop uniquely tailored plans
  • Obtaining Medicaid benefits to pay for aide services allowing clients to remain safely at home

Special Needs and Disability Planning

Our attorneys represent adults with disabilities and families with children with special needs, implementing strategies that maximize access to relevant public benefits, including:

  • Advising on self-settled, third-party, and testamentary supplemental needs trusts
  • Article 17, 17A, and Article 81 guardianships or supported decision making
  • Planning to access Social Security and Medicaid benefits
  • Planning with ABLE Accounts
  • OPWDD/Waivered Medicaid, including self-direction

Administration

We assist clients with the administration of trusts and estates, including:

  • Outlining fiduciary duties and preparing all court filings related to the admission of the last will and testament to probate, appointing fiduciaries, inventorying assets, and judicially settling accounts as necessary
  • Providing direction and assisting in the collection, valuation, and distribution of estate, trust, and non-probate assets, including issues related to the valuation, management, and distribution of closely held business interests
  • Preparing federal and state estate, gift, and generation-skipping transfer tax returns and utilizing strategies to minimize taxes
  • Post-death estate and income tax planning using disclaimers and other planning strategies
  • Fiduciary income tax planning and preparation of fiduciary accountings and fiduciary income tax returns

Litigation

We litigate matters involving contested probates; estate and trust accountings; investment performances of trusts and estates; disputes involving closely held businesses; shareholder, operating, and buy-sell agreements; and the rights of a surviving spouse. Our attorneys routinely handle trust- and estate-related matters in Surrogate’s courts, the Appellate Division, the NY Court of Appeals, US Tax Court, and the US Supreme Court.

We additionally assist clients with the following litigation matters:

  • Will and trust contests
  • Beneficiary disputes
  • Disqualification of fiduciaries
  • Breach of fiduciary duty and abuse of power of attorney claims
  • Construction and reformation
  • Accounting issues
  • Electronic-discovery issues
  • Capacity
  • Contested Article 81 guardianships
Team Members
Representative Experience
  • Successfully prosecuted a Chronic Care Medicaid application and protected a modest amount of assets for a client. Also performed forensic accounting to assure no prior gifts would contaminate the client’s plan, helped the family avoid probate, protected life insurance and qualified funds, and reviewed and approved the Medicaid determination.

  • Helped a paraplegic move into his daughter’s home, successfully obtain Community Medicaid, and obtain 24/7 care paid for by the Community Medicaid. Also secured rights for the client's daughter to charge him $3,500/month in rent. 

  • Assisted a client with a progressive memory impairment in obtaining Community Medicaid that allowed him and his wife to continue living together in a community. When the client’s disease progressed, helped him successfully enter a nursing home while protecting he and his wife’s assets, which allowed her to remain in the community.

  • Helped an 88-year-old client remain in his home in the community by getting him Community Medicaid that paid for aide service and up to $45,000 in home improvements every three years. Protected the client’s home, the balance of assets, and secured rights for the client’s disabled daughter to be paid $11/hour to look after him.

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