BAEC Bulletin | November/December 2022 | 21
The Appellate Division held that Supreme Court’s grant of the wife’s motion for summary judgment, awarding the QTIP Trust, Plaintiff’s action for malpractice was no longer premature. Relying upon Schneider v. Finmann, 15 NY3d 306, the Fourth Department held that the Plaintiff as the personal representative of the decedent’s estate may bring a claim for legal malpractice alleging that Defendants were negligent in the estate planning for Decedent. The Court held that Defendants had failed to meet their initial burden of establishing that Decedent’s estate did not sustain any damages or that any damages were speculative. So, the Decedent gave his wife $1 million outright, yet she is still entitled to a $1 million QTIP trust, and the lawyers who drafted the Will got sued for not terminating the prenuptial agreement. A cautionary tale to all estate planning lawyers. IRS Notice 2022-53 The SECURE Act of 2019 made numerous changes to the rules regarding IRAs. One of those changes was to require that an inherited IRA from which the decedent was taking Required Minimum Distributions must be paid out within 10 years. Many experts interpreted the Act to provide that if a decedent died after his Required Beginning Date (now age 72), his designated beneficiary could withdraw the IRA at any time over the 10 years, and would not be required to take Required Minimum Distributions (RMDs). But. in February 2022, the IRS issued proposed regulations which, among other things, said that if the decedent died after his Required Beginning Date, his beneficiary must liquidate the IRA by the 10-year deadline, and the beneficiary must at least take RMDs in years one through nine as least as rapidly as the decedent was taking them. That proposed regulation brought a torrent of comme nt from tax professionals who did not read the SECURE Act as requiring RMDs In response the IRS issued Notice 2022-53. It continues the RMD/10-year requirement, but provides that in the case of designated beneficiaries who did not take RMDs in 2020 or 2021, they will not be subject to the 50% penalty tax for failure to take RMDs. They will still have to take the RMDs for 2020 and 2021 in 2023, but they will not be subject to penalties.
Resnick v. State of New York, 2022 NY Slip. Op. 51006(U) (Ct. Cl., 2022) This New York Court of Claims decision in regard to a wrongful death claim against the State of New York provides a detailed discussion of the jurisdictional necessity of appending a copy of Letters of Appointment of the fiduciary of the estate of the decedent to the Claim. In this case, the “Proposed Administrator” filed her claim without attaching Letters, because they had not yet been issued. As a result, the Claim was dismissed. Later, after Letters were issued, she filed another claim, but neglected to attach a copy of Letters. In response to a motion to dismiss the claim, the Administrator submitted a copy of Letters as part of her motion papers. But the claim was dismissed as untimely because it was not served with Letters attached, within 90 days of appointment of the estate’s fiduciary. In its decision, the Court of Claims noted that the requirements of the Court of Claims Act with regard to filing a claim within 90 days of appointment of the estate’s fiduciary, and attaching a copy of Letters to the claim, are strictly construed. Strict construction of the Court of Claims act is a precondition to the State’s waiver of sovereign immunity. •
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