Estate planning involves several tools to ensure a smooth transition of assets upon death. One of these tools is the "Transfer on Death" (TOD) provision. This guide will provide a comprehensive look at TOD provisions under New York law and how they operate.
Understanding Transfer on Death
A Transfer on Death (TOD) provision is an estate planning tool that allows the owner of an asset to designate a beneficiary who will inherit the asset upon the owner's death. This strategy bypasses the probate process, making the transfer quicker and more efficient. The beneficiary has no rights to the asset during the owner's lifetime and the transfer only occurs upon the owner's death.
Transfer on Death vs. Joint Ownership
In New York, both TOD provisions and joint ownership are legal methods of transferring assets. Joint ownership entails two or more individuals holding an equal interest in an asset. Upon the death of one owner, the surviving owner(s) inherit the deceased's portion, bypassing probate. TOD provisions, on the other hand, allow an asset owner to name a beneficiary who will receive the asset upon their death, avoiding probate as well. However, the beneficiary has no ownership interest in the asset until the owner's death.
Creditor Protections from Transfer on Death
In New York, TOD provisions provide some protection from creditors. When an individual dies with unpaid debts, creditors usually have a specific timeframe to claim against the deceased's estate. Assets transferred via TOD provisions are generally inaccessible to creditors unless they can prove the transfer was fraudulent.
Conflicts Between Your Will and TOD Provisions
In New York, if a will and a TOD provision contradict each other, the TOD provision generally takes precedence. This means if your will states an asset should transfer to a particular person, but the TOD provision on the asset names someone else, the asset will go to the party named in the TOD provision.
Tax and Debt Implications of TOD
In New York, assets transferred via TOD are subject to federal estate tax rules just like assets transferred through other means. New York also imposes a state estate tax for estates exceeding a certain value. Regarding debts, assets transferred via TOD provisions are typically protected from the deceased's debts, unless the creditor can establish a fraudulent transfer.
Real Estate and TOD in New York
In New York, real estate cannot be transferred via TOD deeds. Instead, property owners often use other mechanisms such as joint ownership or trusts to avoid probate. Consulting with an experienced estate planning attorney is recommended to explore the best options for your circumstances.
The Validity of Lady Bird Deeds in New York
Lady Bird deeds, also known as enhanced life estate deeds, allow an individual to retain a life estate in a property while designating beneficiaries who will inherit the property upon their death. However, New York does not recognize Lady Bird deeds. Instead, similar outcomes can be achieved through the use of other estate planning tools, such as revocable living trusts.
How to Establish a TOD Provision in New York
Establishing a TOD provision in New York typically involves completing a form provided by the financial institution that holds the asset. Since New York does not recognize TOD deeds for real estate, alternative estate planning tools are used.
The Limitations of TOD Provisions
Despite their benefits, TOD provisions in New York have limitations. They do not permit complex dispositions of assets or provide detailed instructions like a will or trust can. Also, if the named beneficiary predeceases the owner, the asset will usually have to pass through probate unless an alternate beneficiary is named.
Revoking a TOD Provision
In New York, TOD provisions can be revoked or changed at any time during the owner's life, provided the owner is mentally competent. This usually involves completing a form provided by the financial institution holding the asset.
In conclusion, TOD provisions in New York offer a streamlined method of transferring assets upon death. However, the laws governing these provisions are complex and have significant implications. Therefore, it is advisable to consult with an experienced estate planning attorney to ensure your assets are distributed according to your wishes.
