Great advice and perspective. Carolina was able to address all my concerns and made me feel much better about the situation. Thank you very much.
Carolina Heinle
Hockessin, DE
Centreville, DE | Hockessin, DE | Kennett Square, PA | West Chester, PA
724 Yorklyn Rd #100
Hockessin, DE 19707
302-239-3700
Estate Planning
Estate planning is an essential step in ensuring that your family will handle your health and financial affairs the way you would like them to be handled, in the event of your absence or death. Whether it be due to death, illness or incapacity, the following documents are necessary in order for your wishes to be carried:
- Will
- Revocable Intervivos Trust (“Living Trust”)
- Durable Power of Attorney
- Health Care Power of Attorney (“Living Will”)
- Tangible Personal Property Memorandum
- Beneficiary Designations of Life Insurance/Retirement Assets
Will
A Will is a document that outlines how you want your assets to be distributed, and it appoints a person (the “Executor” or “Personal Representative”) who will make sure that your intentions are carried out upon your death. A Will is a legal document and it should be crafted by a lawyer trained to assist you in clearly identifying and outlining your intentions with respect to the appointment of a guardian for your minor children, and possibly establishing trusts which you may wish to establish at death for minor and/or incapacitated persons, or in cases where you simply want to protect your assets for a future period after your death for the benefit of one or more beneficiaries. A carefully drafted and artfully crafted Will can also implement tax planning and tax savings techniques. A Codicil is a legal amendment to an existing Will.
Revocable Intervivos Trust (“Living Trust”)
A Revocable Trust serves as a valuable supplement to a Will in certain cases. A person (the “Grantor”) contributes certain assets to the trust, or directs that the assets will be placed in the trust upon his death, but the person retains the right to revoke the trust and reclaim ownership of the trust assets at any time during his/her lifetime. Trust assets are not subject to probate, and pass directly to the beneficiaries of the trust in accordance with the provisions of the trust document.
Durable General Power of Attorney
A Durable Power of Attorney enables you to appoint a person as your attorney-in-fact/agent, to act for you in a limited or a general capacity with very few, if any, restrictions. Such a document, which is governed by state law, is a critical part of everyone’s estate plan, and it ensures that your agent will be empowered to handle all of your affairs until such time as you may wish to revoke or change the Durable General Power of Attorney. It is considered a “durable” document in that it endures a disability, so it is effective even if you become incapacitated. Without such a document, your family would have to petition a court to have a guardian appointed for you.
Health Care Power of Attorney (“Living Will”)
A Health Care Power of Attorney enables you to appoint someone to be in charge of making any and all decisions relating to your health, medical treatment, life sustaining treatment, etc. should you not be in a condition to make those decisions yourself. Such a document addresses the application of life sustaining procedures in the event of certain medical conditions, such as a persistent vegetative state and/or an end-stage medical condition. Sometimes a Health Care Power of Attorney/Medical Directive is called a “Living Will. This document is an essential part of everyone’s estate plan because it enables family members and/or close friends to know your intentions with respect to what type of treatment you want in the event you cannot communicate your wishes on your own.
Tangible Personal Property Memorandum
This is a separate document that is referenced in a Will and that enables you to direct the disposition of certain items of “tangible personal property” to a beneficiary of your choosing. Tangible personal property includes assets such as furniture, clothing, jewelry, collections, antiques, automobiles, etc., but not real estate, cash or other financial assets.
Beneficiary Designations on Life Insurance/Retirement Assets
Assets such as life insurance and retirement accounts have a contingent arrangement known as a “beneficiary designation”, which enables the owner to direct how he/she wishes these particular types of assets to be distributed upon death. Many times, people do not understand that what they state in such a beneficiary designation supersedes the provision of their Will, so it is critical that the primary and contingent beneficiary designations on life insurance and retirement assets are carefully crafted so as to coincide with and be compatible with the estate plan outlined in the Will, unless the person makes a conscious decision to provide for beneficiaries who are different from those beneficiaries named in their Will. In recent years, “Transfer on Death” beneficiary designations have become more prevalent with respect to non-retirement investment assets, and other accounts held at financial institutions. It is critical that any such “Transfer on Death” designation be analyzed and crafted, after first reviewing the plan outlined in a person’s Will, so as not to create an unintended result where the beneficiaries in the Will and the designation are not the same. For example, if you leave everything in your Will to a trust for the benefit of your minor children, but you have a beneficiary designation that simply names your minor children as the primary beneficiary of a particular asset (without mentioning the trust), then the children will receive the asset upon attaining the age of majority, even if the Will provides that they should not receive their inheritances until a later age.
Important Definitions:
Administrator
Person or institution appointed by the Orphans’ Court to manage the estate assets where no executor has been designated, or where the designated executor is unable or unwilling to serve.
Beneficiary
Person named in a Will or Trust to receive assets from the maker of the Will or Trust.
Decedent
Person who has died.
Executor (male)/Executrix (female)
Person or institution appointed in a Will, and thereafter appointed by the Orphans’ Court, to administer, manage and distribute a decedent’s estate in accordance with the terms of the Will. May also be referred to as a “Personal Representative”.
Grantor
Person who establishes a Trust. Also referred to as the “Trustor” or “Settlor”.
Intestate Heir
Person entitled to receive an asset under applicable state law, in the absence of a Will or Trust. If a person dies without a Will, he/she is deemed to have died “intestate”.
Personal Representative
Synonymous with the terms Executor or Administrator (see above).
Settlor
Trustor; Grantor. Alternate term for one who establishes a Trust.
Successor Trustee/Substitute Trustee
The Trustee who “takes over” upon the death, disability or resignation of the original Trustee or a prior Trustee.
Testator (male)/Testatrix (female)
Person who makes a Will.
Trustee
One who holds legal title to Trust assets, and also manages and distributes those assets in accordance with the terms and conditions of the Trust document. A Trustee may be an individual, or a bank, trust company or financial institution licensed to serve as a Trustee. A Trust may have one or more Trustees (Co-Trustees) who act together.
Trustor
One who establishes a Trust. The terms “Grantor” and “Settlor” are synonyms for “Trustor”.
If you would like to schedule a consultation, please call the firm at 610.436.0100 or submit the contact request form.
Tax Law
Tax Law
MacElree Harvey’s tax lawyers provide tax advice on a wide variety of personal, business and real estate matters, as well as thoughtful and experienced representation in obtaining rulings and other guidance from tax authorities and in resolving tax controversies.
We pride ourselves on providing well-thought-out advice in a manner that is timely, efficient and reflects our clients’ business objectives. The knowledge and experience of each tax lawyer is not limited to just the tax department, but is made available firm wide through close collaboration and cooperation across practices groups.
For taxpayers engaging in business and real estate transactions, success depends on compliance with a diverse and ever-evolving array of tax rules. Tax regulations and policies are constantly changing, and often vary widely in different national, regional, and local jurisdictions. A thorough understanding of the tax regulations can mean the difference between profitable transactions and harsh penalties.
MacElree Harvey provides comprehensive and strategic tax planning advice, combining a thorough knowledge of complex tax laws with a pragmatic problem-solving approach to our clients’ tax issues. We serve corporations, private equity funds, family businesses, individuals, partnerships, limited liability companies, and non-profits in a wide variety of transactions ranging from routine corporate formations to complex mergers and acquisitions. Our goal is to maximize after-tax results for our clients within applicable laws and regulations.
MacElree Harvey’s tax attorneys provide thoughtful and experienced advocacy on behalf of clients in federal, state and local tax disputes. We represent clients at all stages of the administrative process, from audit through administrative appeal and post–appeals mediation. We also represent clients in a wide range of tax collection matters, from initial assessment through enforced collection means (liens and levies).
MacElree Harvey’s Tax Controversy lawyers have an in-depth understanding of tax matters arising in controversies affecting a broad array of industries, including the financial products, hedge fund, manufacturing, transportation, entertainment, and utility industries. Likewise, we have significant experience with many of the issues on which the Internal Revenue Service (IRS) and state and local taxing authorities currently focus their resources. On the federal side those include debt/equity issues, the determination of ownership of property, capital versus expense classifications, losses from trading in securities and commodities, economic substance and business purpose, and placed-in-service date disputes. We have also handled cases involving tax shelters, accounting methods, and promoter registration. With respect to state and local controversies, our experience extends to a wide range of income, capital, and transactional tax issues.
We routinely advise clients on state and local tax planning matters, including entity selection, operational flow, and the tax consequences of acquisitions, reorganizations, and divestitures. Our lawyers have handled tax controversies in state courts and administrative proceedings.
We advise our not-for-profit clients on a broad range of matters including general tax issues, tax-exempt financing, securing and maintaining recognition of tax-exempt status, issues regarding payments to grantees (including foreign organizations), corporate governance, restructuring and bylaws issues, contract negotiations, employment issues, donor issues, real estate transactions, land use and local government issues, and the substantive areas of law with which the client is involved.
We have extensive experience in representing our nonprofit client in an application for real estate tax exemption, or defending our client when an existing tax exemption is changed or challenged. We have represented clients before tax assessment boards, tax courts, courts of general jurisdiction and have successfully negotiated tax settlements and payment in lien of tax (“PILOT”) agreements for our nonprofit and charitable clients.
Below are some of the forms that we prepare for clients:
- Form 1040 – Individual tax return
- Form 1041 – Fiduciary tax return
- Form 1065 – Partnership tax return
- Form 1120 – Corporate tax return
- For 1120 S – S Corporation tax return
- Form 990 – Foundation tax return
- Form 5227 – Split Interest Trust tax return
- Form Fin Cen 114 – Foreign Bank reporting form
- Form 1040 NR – Non Resident individual tax return
- Form 1023 – Application for Recognition of Exemption Under 501 (c) (3)
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If you would like to schedule a consultation, please call the firm at 610.436.0100 or submit the contact request form.
Trust & Estate Litigation
Estate Litigation encompasses all matters that would be heard in the Orphans’ Court division in the Court of Common Pleas. These types of disputes involve guardianships, will contests, trust terminations, estate tax appeals, accounting, and other litigation involving decedents’ estates.
Our attorneys who practice in this area represent executors, beneficiaries, banks, family business partnerships, trust companies and non-profit organizations. Not only does the area of estate litigation involve decedents’ estates and trusts, but also matters involving financial disputes concerning minor’s estates. The attorneys often interpret wills, trust documents and non-profit corporate articles of incorporation.
The estate litigation department often, and with increasing frequency, refers matters to private alternative dispute resolution. In matters involving family disputes, it is often desirable for the families to resolve their differences in a non-courtroom setting. However, in matters such as surcharge actions or Petitions to Remove Executors, our attorneys are well versed in the special Orphans’ Court rules established for disputes in the Court of Common Pleas of Pennsylvania.
There is also an increase in fiduciary liability cases. These are matters that often deal with self-dealing and fraud issues when a Power of Attorney, Trustee or Executor/Administrator of an estate is defending or prosecuting actions of wrongful taking from the entities that they have been charged to financially oversee. These matters typically involve accounting, surcharge actions, and actions to assess liability and damages.
Representative Cases
- Successfully filed a Petition with the Orphans’ Court to modify a Trust so that it could be terminated and the proceeds of the Trust were distributed to adult children when the purpose of the Trust was no longer being met. That purpose of the Trust was to protect the interests of any unborn children at the death of the Settlor. Since there were no such children, the Trust needed to be terminated.
- Helped a family deal with an incapacitated elder parent by finding a Guardianship protective service agency and a financial institution to act as Guardians of the person and of the estate, respectively. The agency Guardian of the person managed the nursing and activities of daily living needs of the elderly parent, while the financial institution invested and managed the funds.
- The Pennsylvania Department of Revenue denied a deduction on an estate tax return based on the valuation of a minority shareholder issue. The court upheld a Petition filed by our office challenging the denial of the deduction.
- A non-profit corporation decided to dissolve and distribute its assets. A Petition was filed by our office and was successful in obtaining court approval of the schedule of distribution.
- It was alleged that a Will was forged. Our office filed a Petition challenging said Will and it was established, through an expert, that the signature of the Decedent was traced. The matter successfully settled out of court.
- An Executor was taking money from an estate. Our office brought an action on behalf of the beneficiaries. The Executor was surcharged and ordered not only to put back the amount that he had taken from the estate but also reimburse the estate for the cost of the fees that were incurred.
If you would like to schedule a consultation, please call the firm at 610.436.0100 or submit the contact request form.
Estates & Trusts Law
Estates & Trusts Law
MacElree Harvey estate planning attorneys are committed to helping clients protect, preserve and control their assets during their lives, even if they become disabled.
Our estate lawyers also work with clients to help them implement a plan which will pass on their estates to loved ones in the manner they want – while minimizing the cost of Federal Estate, State Inheritance and Federal Estate Income taxes.
Estate and Trust Litigation, Guardianship and Orphans’ Court Procedures
Our attorneys represent executors, beneficiaries, banks, family business partnerships, trust companies and non-profit organizations. Not only does the area of estate litigation involve decedents’ estates and trusts, but also matters involving financial disputes concerning minors’ estates. The attorneys often interpret wills, trust documents and non-profit corporate articles of incorporation.
The estate litigation department often, and with increasing frequency, refers matters to private alternative dispute resolution. In matters involving family disputes, it is often desirable for the families to resolve their differences in a non-courtroom setting. However, in matters such as surcharge actions or Petitions to Remove Executors, our attorneys are well versed in the special Orphans’ Court rules established for disputes in the Court of Common Pleas of Pennsylvania.
There is also an increase in fiduciary liability cases. These are matters that often deal with self-dealing and fraud issues when a Power of Attorney, Trustee or Executor/Administrator of an estate is defending or prosecuting actions of wrongful taking from the entities that they have been charged to financially oversee. These matters typically involve accountings, surcharge actions and actions to assess liability and damages.
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