Governor Cuomo has signed legislation that will significantly change New York legislation regarding powers of attorney.  The legislation, Chapter 323 of the 2020 Session Laws, will be effective 180 days from yesterday, December 15.  The signing was accompanied by an agreement to amend the legislation (principally, to require that two disinterested witnesses sign the power in addition to the notarization).  It is anticipated that the amendment will be enacted prior to the effective date of Chapter 323.

With the current COVID-19 pandemic, questions have arisen regarding how people can safely execute Wills and other documents that require witnesses.  Yesterday, by Executive Order 202.14, Governor Cuomo expressly authorized Wills, Trusts, Health Care Proxies, and Statutory Gifts Riders for Powers of Attorney to be witnessed remotely by virtual means.  The Executive Order is in effect until May 7, 2020.  Before this Executive Order, New York generally did not allow remote witnessing.

As we wrote here earlier this year, Governor Cuomo proposed to extend the “clawback law,” which had expired on January 1, 2019, in his fiscal year 2020 Executive Budget.  As a reminder, the clawback law pulled the value of all taxable gifts made within three years of a New York resident taxpayer’s death back into the New York resident taxpayer’s estate for New York estate tax purposes.

In November 2017, the IRS released proposed regulations clarifying the estate tax treatment of large lifetime gifts made now, while the federal estate and gift tax exemption is temporarily increased thanks to the Tax Cuts and Jobs Act of 2017.  These proposed regulations, if they go into effect as drafted, provide an opportunity for wealthy taxpayers to lock in the temporarily increased exemption by making large lifetime gifts.

In light of Sen. Elizabeth Warren’s (D-Mass) New Year’s Eve announcement that she is running for President, thus kicking off not only the new year, but also apparently the formal beginning of the Presidential campaign season, we thought it timely to consider the most recent estate tax proposal of Sen. Warren, and how it compares to the current state of the estate tax.