New York Consolidated Laws, General Obligations Law - GOB § 5-1514. Certain gift transactions;  formal requirements;  statutory form




1. If the principal intends to authorize the agent to make gifts other than gifts authorized by subdivision fourteen of section 5-1502I of this title, the principal must expressly grant such authority either in a statutory gifts rider to a statutory short form power of attorney or in a non-statutory power of attorney executed pursuant to the requirements of paragraph (b) of subdivision nine of this section.

2. The principal may authorize the agent to make gifts to the principal's spouse, children and more remote descendents, and parents, not to exceed, for each donee, the annual federal gift tax exclusion amount pursuant to the Internal Revenue Code.  1  For gifts to the principal's children and more remote descendants, and parents, the maximum amount of the gift to each donee shall not exceed twice the gift tax exclusion amount, if the principal's spouse agrees to split gift treatment pursuant to the Internal Revenue Code.

3. The principal may also authorize the agent to:

(a) make gifts up to a specified dollar amount, or unlimited in amount;

(b) make gifts to any person or persons;

(c) make gifts in any of the following ways:

(1) opening, modifying or terminating a deposit account in the name of the principal and other joint tenants;

(2) opening, modifying or terminating any other joint account in the name of the principal and other joint tenants;

(3) opening, modifying or terminating a bank account in trust form as described in section 7-5.1 of the estates, powers and trusts law , and designate or change the beneficiary or beneficiaries of such account;

(4) opening, modifying or terminating a transfer on death account as described in part four of article thirteen of the estates, powers and trusts law, and designate or change the beneficiary or beneficiaries of such account;

(5) changing the beneficiary or beneficiaries of any contract of insurance on the life of the principal or annuity contract for the benefit of the principal;

(6) procuring new, different or additional contracts of insurance on the life of the principal or annuity contracts for the benefit of the principal and designate the beneficiary or beneficiaries of any such contract;

(7) designating or changing the beneficiary or beneficiaries of any type of retirement benefit or plan;

(8) creating, amending, revoking or terminating an inter vivos trust;  and

(9) opening, modifying or terminating other property interests or rights of survivorship, and designate or change the beneficiary or beneficiaries therein.

A gift to an individual authorized by this subdivision may be made outright, by exercise or release of a presently exercisable general or special power of appointment held by the principal, to a trust established or created for such individual, to a Uniform Transfers to Minors Act account for such individual (regardless of who is the custodian), or to a tuition savings account or prepaid tuition plan as defined under section 529 of the Internal Revenue Code for the benefit of such individual (without regard to who is the account owner or responsible individual for such account).

4. An agent may not:

(a) exercise any authority described in subdivision two or three of this section unless such authority is expressly granted in a statutory gifts rider to a statutory short form power of attorney or in a non-statutory power of attorney executed pursuant to the requirements of paragraph (b) of subdivision nine of this section;

(b) make a gift to himself or herself or create in himself or herself an interest in the principal's property pursuant to any grant of authority described in subdivision two or three of this section unless such authority is expressly granted in a statutory gifts rider to a statutory short form power of attorney or in a non-statutory power of attorney executed pursuant to the requirements of paragraph (b) of subdivision nine of this section.

5. Any authority granted to an agent pursuant to subdivision two or three or paragraph (b) of subdivision four of this section must be exercised according to any instructions in this document or in any other writing provided by the principal regarding the exercise of any authority, or otherwise for purposes which the agent reasonably deems to be in the best interest of the principal, specifically including financial, estate, or tax planning, including minimization of income, estate, inheritance, generation-skipping transfer or gift taxes.

6. Construction of the provisions of the statutory gifts rider.  (a) In a statutory gifts rider to a statutory short form power of attorney, the language “I grant authority to my agent to make gifts to my spouse, children and more remote descendants, and parents, not to exceed, for each donee, the annual federal gift tax exclusion amount pursuant to the Internal Revenue Code.  For gifts to my children and more remote descendants, and parents, the maximum amount of the gift to each donee shall not exceed twice the gift tax exclusion amount, if my spouse agrees to split gift treatment pursuant to the Internal Revenue Code” must be construed to mean that the principal authorizes the agent:

(1) To make gifts on behalf of the principal to the principal's spouse, children and other descendants, and parents.  Gifts to a donee shall not exceed in any calendar year the amount of the federal gift tax exclusion available to the principal under section 2503(b) of the Internal Revenue Code .  Gifts may be made outright or by exercise or release of a presently exercisable general power or special power of appointment held by the principal, to a trust established or created for such individual (provided that gifts to such trust qualify for the federal gift tax exclusion under section 2503(b) or (c) of the Internal Revenue Code ), to a Uniform Transfers to Minors Act account for such individual (regardless of who is the custodian), to a tuition savings account or prepaid tuition plan as defined under section 529 of the Internal Revenue Code for the benefit of such individual (without regard to who is the account owner of or responsible person for such account);

(2) To make gifts up to twice the annual federal gift tax exclusion amount on behalf of both the principal and the principal's spouse, to the principal's children and other descendants, and parents, if the principal's spouse consents to the splitting of such gifts pursuant to section 2513 of the Internal Revenue Code ;

(3) To consent, pursuant to Section 2513(a) of the Internal Revenue Code , to the splitting of gifts made by the principal's spouse to the principal's children and other descendants in any amount, and to the splitting of gifts made by the principal's spouse to any other persons in amounts not exceeding the aggregate annual gift tax exclusions for both spouses under Section 2503(b) of said Code (or cognate provisions of any successor statute);  and

(4) To satisfy pledges made to organizations, whether charitable or otherwise, by the principal.

(b) Any authority granted to an agent under a statutory gifts rider to a statutory short form power of attorney must be construed to mean that the principal authorizes the agent:

(1) To prepare, execute, consent to on behalf of the principal, and file any return, report, declaration or other document required by the laws of the United States, or by any state or political subdivision thereof, or by any foreign country or political subdivision thereof, which the agent deems to be desirable or necessary with respect to any gift made under the authority of this section;

(2) To execute, acknowledge, seal and deliver any deed, assignment, agreement, trust agreement, authorization, check, or other instrument which the agent deems useful for the accomplishment of any of the purposes enumerated in this section;

(3) To prosecute, defend, submit to alternative dispute resolution, settle and propose or accept a compromise with respect to any claim existing in favor of or against the principal based on or involving any gift transaction or to intervene in any related action or proceeding;

(4) To hire, discharge and compensate any attorney, accountant, expert witness, or other assistant or assistants when the agent deems that action to be desirable for the proper execution by the agent of any of the authorities described in this section, and for the keeping of needed records thereof;  and

(5) In general, and in addition to but not in contravention of all the specific acts listed in this section, to do any other act or acts which the agent deems desirable or necessary to complete any such gift on behalf of the principal.

(c) The authority explicitly authorized in this section shall be construed to include any like authority authorized in any other section of this title.  Accordingly, such like authorities as are authorized in any other section of this title may not be exercised by the agent unless they are expressly granted to the agent in the statutory gifts rider or in a non-statutory power of attorney executed pursuant to the requirements of paragraph (b) of subdivision nine of this section.

(d) The statutory gifts rider may be modified pursuant to section 5-1503 of this title to contain additional provisions authorizing the agent to make any or all of the transactions specified in subdivision three of this section.

7. All authority described in this section shall be exercisable equally with respect to a gift of any property in which the principal is interested at the time the power of attorney is given or in which the principal becomes interested after that time, and whether located in this state or elsewhere.

8. If, after naming the spouse as a permissible recipient of gifting, the principal's marriage is terminated by divorce or annulment, as defined in subparagraph two of paragraph (f) of section 5-1.4 of the estates, powers and trusts law , the divorce or annulment revokes the authority to gift to the former spouse, unless the statutory gifts rider or the non-statutory power of attorney executed pursuant to the requirements of paragraph (b) of subdivision nine of this section expressly provides otherwise.  If the authority to gift to the former spouse is revoked solely by this subdivision, it shall be revived by the principal's remarriage to the former spouse.

9. To be valid, a statutory gifts rider to a statutory short form power of attorney must:

(a) Be typed or printed using letters which are legible or of clear type no less than twelve point in size, or, if in writing, a reasonable equivalent thereof.

(b) Be signed and dated by a principal with capacity, with the signature of the principal duly acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property, and witnessed by two persons who are not named in the instrument as permissible recipients of gifts, in the manner described in subparagraph two of paragraph (a) of section 3-2.1 of the estates, powers and trusts law . The person who takes the acknowledgment, under this paragraph, may also serve as one of the witnesses.

(c) Be accompanied by a statutory short form power of attorney in which the authority (SGR) is initialed by the principal.

(d) Be executed simultaneously with the statutory short form power of attorney and in the manner provided in this section.

10. The use of the following shall be construed as the “Statutory Gifts Rider” for a statutory short form power of attorney:

“POWER OF ATTORNEY

NEW YORK STATUTORY GIFTS RIDER

AUTHORIZATION

FOR CERTAIN GIFT TRANSACTIONS

CAUTION TO THE PRINCIPAL:  This OPTIONAL rider allows you to authorize your agent to make gifts in excess of an annual total of $500 for all gifts described in (I) of the Grant of Authority section of the statutory short form Power of Attorney (under personal and family maintenance), or certain other gift transactions during your lifetime.  You do not have to execute this rider if you only want your agent to make gifts described in (I) of the Grant of Authority section of the statutory short form Power of Attorney and you initialed “(I)” on that section of that form.  Granting any of the following authority to your agent gives your agent the authority to take actions which could significantly reduce your property or change how your property is distributed at your death.  “Certain gift transactions” are described in section 5-1514 of the General Obligations Law .  This Gifts Rider does not require your agent to exercise granted authority, but when he or she exercises this authority, he or she must act according to any instructions you provide, or otherwise in your best interest.

This Gifts Rider and the Power of Attorney it supplements must be read together as a single instrument.

Before signing this document authorizing your agent to make gifts, you should seek legal advice to ensure that your intentions are clearly and properly expressed.

(a) GRANT OF LIMITED AUTHORITY TO MAKE GIFTS

Granting gifting authority to your agent gives your agent the authority to take actions which could significantly reduce your property.

If you wish to allow your agent to make gifts to himself or herself, you must separately grant that authority in subdivision (c) below.

To grant your agent the gifting authority provided below, initial the bracket to the left of the authority.

( ) I grant authority to my agent to make gifts to my spouse, children and more remote descendants, and parents, not to exceed, for each donee, the annual federal gift tax exclusion amount pursuant to the Internal Revenue Code.  For gifts to my children and more remote descendants, and parents, the maximum amount of the gift to each donee shall not exceed twice the gift tax exclusion amount, if my spouse agrees to split gift treatment pursuant to the Internal Revenue Code.

This authority must be exercised pursuant to my instructions, or otherwise for purposes which the agent reasonably deems to be in my best interest.

(b) MODIFICATIONS:

Use this section if you wish to authorize gifts in amounts smaller than the gift tax exclusion amount, in amounts in excess of the gift tax exclusion amount, gifts to other beneficiaries, or other gift transactions.

Granting such authority to your agent gives your agent the authority to take actions which could significantly reduce your property and/or change how your property is distributed at your death.  If you wish to authorize your agent to make gifts to himself or herself, you must separately grant that authority in subdivision (c) below.

( ) I grant the following authority to my agent to make gifts pursuant to my instructions, or otherwise for purposes which the agent reasonably deems to be in my best interest:

(c) GRANT OF SPECIFIC AUTHORITY FOR AN AGENT TO MAKE GIFTS TO HIMSELF OR HERSELF:  (OPTIONAL)

If you wish to authorize your agent to make gifts to himself or herself, you must grant that authority in this section, indicating to which agent(s) the authorization is granted, and any limitations and guidelines.

( ) I grant specific authority for the following agent(s) to make the following gifts to himself or herself:

This authority must be exercised pursuant to my instructions, or otherwise for purposes which the agent reasonably deems to be in my best interest.

(d) ACCEPTANCE BY THIRD PARTIES:  I agree to indemnify the third party for any claims that may arise against the third party because of reliance on this Statutory Gifts Rider.

(e) SIGNATURE OF PRINCIPAL AND ACKNOWLEDGMENT:

In Witness Whereof I have hereunto signed my name on ․․․․․․․․․․․․․․․․․, 20․․․․.

PRINCIPAL signs here:

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(acknowledgment)

(f) SIGNATURES OF WITNESSES:

By signing as a witness, I acknowledge that the principal signed the Statutory Gifts Rider in my presence and the presence of the other witness, or that the principal acknowledged to me that the principal's signature was affixed by him or her or at his or her direction.  I also acknowledge that the principal has stated that this Statutory Gifts Rider reflects his or her wishes and that he or she has signed it voluntarily.  I am not named herein as a permissible recipient of gifts.

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Signature of witness 1

Signature of witness 2

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(g) This document prepared by:  ․․․․․․․․․․․․․․․․․․․․․․․․․”

1 26 USCA § 1 et seq.




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