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Thursday, January 26, 2017

Are you at risk to have your Will invalidated?

A Will execution has many formalities - ensure that your attorney actually knows them!

Most people think that writing and signing a Will is easy. I often hear from friends "Any attorney can do it", or better yet "It's so easy, I don't need an attorney, I will do it myself".

Well, do so at your own peril. Remember that the content of your Will is only half of the calculation for getting a Will probated, since Wills can and often do get invalidated based on improper execution, particularly when the Will is executed without an attorney being present. The latest case in point: Matter of Costello, 136 A.


Read more . . .


Friday, July 15, 2016

Rich and Famous Planning: Lessons learned from Prince’s mistake


As most people by now know, the artist Prince died without a Will. The family is now set up for tens of thousands in legal costs and years of delay before the money gets distributed.

When a person dies without a Will, regardless of the size of his estate, numerous problems come up. These include:

  1. Executor. The person who will be named in charge of your estate may not be the person that you would have liked.


Read more . . .


Tuesday, June 21, 2016

Rich and Famous Planning: B.B. King’s Estate – 15 children, a few million dollar and legal battles for many years to come


B.B. King acknowledged 15 children from 15 different women during his life. 11 of the children survived him. Yet the executor of B.
Read more . . .


Sunday, January 17, 2016

Can Court Reform a Will When the Attorney Made a Drafting Mistake?

In a recent New York case, a Will provided for disposition of 2/3 of the property (leaving property to decedent’s siblings, nieces and nephews) and was silent about the disposition of the remaining 1/3. In re Isasi-Diaz, NYLJ, Mar. 28, 2014, p. 35 (Sur. Ct., N.Y.Co.) (Mella, S.)  The attorney-draftsman provided an affidavit to the court, explaining that he made a mistake, that the decedent provided him with instructions about the disposition of her entire estate, but he made an error while drafting the Will.

The court denied the petition for reformation. The court reviewed the express language of the Will. The court also relied on the well-established New York rule that extrinsic evidence will not be admissible to contradict the unambiguous expressions of the decedent. As a result, since the Will was unambiguous about disposing only a portion of the estate, the court ruled that it could not rewrite the Will based on extrinsic evidence.

The takeaway: please review your documents prior to signing them. Attorneys are human and make mistakes. You should always request to review your documents prior to signing and actually spend the time reading them to ensure that they reflect your wishes. Do not be afraid to change or add things, since this is your document! Do not be afraid to ask questions!

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING


Friday, November 13, 2015

Accident Liens – can Medicaid recover from personal injury or malpractice award?

It may come as an unwelcome shock to many personal injury plaintiffs, but Medicaid is entitled to recover medical expenses paid on behalf of an individual, from the proceeds of a personal injury or a malpractice action.

The entire award is subject to Medicaid recovery: there is no distinction between pain and suffering and medical expenses, both portions of the award are subject to Medicaid liens. Unlike estate claims, there is no limitation on the age of the recipient for Medicaid to impose its lien.

Limitations

The lien is limited to Medicaid payments made after the date the injuries were sustained. The lien is also limited to those Medicaid payments made for the treatment of injuries sustained. The rationale is that Medicaid is not entitled to recover for Medicaid properly paid (other than from estate claims).

One final limitation is that Medicaid is not entitled to a recovery when the claim is against a nursing home based on negligence or abuse of a Medicaid patient.

Legal Fees

Medicaid lien has the priority over all other liens, with the exception of the attorney fee for representing the injured party in an action to recover for the injuries in the accident. However, the attorney is not entitled to a fee from the proceeds being paid to Medicaid.

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Friday, September 25, 2015

Can you have a Digital Will in New York?

In a recent Australian case, Re Yu [2013] QSC 322, a digital Will was admitted to probate. Mr. Karter Yu, prior to committing suicide, drafted several documents on his I-phone, saying farewell to his family and friends. One of these documents was his stated Will, appointing his brother as an Executor. The court, after pain-staking analysis, admitted this electronic document to Probate. The court did this despite the fact that the legal requirements of the execution were not met.

In New York, which is very strict about observing all legal formalities, this bending of the rules would not have been permitted and Mr. Yu would have been considered to have died “intestate” – without a Will. There are several requirements for a Will to be valid in New York:

  1. A Will must be in writing

  2. A Will must be signed at the end by the Testator

  3. The Testator must sign the Will in the presence of at least two Witnesses

  4. The Testator must declare to the Witnesses that the document that he is about to sign is his Willwhile

  5. The two witnesses must attest to the Testator’s signature and must sign the document themselves.

The only exceptions that are permitted to the punctilious execution of these formalities are for members of the armed forces of the United States while in the actual military or naval service during a war or other armed conflict, a person who serves with or accompanies an armed force engaged in actual military or naval service during a war, or a mariner while at sea. Upon an expiration of one year from a discharge from armed forces, or upon an expiration of three years from the time the mariner returned from the sea, such a Will becomes invalid.

As a result, if one wants to have a proper Will in New York State, ALL legal requirements as stated above must be observed.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Thursday, September 17, 2015

California Lawmakers resurrect the Right-To-Die Bill

The bill would allow doctors to prescribe lethal medication to terminally ill patients. The bill already passed the State Senate in June, but faced strong opposition in the Assembly, due to a large number of Catholic legislators.

The legislation was inspired by Brittany Maynard, who, after being diagnosed with terminal brain cancer, moved to Oregon in order to have an option to end her own life in a dignified manner. Before she died, Maynard left a video asking the California lawmakers to amend the state laws to allow others to have the same dignity.

The bill has support of nearly 70% of state residents. The bill contains a lot of regulations to protect against fraudulent prescription of lethal medicine and it does not allow the patients to end their own life (the doctor has to administer the medication).

Currently, 4 states in the country have laws permitting a legal method of ending one’s life. New York State Senator Diane Savino introduced a Death with Dignity bill in Albany in February 2015. The bill would permit prescription of lethal medication to terminally ill patients. Terminally ill is defined as an incurable illness that is expected to result in death within 6 months.  The bill is currently being discussed in the State Senate.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Tuesday, August 25, 2015

Heirs may not get to keep the money that factory owner earned through illegal activities.

When Arthur Mondella committed suicide in February 2015, he thought that his three daughters and his sister will inherit his $8MM fortune. Mr. Mondella committed suicide when his illegal marijuana growing business was discovered under the floor of his maraschino cherry factory. The factory was started by his grandfather and father in 1948, and the business appears to be legitimate. However, at this point, given how hard it is to tell which of the assets that he owned were from legal activities and which were from illegal ones, the amount that Mr. Mondella’s family will receive remains in doubt.

Under the civil forfeiture proceeding, the District Attorney office may seek forfeiture of funds obtained through criminal acts. The heirs cannot claim an “innocent owner” defense, because at the time the criminal acts were committed, they were not the owners of the factory.

The rules governing the civil forfeiture are arcane – the statute was adopted in 1881 and has not been updated since. The rationale for the statute is to seize money obtained illegally and to fund the NYPD to enable it to continue fighting the crime. However, it is very difficult to determine what amount of money was obtained illegally and what amount was earned through legitimate work. The incentive for the city, of course, is to claim that the largest amount of money possible came from illegal profits. Last year, NYC was projected to receive $5.3MM through civil forfeiture. The addition of $8MM from Mr. Mondella’s estate would be a nice increase to the NYC’s budget.

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Tuesday, May 19, 2015

What happens when a Will is lost? A case illustrates a need for properly storing your documents!

A New York case, the Matter of the Estate of Robyn R. Lewis, is going up in front of New York Court of Appeals now, to decide a case of a missing Will.

Robyn Lewis executed a Will in Texas in favor of her husband; the Will also provided that if the husband predeceased her, her father-in-law would be the executor and sole heir. Later, the couple divorced. As a result of the divorce, under New York law, the husband was effectively disinherited, but the ex-father-in-law was not.

Later, Ms. Lewis executed another Will, leaving everything to her two brothers. She gave this second Will to her neighbor for safe keeping. When she died, the brothers, who were not aware of the new Will, applied for and received Letters of Administration (if there is no Will, then the law determines who gets the assets). Later, however, the ex-husband found out that Ms. Lewis was dead, and his father applied for the Letters Testamentary, on the basis of the original Will. Unfortunately, the neighbor lost the second Will given to him for safekeeping.

The Surrogate revoked the Letters of Administration granted to the brothers and admitted the earlier Will to probate. It is very unlikely that Ms. Lewis would have wanted her ex father-in-law to receive her family house! The brothers, of course, have appealed. Given that this is a modest $200,000 estate, by the time this litigation is finished, the majority of the estate may be consumed by the legal costs!

Lesson to everyone: be careful how you store your estate planning documents. Make a copy or two (but do not unstaple the original!)  Keep the original (either in your home, safe deposit box, or give it to the drafting attorney) and give a copy to your family.

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

 


Friday, April 24, 2015

Can Wills be challenged? Absolutely! A disowned daughter and an almost-disowned son prove that it is possible to do so even when the grounds for the challenge are legally dubious!

A lot of people think that if a Will was executed under a supervision of an attorney, then the Will is a rock solid instrument that cannot be challenged. However, that is not a case. A Will can be challenged on many grounds (incapacity, coercion, fraud, forgery and improper execution are some of the common ones).

A Brooklyn father executed a Will explicitly disowning his daughter, while leaving his son $500 a week for life, with the remainder of his $8MM fortune going to an animal charity. Both children have successfully challenged the Will. The case never got to trial. A psychiatrist that the daughter hired diagnosed her father (post mortem) with a diagnosis similar to narcissistic personality disorder. After the diagnosis became public, the interested parties negotiated a settlement, where the charity got less than 50% of the initial amount, while the daughter, the uncle and the son each got a significant amount of money.

Should a Will be challenged? There is no right answer to this question. Legal grounds, family harmony, amount of money at stake and specific language in the Will all need to be considered prior to any legal challenge being raised. It helps to talk to an experienced attorney to evaluate your options.

The information in this blog was adapted from

http://www.dnainfo.com/new-york/20150305/new-york-city/owner-of-brooklyn-hardware-store-hid-tens-of-millions-of-dollars-son-says

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Tuesday, April 7, 2015

The importance of Using the Proper Language When Setting up a Special Needs Trust

In a recent New York case, In re Paradiso, the court did not reform a father’s will which left money in a trust to a disabled daughter. In the Will, the father attempted to create a testamentary special needs trust, which would not have jeopardized the daughter’s government benefits (Medicaid and SSI). However, the language that was used to create a trust was not the statutory language!

There is a statute, EPTL 7-1.12, which requires that the supplemental needs trust language must clearly show that the intent of the deceased was “to supplement, not supplant, impair or diminish, government benefits”. If there is no such precise language, the intent of the testator is not clear, and the Trust will not be considered a Special Needs Trust.

As a result, the father’s money went in a regular Trust to a disabled daughter. Since the government will consider this money available to her, she is likely to lose her government benefits. These benefits can range from housing assistance and vocational training to home care and a stipend for basic food needs. 

This result could have been avoided by talking to a special needs attorney, who would have drafted a proper testamentary Special Needs Trust.  

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


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