The KM Law Blog

Advanced Directives

Wed, 08 May 2024 15:09:22 GMT

What are advanced directives?

They are written legal documents that explain a person’s wishes about how they want medical decisions to be made when they are no longer able to speak for themselves. This can happen when they are terminally ill, in a coma, badly injured, or in later stages of dementia. Some of these situations are unexpected therefore everyone over the age of 18 should think about having advanced directives. Thanks to planning ahead you would be able to receive the care you want and also make it easier for your relatives in case of dispute.

Examples of advanced directives are:

Living will – it states what treatment you want and do not want to receive in order to keep you alive along with decisions on treatments, pain management or organ donations. It may include matters like tube feeding, resuscitation (CPR), mechanical ventilation, palliative care and other necessary medical care.

Healthcare proxy – it designates another person (usually a family member) to make medical decisions on your behalf if you become unable to do so. It is important to designate someone to be able to make decisions for you even if you have other legal instruments regarding end-of-life care since there are things that cannot be foreseen and therefore your proxy will be able to make decisions for you. It should be someone you can trust, and you can discuss medical care wishes with.

Can you create these documents on your own?

Yes, but it is always better to have legal assistance from an attorney in creating these documents. An attorney licensed to practice law can provide you with the most up-to-date versions of these documents. At Maguire Tedrick, PLLC, our attorneys take the time to listen to you and your family to help draft the document that best protects your interests.

Contesting the Will

Fri, 19 Jan 2024 14:42:54 GMT

You might be wondering what happens if, after your passing, someone wants to contest your will. Let’s take a look at this matter.

A will is a legal document that takes effect after person’s death. It is then submitted to the Surrogate’s Court to be determined if the will is valid (this process is called probate). If Court decides that the will is authentic and valid, then the terms of the document take effect. But before the will can be admitted to probate (which means that it is determined as valid) it could be contested.

The only people who can contest a will are the ones who would be adversely affected by the admission of the will to probate.

What grounds can someone contest the will on?

Contesting the will means formally objecting to the validity of a will. There are four main grounds for will contest:

1. Improper execution/Revocation

A will must be properly executed and then correctly maintained in accordance with New York laws in order to pass any objections. Additionally, a person may object to the probate of a will if the deceased individual had revoked the will prior to their death.

2. Lack of mental capacity at the time of signing

To have a testamentary capacity a testator should have an understanding of his/her assets, family members and beneficiaries and what he or she is signing. If it appears that at the time of signing the testator lacked the capacity to sign a will it might become a ground for a will contest.

3. Fraud

If a will is suspected to be created or signed as a result of fraud it might be a reason for will contest. It could be hard to prove because there are usually no witnesses to the fraud that affected the testator’s decisions.

4. Undue influence

If the testator was unduly influenced at the time of signing or executing the will the document is invalid and it could be a ground for will contest. It could mean that the person creating the will distributed his or her property against their wishes based on influence of another person. The influence must have been strong enough to restrain a person’s free will and independence in creating and executing the will.

How do you contest a will?

The testator’s heirs, beneficiaries and other interested parties receive a notice of probate from the attorney that files the probate petition. Alternatively, an executor may ask them to sign a waiver to allow the estate to go into probate.

You need to submit a claim to the probate court. An experienced attorney can help you with the required paperwork and prepare you for possible hearings, as well as prevent any attack on a properly executed will. You can contact Kate Maguire Tedrick to assist you with this process.

Sibling Rivalry v. Estate Planning

Fri, 03 Nov 2023 15:05:08 GMT

Loving parents will always have their children’s best interest at heart. Unfortunately, it is an often occurrence that siblings do not see eye to eye when comes to care for their elderly parents or distribution of their property upon death. Careful estate planning may give you some peace of mind when comes to sibling rivalry and potential conflict that your passing may create.

Let’s see what are the ways that you can try to make sure that your children understand your wishes and to minimize potential conflict in the future.

As you get older:

1. Power of Attorney

a. You assign the person who will be able to make financial decisions when you are not able to do so. Having this document in place prevents siblings from fighting over the decisions being made since there is usually one person responsible.

b. You can assign two individuals with power of attorney, or you can elect to have one individual be power of attorney, and another be listed as monitor, so they can monitor the activity conducted by your power of attorney.

2. Healthcare proxy

a. This document designates a person to make medical decisions on your behalf (when you become unable to do it yourself). Similarly to Power of Attorney, healthcare proxy allows the person assigned to be responsible for decision making, thus it prevents multiple people from fighting over a decision to be made (which may require prompt actions).

3. Living will

a. The document states your choices regarding treatments you receive in order to keep you alive. These decisions are very painful to make and having your wishes clearly stated resolves a lot of problems that could arise during a difficult time.

Upon your death:

1. Last Will and Testament

a. This is the first document that comes to mind, for good reasons. Clearly stating your wishes regarding distribution of your estate, as well as other wishes like your funeral arrangements, guardian for your minor children or setting up a trust, is definitely very helpful for the family members during the difficult time of their loved one’s passing.

b. If you are single when you pass away and do not have a will, New York State law requires your property to be split evenly among your children. Even if this is how you wish your property to be transferred, you should still have a will which nominates one or more of your children to act as executor of the estate, which means that your children will have one less decision to make in terms of who has to administer the estate upon your passing.

c. Equal distribution among siblings is not necessarily what would be considered “fair.” For example, the child that received tuition money from you or that you helped with their mortgage downpayment, may receive less than the siblings who did not get this type of help from you. Alternatively, one of your children may have special needs child themselves may receive more of your estate due to the specific needs family needs. Discussing such issues with your children may put the siblings at ease and make them understand your decisions better.

2. Trust

a. There are various types of trusts (see more here LINK) and they are a great way to distribute parts of your estate, depending on your individual needs. They can be beneficial when you want the recipient of your property to receive it in installments or upon fulfillment of a specific requirement (ex. age, college graduation). Trusts also avoid probate, which can take months if not years to go through the Court system.

Contact an experienced attorney to discuss your needs and draft the documents that will give you a peace of mind and will assure you that you minimize conflict between your children in the future.

Identity theft

Wed, 11 Oct 2023 15:01:41 GMT

Identity theft can be described as an unauthorized use of another person’s private identifying information (usually for purposes of financial profit). A situation in which a senior is a victim of identity theft is considered elder abuse in New York.

The elderly are particularly vulnerable to identity theft, due to the fact that they are often believed to have accumulated substantial amount of assets and may be less tech savvy to check their accounts for possible fraud or to recognize scams. Their personal identification information (like name, Social Security Number, ID/driver’s license number, credit card information and others) could be stolen and used to commit fraud.

There are different ways in which the seniors can fall victim to identify theft:

1. Hospital/nursing home: seniors may be “easy victims” to be take advantage of by caretakers who have access to their documents and belongings

2. Email/social media scams: seniors could not see the risk of opening suspicious emails, clicking on links or providing their personal information to scammers

3. Mail/documents: thrown out mail or documents might contain personal information that can be stolen by someone searching in garbage cans

4. Phone: this could be either the “grandchild scam” or other types of calls where someone says that they are calling from the bank, the insurance company, the doctor’s office etc. and unlawfully obtains personal information of the scam’s victim

5. Theft of physical item (wallet with documents, Social Security Cards, credit cards)

You can inform and prepare your elderly loved ones about most types of identity theft scams so they can be more alert and less likely to fall victim to these types of situations. It is important to alert them about suspicious mail, links and invites on social media. You can help them check their accounts from time to time to monitor any suspicious activity and make sure that they have their documents in a safe place.

Filial responsibility

Wed, 13 Sep 2023 13:38:17 GMT

Filial responsibility is a legal concept of an adult child being responsible to support their parents, if they cannot do that themselves. The support could be anything from food, shelter and other basic needs to various medical bills.

The part that may be overwhelming is the financial responsibility for parents’ healthcare bills. Some of them may be a simple medicine prescription or a copayment at the doctor’s office, but many times the costs could be enormous – for example for a nursing home stay. If the person has financial means and their parent has unpaid medical care bills (and is not covered by Medicaid) then they might be responsible for taking care of these costs. The extent of responsibility will depend on specific state’s law and the individual situation, but it is something to be aware of if you live or plan to move to a state where these laws are enforced.

29 of the 50 states have filial responsibility laws:

• Alaska

• Arkansas

• California

• Connecticut

• Delaware

• Georgia

• Idaho

• Indiana

• Iowa

• Kentucky

• Louisiana

• Massachusetts

• Mississippi

• Montana

• Nevada

• New Hampshire

• New Jersey

• North Carolina

• North Dakota

• Ohio

• Oregon

• Pennsylvania

• Rhode Island

• South Dakota

• Tennessee

• Utah

• Vermont

• Virginia

• West Virginia

The laws in different states vary too so it is crucial to learn if a specific guideline applies to your situation. Although New York State does not have the filial responsibility law, it is very interesting to know, especially given the fact that many people move or have family members in other states.

Most common factors in determining the application of the filial responsibility laws to an individual’s situation are:

1. The financial situation of the parent

2. Whether the parents qualify for Medicaid

3. Whether there are healthcare costs that the parent cannot pay

4. The adult child’s financial situation (the ability to pay these costs)

How exactly does this responsibility apply to an individual? The healthcare providers can sue the adult child in order to recover the costs incurred by the parent. Failure to comply may result in garnishment actions, bank account seizures or liens.

If you have elder parents and are located in one of the above-mentioned states, you may want to learn more about the filial responsibility to avoid issues in the future.

Estate Planning Myths and Errors

Wed, 06 Sep 2023 19:42:07 GMT

It is often believed that estate planning is not for everyone, that only the rich people and the elderly would benefit from it and actually need it. It could not be further from the truth. Check out the common myths and errors of estate planning and see for yourself that it – literally – is for everyone.

1. Estate Planning is only for the rich

It may be because of some well-known estate disputes and stories of the rich and famous, that make people believe that estate planning is only a concern for those who have accumulated a substantial amount of assets. It is not true. As long as you have any assets, you and your family would benefit from proper estate planning. Some of the aspects of estate plan do not even concern money and tangible assets but are about decision-making process, health, death and funeral and so on. You do not have to be very rich to want to protect yourself, your family, and your life estate.

2. Estate Planning is for seniors only

Some may believe that estate planning is for those who are older and plan for their passing only. This is also not true as it is never too early to start planning and protecting your assets. Some aspects of estate plan are about the age and death (last will and testament, funeral arrangements, Medicaid planning), but there is more to it. There are unexpected events in life, and it is always best to be prepared and protected. You may want to think about your assets, about your minor children, about possible conflicts in the family upon your passing, even about what happens to your pet.

3. An estate plan only concerns property

While a big part of the estate planning is about distribution of your assets (real estate, money, family heirlooms etc.) upon death, there are other aspects to be considered. Some documents (for example the advanced directives) are about assigning someone you trust to make decisions (whether financial or medical) on your behalf when you are not capable to do so. Estate planning may also include appointing guardians for minor children (usually in the will), or even creating a pet trust.

4. You only need to draft your will

Most people are familiar with the concept of the Last Will and Testament, but estate planning involves more documents than just the will. There are different types of trusts, advanced directives, business succession planning, Medicaid planning, tax issues, and many more aspects to be considered, depending on everyone’s individual situation.

5. You only need to draft your documents once

While your initial estate plan could cover most of the things you want to be taken care of, a proper estate plan should be revisited and revised as many times as needed. If you get married or divorced, you welcome a new child in the family (also by adoption), you lose a family member, you start making more money, open a business, acquire new property or make any other substantial change to your assets, you should meet your attorney and see what changes have to be made in your documents to address your new situation.

Famous Estate Disputes

Wed, 19 Jul 2023 15:47:23 GMT

Everybody should have an estate plan in place, but it’s also important to have it updated every few years and revisited in case of major life events like birth or death in the family, change of marital status or the sale/purchase of assets. The stories below are cautionary tales for why you should plan ahead:

Michael Jackson

Jackson died in 2009, leaving behind three minor children. His will was signed in 2002 and was rather short, considering the size of his estate. This was because of how the estate was arranged – it was trust-based, as opposed to a will-based estate. He had a trust agreement called The Michael Jackson Family Trust Agreement, signed in 2002, that stated his wishes regarding the distribution of his estate. The estate continues to earn money for Jackson’s beneficiaries, and in 2016 Jackson’s estate earned a staggering $825 million, which included the sale of Jackson’s share of Sony/ATV music catalogue for $750 million.

Whitney Houston

When Whitney Houston died in 2012 she left a will that named her only child, a 19-year-old Bobbi Kristina Brown, as her sole beneficiary. The terms of her last will stated that her estate was to be paid to her daughter in installments. In case of Bobbi’s death, if she did not leave a spouse or children behind, Houston’s estate was to be distributed between her living relatives. Whitney’s will also listed her husband, Bobbi’s father, but due to their divorce in 2007 he couldn’t claim the estate. Bobbi passed away in 2015, leaving no will, which entitled her father to claim some of her estate. There are two lessons in this story: even young people should have their wishes written down and every estate planning document should be regularly updated, reflecting major life events.

John Seward Johnson I

The Johnson & Johnson heir married his third wife, Barbara Piasecka, in 1971, at the age of 76. She was initially hired by his then wife as a maid and was 42 years younger than Johnson. The age difference was controversial enough, but the real battle started when Johnson died in 1983. His estate was estimated to be worth approximately $500 million dollars at the time. The legal dispute involved his six children and his wife, Barbara. Johnson’s kids accused Barbara of abuse and manipulation, that caused their father to change his will in her favor. The battle ended up in settlement, that let her keep most of her late husband’s fortune (that included a New Jersey estate Jasna Polana, that is now a country club, the shares in Johnson & Johnson company, worth $18 million and Johnson’s art collection). It is important to remember in New York State you cannot disinherit your spouse entirely, as your spouse is entitled to 1/3 of your estate, at the very least. Thus estate planning is something to consider before entering into a marriage late in life.

These stories are obviously about very rich and famous but could be used as examples of poor estate planning (or lack thereof) that leads to lengthy court battles and family disputes. It is never too early (or too late) to start estate planning, that can give you peace of mind and secure your assets for the future. It is also important to update your estate plans regularly and make them as detailed as possible to avoid future disputes. Contact Kate Maguire Tedrick to schedule a consultation regarding your estate.

The Grandchild Scam—Don’t Become a Victim!

Thu, 15 Jun 2023 13:55:11 GMT

Have you ever heard a story of someone being scammed by another person pretending to be their grandchild (or other relative)? These situations happen more often than we think. It is good to be aware of the most common scams and to inform your loved ones about the risks and how to avoid getting scammed.

The scenario in these cases can look like this:

1. A person gets a call from someone impersonating their relative (most commonly the grandchild)

2. The “grandchild” seems to be in distress, mentions that they are in trouble (health issue, accident, jail), often in a foreign country

3. They insists that no one else is contacted regarding this issue (so they cannot be potentially verified), and that it is urgent

4. They ask for money to be used to cover medical bills, post bail, pay for a flight home, etc. (usually through a wire transfer)

People who impersonate others for financial gain are usually very convincing and do their research before they call, so they might know some details about your relative and may sound just like them. It is very important to verify callers’ identity (for example through other family members or by asking specific questions) before making any payments or transfers.

A good tip to prevent such a scam is to discuss a “secret” phrase with your grandchildren. It can be as simple as a song lyric, like “The sun will come out tomorrow” or your favorite restaurant, or a movie quote. When the call comes, you can ask the caller what your phrase is. If they do not know what you are talking about, or answer wrong, hang up and rest easy that you did not get defrauded!

What invalidates a will?

Fri, 21 Apr 2023 19:28:32 GMT

What can make your will invalid or less effective?

1. Not having proper witnesses

When you sign a will, you need to have two witnesses. They have to be over 18 years old and must see you sign your will. They also have to sign the document.

2. Creating a holographic will

In New York State a holographic will (handwritten with no witnesses) is only legal when created by members of armed forces at the time of an armed conflict. In other cases it won’t be recognized by law.

3. Lack of testamentary capacity

You need to have mental capacity to understand what decisions you are making

4. Fraud and/or undue influence

Your will may be deemed invalid if it is proven that you were forced to sign it or make certain provisions, that someone else signed your will, that you were tricked into signing it and other cases that you can read about here (link)

The best way to make sure your will is valid, and all state requirements are met is to work with an attorney who can guide you through the process. Contact Kate Maguire Tedrick to schedule a consultation.

Updating your estate plan

Thu, 06 Apr 2023 19:15:02 GMT

The estate plan you make is based on the your stage of life and the relationships you have at the time of creation. The major events that should make you want to revisit your plans are life events like marriage (or divorce), death of a family member or birth of a new family member. In these situations, it is very important to update your estate plan as soon as possible due to new possible beneficiaries that could be added. Although, these are not the only events that could affect your estate planning. Some others may include:

• Change in your professional life – for example retiring from work or getting a new job that changes your economic situation.

• Change of the state of your health (you might be considering long-term care for yourself).

• Change of laws/taxes affecting your situation.

• Purchase or sale of assets.

It is recommended to revisit your estate plan periodically and in case of major life changes to give yourself peace of mind. If you need help with creating or updating your plan, contact Kate Maguire Tedrick to discuss your situation.

Famous Estate Disputes

Thu, 02 Mar 2023 17:30:15 GMT

Jimi Hendrix

The guitarist died at 27 and left no will. The family dispute over his assets lasted over three decades! His estate was first managed by an attorney and later Hendrix’s father gained rights to Jimi’s music. He managed to raise the value of the estate by setting up trusts and partnerships, and after his death his adopted daughter received most of the estate. Jimi’s biological brother, as well as other potential beneficiaries to the will, contested Jimi’s father’s will to gain access to parts of Jimi’s estate.

Prince

Upon his death there was no estate plan in place, no will, no spouse, children or surviving parents. According to state’s law in Minnesota his estate was to be split between his siblings. It was known that Prince kept his personal life rather private and did not trust managers and lawyers, but due to lack of will his estate had to go through probate, which means it was a center of a long public process. Finally, the settlement took place in January of 2022, leaving his assets to Primary Wave (a New York music company) and three of his half-siblings.

Anna Nicole Smith

Anna Nicole Smith was a model, who at 26 years old married 89 year old billionaire James Howard Marshall II. He passed away 14 months after they got married and left most of his $1.6 billion estate to his son, Pierce. Anna Nicole Smith contested the will, claiming that her husband was going to change the will and that he promised her half of his estate. Marshall’s other son, Howard III, also challenged the will and the court battle between his wife and both sons lasted for over two decades. Initially a probate court in Texas ruled in favor of Pierce, while Anna filed for bankruptcy in California. She was eventually awarded $474 million followed by an appeal and a battle of courts’ jurisdictions in this case. Both Anna and Pierce died while the case was still open as the battle was continued by Pierce’s wife and Anna’s executor. The case was so lengthy and complicated that the assigned judge asked to be recused from it.

While most of us don’t have this level of assets at death, battles between family members can occur over much less significant amounts, and cause equal amounts of heartache. Contact Kate Maguire Tedrick to discuss estate planning today.

Showing love through estate planning

Tue, 14 Feb 2023 15:07:10 GMT

On Valentine’s Day we can’t help but think how we can show our loved ones how much we care about them. A detailed and thorough estate plan may actually be the best gift of all. A peace of mind when it comes to your own family, your asset protection and your heritage can mean much more than any tangible gifts. Having a plan in place will benefit you and those who you leave behind.

The most straightforward part of your estate plan is your will. It can be as simple as leaving everything you own to your spouse (or children) and that alone is a sign of love and care. The more detailed your will is the easier it will be for your loved ones to deal with your estate after your passing. You can also set up a trust to protect your assets and secure your loved ones financially. A will can also name a guardian for your minor children.

There could be time when you are not able to make decisions regarding your health or finances on your own. For that you would need a trusted person (or a few people) who, by a Healthcare Proxy and/or a Power of Attorney, could step in and decide for you. These documents, called collectively Advanced Directives, can ease the burden of a health scare or another situation in which you cannot communicate your needs or wishes. Talking about these things in advance and picking someone who you trust and know that they will act in your best interest, can bring you a peace of mind and make it easier for your family.

When it comes to health and getting older, you may need to plan in advance in order to be able to receive Medicaid benefits. That could also be a part of your estate planning. With your assets in order (for example through a trust or a gift) you may be able to secure resources to receive care without being a burden on your family.

It is always better to be safe than sorry. If you want to discuss your situation and find a plan catered to your needs, contact Kate Maguire Tedrick to schedule an appointment.

Estate Planning for Blended Families

Wed, 08 Feb 2023 19:12:35 GMT

If you have a blended family (you and your spouse have children from previous relationships/marriages), it is especially important to take care of estate planning, as things can get complicated. You might need to take a look at your past financial and legal decisions, make necessary changes and update your documents.

There are a few things you need to consider:

1. Creating or updating your will: Did you know that your stepchildren are not entitled to inherit anything if you pass away without a will?

a. You should consider if you want to treat all children equally or leave most of your estate to your own kids. Stating your wishes as clear as possible will make it easier for your family to deal with your estate after your passing. In case of blended families, you should write down how you want to distribute sentimental family items (like jewelry, albums, family heirlooms etc.) since you might want to leave them to your biological children.

b. If you children are minors, choosing a guardian (in case of your passing) for each child is necessary, and will require discussions with your child’s other biological parent as well (if they are living).

2. Checking your beneficiaries – 401(k), insurance policy, bank accounts, retirement accounts etc. - you may be surprised to find out that your previous spouse is still listed as a beneficiary.

3. Putting some of your assets in a trust so you do not have to worry about your surviving spouse distributing your estate differently than you want.

4. Healthy care proxies and advanced directives: who do you want to make decisions on your behalf if you are unable to do so? Navigating this question while you are capable of making such decisions before the need arises helps for a better standard of care when the time comes.

Estate planning for your blended family can feel overwhelming but can be easily navigated with an experienced attorney. Contact Kate Maguire Tedrick to schedule a consultation.

Irrevocable trust

Fri, 13 Jan 2023 17:51:07 GMT

An irrevocable trust is a type of trust in which the grantor transfers ownership of his or her assets into the trust, and is no longer legally the owner of the asset(s) in question. In other words – a grantor gives up control of his or her assets put in the trust. These assets can include a business, real estate, cash, investments, life insurance.

Irrevocable trusts are usually set up to qualify someone for Medicaid benefits, protect assets from being misused, and are managed by trustees selected by the creator of the trust. In order for an irrevocable trust to qualify as a shielded asset for the purposes of Medicaid benefits, the creator (called the grantee), must not be one of the beneficiaries of the trust. In other words, by making an irrevocable trust, the creator of the trust has given a gift that cannot be rescinded or used for the benefit of the creator.

The most common asset to place in an irrevocable trust is a home. Typically, the creator of the trust retains a right to use the house for the rest of their lives (called a life estate) and transfers the house itself into the trust.

Our office is equipped with the knowledge to help you decide what trust is right for you. For more information contact us.

Pet Trust

Thu, 15 Dec 2022 19:01:57 GMT

Have you ever been wondering what happens to your pet after you pass away? In New York you can set up a trust for your dog, cat or any other pets (remember some species of birds have an average life expectancy of up to 60 years).

The pet trust can be created during your lifetime or as a testamentary trust, established by your will or trust. Just like with any other trust, there is a trustee to manage the funds from the trust. The entire value of the trust is to be used to care for named pet(s) and should not be used otherwise. You cannot leave money directly to your pet in a will or trust, but must place it in a trust.

The trust gives protection over the entire lifespan of your pet, it terminates when the named pet dies. If there are any funds left after pet’s passing, then they are going to be transferred to beneficiaries according to your wishes. The pet trust gives you a peace of mind and certainty that your beloved animals will be properly taken care of after your passing.

Leaving unequal inheritance for your children

Tue, 22 Nov 2022 21:38:49 GMT

It is common for a parent to leave equal inheritances for their children, although it isn’t always the case. Everyone’s version of “fair” or “right” for their family is different.

Some situations that could affect that decision may include:

• Only one/some children are taking care of the parent in need;

• Some of the children already got help/assets from parents during their lifetime while others did not;

• Some of the children have better financial situation than other hence parents would feel a need to leave more to those who are in need;

• A child does not treat their parent well/does not stay in touch;

• There is a child with special needs.

The best way to tackle this issue could be to have a conversation with all children and present them the reasons for your decision, although it might be a sensitive and controversial topic. If you are concerned that one of the children might feel that this is unfair and could possibly contest your will in the future, you can take a few more things into consideration:

• Have your will drafted by an attorney.

• Having a detailed explanation of shares to rule out undue influence.

• Including a “no contest” clause in your will (which means that the beneficiary who unsuccessfully contests the will loses their inheritance).

The best way of protecting yourself and your making sure that you wishes are granted is to consult with an experienced attorney. Contact our office to schedule an appointment and discuss your case.

Reasons Why You Should Have An Estate Plan

Mon, 07 Nov 2022 21:20:12 GMT

1. You dispose of your assets in the way you want

You decide which family members inherit your wealth and how it is going to be distributed. Clear instructions of your will or trust may save your family a lot of trouble and time as well as prevent disputes and lengthy proceedings.

2. You make sure you are taken care of in times of need

Estate planning is not only about your assets. Your wishes regarding end-of-life care, keeping you alive in a critical situation or making decisions on your behalf when you are not able to do it for yourself can be taken care of by creating a living will and healthcare proxy. An experienced attorney can guide you through different possible scenarios and options available to you when planning for the future.

3. To avoid probate

Most people want to avoid probate, since it can be a lengthy and expensive process. With proper estate planning you can prevent your family from going through it after your death.

4. To minimize taxes

You might be considering transferring some of your wealth to your family members upon your death. Estate planning may help reduce some taxes that can impact your assets.

5. You make sure your businesses or investments continue after your death

If you have a business or an investment you wish to continue after your passing, you may want to start business succession planning as part of your estate plan. Transferring a business to family members is a way to protecting your legacy and keeping it in the family.

6. For your peace of mind

Estate planning can be complicated and overwhelming, especially if you accumulated a lot of assets, have a large or blended family, or your assets are in more than one state. It is best to plan in advance so you can be sure that both you and your family are taken care of, your assets are protected, and your death won’t start an unnecessary dispute.

October is a National Estate Planning Awareness month

Fri, 07 Oct 2022 19:04:26 GMT

Any reason is good to highlight the significance of having an estate plan but this month we focus on it a little bit more. Fall and winter are seasons of family time, especially during Thanksgiving or Christmas, and we can use these moments to reflect on our wishes, past and future decisions, family assets and relationships. We remind you of importance of a few major estate planning documents to consider creating:

1. Last Will and Testament – not only creating a will is a way for you to have your wishes honored and your property distributed the way you want but also to make it easier for your family to deal with your assets after your passing. Peace of mind is what you gain.

2. Healthcare Proxy – it is a document that appoints a person (someone you trust) to make medical decisions on your behalf, when you are not able to do so. You may not want to think about possible scenarios of you being incapacitated but appointing a trusted person to speak on your behalf is an important part of planning for the future

3. Power of Attorney – a document in which you appoint someone to act as your agent when you cannot manage your own affairs. Just like healthcare proxy – you need to choose a person you trust, and you know will act in your best interest.

4. Trust – different types of trust concern different situations (you can find more information here and here ) but establishing a trust in general gives you protection over your assets and in some cases allows to avoid probate after your passing.

5. Living will – it is a document that states what treatment you want and do not want to receive in order to keep you alive along with decisions on treatments, pain management or organ donations. It is difficult enough for a family to bear the feeling of losing a loved one but making sure your wishes are met might ease the suffering.

There is a lot of benefits of planning ahead and making sure your wishes are clearly stated and your family will not end up in a dispute. You create your estate throughout your entire life, and you always should feel that your assets are protected, and your wishes are fulfilled. If you have young children, you may want to assign a guardian for them in case of your passing (read more here ). You may be surprised but there is also a possibility to create a pet trust! Literally every aspect of your life and estate can be thought of and put in writing. It is never too early (and never too late) to start your estate planning. If you are still not sure how and where to begin, contact Kate Maguire Tedrick to schedule a consultation and discuss your situation.

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Guardian for your children

183:733478639 (Maura Longenecker) — Thu, 29 Sep 2022 14:06:36 GMT

What happens when a child has only one parent and that parent dies before the child turns 18 or if both parents die at the same time leaving minor children behind?

Naming a guardian for your children is a very crucial part of estate planning. If parents leave minor children behind without selecting a guardian beforehand, then the matter will have to be resolved in court. This might potentially create a dispute in the family and make children suffer even more. Additionally, if you never appointed a guardian, it is possible your children may wind up in the care of the State while they are mourning the loss of their parents. To make sure that your children are going to be taken care of by someone you wish them to be with you would have to name a guardian in your will. The selected person will become the official legal guardian of your children after their parent(s) death and the Surrogate Court’s approval of the guardianship (that is after the will gets probated).

A guardian may be needed not only if both parents die but also if they are unable to take proper care of their children for other reasons, for example if they are sick, unconscious, they are being deported or missing or when they abandon the child.

When choosing a guardian, you need to consider a handful of factors, for example if your appointed guardian would actually want to take on the responsibility and if they have means to do so, where they live and what are their living conditions, if they share your values and would raise your children the way you would have wanted it, if you child would feel good with them and more. It is recommended that you think ahead and in this unlikely case scenario of both parents not being able to take care of the child then someone you trust takes over.

Student loans – what happens when you die

Wed, 14 Sep 2022 15:49:43 GMT

What happens to your student’s loan upon your death depends on the type of loan you have.

The first thing that needs to be determined is whether the loan is federal or private.

Federal loans

Federal student’s loan will be discharged upon your death, which means that there won’t be any further payments. In case of direct PLUS loan, it will be discharged upon death of parent-borrower or the student that the loan was taken for. Your loan servicer needs to receive proof of death in form of an original or a certified copy of the death certificate from your family member or someone you appoint.

Private loans

In case of private loans your lender’s policy will determine what happens with the debt upon your death. It also depends if you have a co-signer or you took then loan out on your own. Co-signers are responsible for the remaining debt, unless the policy of the loan provider states otherwise. There is a way to release the co-signer through compassionate review. It is a process in which the lender, by taking individual’s circumstances into account, may cancel or reduce the debt.

Trust v. asset transfer

Mon, 27 Jun 2022 16:00:14 GMT

Should I transfer my house/assets to my children, or should I create an irrevocable trust?

When Medicaid planning and attempting to avoid probate, two options are often looked at (1) you can transfer your assets to your children by giving them as a gift during your lifetime or (2) you can place them in an irrevocable trust.

Both strategies have advantages, but the irrevocable trust provides more protection for the asset. An irrevocable trust essentially “hides” an asset—the property in the trust is neither owned by the creator, nor is it owned by the beneficiary.

For example, Ruth transfers her interest in her house to her children. Her children now own that house and it is one of their assets. The house can now be seen as an asset by her children’s creditors, in the event any of her children go through a divorce, in the event that any of her children are sued (i.e. car accident or other lawsuit), and in the event that the child wants to apply for federal student aid on behalf of their own children.

Alternatively, Ruth transfers her interest in the house to an irrevocable trust. Her children do not own the home, but will obtain ownership only upon the death of their mother. If any of the above scenarios occur, the house is not seen as one of the children’s assets, as they do not have ownership yet.

Our office can assist you determine which strategy works best for your and your family.

What happens if you die without a will?

Wed, 01 Jun 2022 14:06:11 GMT

You might be wondering what happens when you die without a will, who inherits your assets and how are they distributed. It depends on your situation at the time of death. If you do not have a last will and testament or other trust document, your assets will pass according to state intestacy law:

What is the Difference Between a Will and a Trust?

Fri, 13 May 2022 14:33:56 GMT

A will is a document in which the owner of property decides how to distribute his or her assets in the event of his or her death. The Testator (a person creating a will) can also include instructions for matters other than property – for example appoint guardians for minor children (or even pets), appoint an executor of the will, directions for funeral. In New York State, in most cases, a will must be drawn by a lawyer to be valid, it also must be signed and witnessed. A will becomes effective upon death of the testator.

Trust is a legal document created to transfer assets from an owner to a trustee. Different types of trusts set different terms for the management, distribution and disposition of assets. A trust takes effect upon the transfer of assets.

Trusts can be created during grantor’s lifetime or after his death if it’s based on instructions contained in the will. Different types of trusts can include: revocable trust, irrevocable trust, special needs trust and more.

Every trust usually has three parties:

1. The Grantor

2. The Trustee

3. The Beneficiary

You can contact our office to discuss whether will or trust better suits your needs.

Sweeping Medicaid Changes by Gov. Hochul

Wed, 02 Mar 2022 18:53:37 GMT

Gov. Hochul's State of the State Announced an Elimination of the Asset Test to Qualify for Medicaid

In a surprising change from prior New York Governors, Governor Hochul announced just a few days ago that Medicaid will soon no longer require an asset test for seniors over 65 when seeking to qualify for Medicaid. This is a 180 change from recent law, where the lookback period for home care was increased from one month to 2.5 years. Now, there will be no "lookback" at all.

What does this mean?

It means that when applying for Medicaid, seniors no longer have to be concerned with spending down their assets first. A person can have hundreds of thousands of dollars in the bank, but this will no longer stop them from being approved for Medicaid.

Do I still need to plan?

Yes! Medicaid can still place a lien on your estate upon your passing, so it is important to transfer your assets to irrevocable trusts before you apply for Medicaid, so that the assets will not be seen as recoverable for amounts paid by Medicaid. Additionally, Gov. Hochul's changes still include an income test, so it is important to plan with an elder law attorney to ensure a successful application for Medicaid.

Contact our office if you have additional questions.

When a Gift is Not a Good Thing

Mon, 18 Oct 2021 15:51:37 GMT

Let’s take a look at the following scenario. Your parents are selling their house and decide to give you the profits for safe keeping. This way, the money is in your name in case one or both of them need to apply for Medicaid in the future. Sounds like a good idea, right? WRONG!

When applying for Medicaid, that money would be considered a gift. Medicaid will then still be able to count it as belonging to your parents and include it when calculating their assets. So, while the intensions were good in moving that money out of their name, it does not help in the way you thought it would.

Protecting your assets for Medicaid planning purposes is something not enough people think about, but it is important to consider as we all get older. Kate Maguire and the attorneys at Ken Maguire and Associates can explain and help you determine the best way to protect your money. Don’t hesitate, call Kate at 516-228-8400 today.

Are My Children Entitled to Know the Details of My Will?

Thu, 23 Sep 2021 13:11:22 GMT

Marie in Baldwin posed this question to Kate Maguire.

Great question Marie, and the answer is a definitive NO.

Making decisions on how to divide your assets and possessions after you pass is difficult. It is unfortunately made more challenging when your wishes may not be the same as what your family wants. Many seniors feel pressured to appease their children and give in to what they think is best. Your last will and testament is for YOU to decide how everything should be carried out when you are gone. And you alone dictate who has access to that information while you are still alive. No one, not even your children, have the right to know the details of your will unless you want them to.

Having a will is vital to ensure your wishes are honored. Family dynamics are tough enough. Not having a will in place can cause difficulty for your family both emotionally and financially. A court would have to decide how to divide the assets you worked hard for and the possessions you cherish. This is something that should be determined by you and you alone, without the stress or guilt of anyone knowing what your intentions are.

Thanks again for your question Marie. Anyone with questions can email info@kmlawny.com, and we'll post the response here in our blog. Ken Maguire and Associates, PLLC are here to help with all your elder planning needs including wills, trusts, Medicaid planning and more. Don't hesitate, call Kate at 516-228-8400.

Guardianship or Power of Attorney: Which is Appropriate?

Wed, 08 Sep 2021 21:20:49 GMT

There has recently been a spotlight on the concept of guardianship, and many people are wondering how it differs from a power of attorney. While both allow an individual to act on another’s behalf, the level of decision making is quite different, depending on a person’s cognitive ability and state of mind.

With a power of attorney, someone who is capable of making decisions, but not physically able to carry them out, can designate a power of attorney to take care of financial responsibilities such as banking, paying bills, and signing legal documents.

A guardianship is put into place when an individual has lost the capacity to make and carry out decisions. The guardian is appointed by the court with the intention of operating in the person’s best interests. In situations where a power of attorney is used, a person can dictate what decisions are to be made by the individual chosen to do so. With a guardianship, all decision-making authority is shifted to the guardian. In addition, a person can change the designation of a power of attorney, while a guardianship must be changed by the court.

While a guardianship is for extreme cases, it is important for all adults to have a power of attorney in place for unexpected circumstances. If you have questions or would like more information how to protect you and your loved ones with a power of attorney or guardianship, contact Kate Maguire at 516-228-8400.

What Happens to the Kids?

Tue, 03 Aug 2021 20:54:05 GMT

You did not make a will and you and your significant other pass away. Who takes care of your children?

As a parent, I understand just how hard it is to chose who would take care of your children in the event that you and your co-parent die. No one likes to plan for an untimely death, but they do sometimes happen.

If the unthinkable does happen, and you did not create a will setting forth a guardian for your children, who will take care of them? In New York there is no set rule for who has first rights to guardianship (meaning the children's grandparents do not automatically get "first dibs"). One or multiple relatives may petition for custody, and because you did not put your wishes in writing, the Court will have to determine what is best for your child. If the child is over 14 years of age, they may get a say in who will be elected guardian.

Without a will, the Court will not necessarily know if you have any issues with any family members taking custody of your children, and you cannot predict what will happen. Additionally, your family members may spend thousands of dollars on lawyers fighting over custody.

A will takes away any headaches your family may have over choosing the right guardian, and allows your family to focus on grieving and healing, rather than fighting. Contact our office to schedule an appointment if you want to put a plan into place.

Guardianship: Can They Really Do That?

Tue, 20 Jul 2021 21:03:41 GMT

There has been a lot of talk in the media recently about guardianships and questions of whether they prevent a person from maintaining their rights. Much of that discussion is either inaccurate or could not happen in the State of New York. For example, the scenario in Netflix’s I Care A Lot could never happen in New York, as a guardian cannot be elected in New York without notice to the individual and her/his family. What is a guardianship? In New York, a guardianship may be granted for an individual who is unable to provide for their personal needs and/or property management, and cannot adequately understand and appreciate the nature and consequences of such inability. A guardianship is not necessarily permanent and can be terminated should there no longer be a need for a guardianship.

In New York, many protections in New York are put in place to prevent abuse during a guardianship. For example:

• A guardian is not elected without notice to you and your relatives

• An individual has a right to counsel in a guardianship proceeding, and if they cannot afford counsel, counsel will be appointed for them.

• A guardian cannot put you in a nursing home without a court order.

• A guardian cannot sell your home without a court order.

• A court examiner reviews all monetary funds spent by your guardian for review.

• A guardian must file an annual report about your medical condition, which includes a statement from a doctor.

Is it too early to contact a trusts and estates attorney?

Thu, 22 Oct 2020 16:20:44 GMT

Many people worry that it is either too early to contact an attorney to discuss the future. The fact is, it is never too early, and never too late to prepare! While encouraging their parents to ensure they have the proper documentation in place, Millenials and Gen. Xers should be securing their futures and those of their children as well. Especially in our current climate, we are all aware of how precious life is, and that it can end much too soon.

Those who have small children should ensure that they have a will in place that names a legal guardian in case of your and/or your spouse's untimely death.

It is also important for adults to execute a health care proxy in the event that they require emergency medical care and are unable to advocate for themselves. The parent of an adult child has no legal rights to act as health care proxy without such a document in place.

Contact Kate Maguire if you have any questions.

Obtain estate planning documents safely from your living room

Mon, 13 Apr 2020 18:44:52 GMT

New York has passed an unprecedented measure to allow individuals to obtain legal estate documents while safely staying at home while COVID-19 continues to spread. Usually in order to execute a will or other estate documents in New York, witnesses are required, as well as notaries. Now, these witnesses and notaries can all be done virtually, so long as the individuals have access to video conferencing.

Our office is able to provide remote consultations, drafting, witnessing and notaries. No one should have to worry about having their affairs in order during this difficult time. You can contact our office via email at info@kmlawny.com.

We are working for you during the COVID-19 epidemic

Tue, 24 Mar 2020 16:43:34 GMT

While New Yorkers are doing their duty and staying home during the COVID-19 crisis, we can work with you to get estate documents completed from the safety of your own home. Our office is able to draft wills, trusts, powers of attorney, health care proxies and living wills remotely.

Please contact Kate at katemaguire@kmlawny.com if you have any questions.

Who Needs a Health Care Proxy? EVERYONE!

Tue, 14 Jan 2020 20:43:09 GMT

First, what is a health care proxy?

A health care proxy is a legal document that you sign, granting an individual access to your medical records and the ability to direct your care in the event that you are unable to do so. Most people simply assume that only the elderly, disabled or infirm need such forms, but this is a myth.

The truth is, once a person is over the age of 18, medical professionals are not permitted to provide your loved ones with your medical information, or to take direction from your loved ones without a health care proxy. This includes ALL loved ones, including your spouse, parent, sibling or adult child. Even your spouse must have an executed health care proxy to have access to your medical records and make decisions on your behalf if you cannot. The following scenarios are just some of the things that may happen that require a health care proxy:

Your daughter is in a car accident while away at college, and arrives to the hospital unconscious.
Your husband has a seizure on the job, and is transported to the hospital by ambulance.
Your mother is undergoing surgery, and complications arise requiring decisions on the course of treatment.

Without a health care proxy, these individuals' loved ones cannot obtain any information regarding the patient's status, course of treatment, or make any decisions regarding care on the patient's behalf. Tragedy can strike at any age, and if you are unconscious, you will not be able to sign a health care proxy. A health care proxy is necessary at any age, and easy to create. Our office can help assist you with ensuring you are prepared for wherever life takes you.

Why do I need an attorney to draft a living will (also known as DNR/end of life directives)?

Wed, 08 Jan 2020 22:12:04 GMT

First, what is a living will? A living will is a document that states your wishes regarding end of life planning. Typically, a living will includes whether an individual wants to receive life-sustaining measures when the individual is unable to communicate their desires, and there is no reasonable expectation of recovery.

There are many ways to obtain a living will, including drafting it yourself with the assistance of the internet. However, a recent news story shows just how important it is to ensure you have an attorney draft a living will to include the right language ensuring that there is no miscommunication, which could lead to disastrous consequences.

On Long Island, two brothers are embattled in a law suit seeking a determination from a Nassau County Court to decide if their mother should continue to receive life-sustaining measures. Their conscious mother, who is in her 90s, and able to communicate, is on a feeding tube and ventilators. She has a living will, and is able to communicate that she does not want to be taken off of life support. Yet one of her sons is seeking guardianship of his mother so that he can remove her feeding tube and take her off of a ventilator.

It is absolutely vital for the patient that the living will include the proper language regarding her wishes. Notably, the living will must be very clear that it is only in effect if the patient cannot communicate their own desires at the time the treatment is being rendered. Many living will forms can be found on the internet do not contain this information. While it is necessary to maintain a living will in order to provide your loved ones with your intentions in the event you cannot communicate them , no one should be deprived of their right to advocate for themselves.

What is a Disability Pooled Trust?

Fri, 11 Oct 2019 14:22:29 GMT

Disability Pooled Trusts allow New Yorkers to qualify for medicaid while maintaining their income

As of 2019, in order to qualify for medicaid, an individual must earn less than $859 per month, or a couple must earn less than $1267 per month. Often social security alone provides higher monthly income than these limits. So how can someone possibly qualify for medicaid? This is where disability pooled trusts come into play. A disability pooled trust is a medicaid approved trust that allows the applicant to deposit any amounts earned over the medicaid limit into the trust each month. The applicant can then use the money placed in the trust on daily living requirements. The one caveat to the trust is that any money not spent per month by the applicant is given to medicaid.

The following is an example of how a disability pooled trust operates:

Tim, a widower, is trying to qualify for medicaid so that he can obtain home health aides. With his social security and veterans benefits, Tim receives $2500 per month. This leaves him with a surplus of $1641 per month. However, without medicaid, he cannot afford the home health aides he requires. Tim opens an account with a disability pooled trust, and transfers $1641 each month to the trust. He then uses that money to pay for his mortgage, property taxes, utilities, and any other monthly bills, as well as any food/pharmacy needs. To the extent that there is any money left in the trust after all of these bills are paid, the remaining balance is given to medicaid.

Our office can assist you with finding the right trust, and completing the medicaid application process.

What is Medicaid Planning?

Tue, 01 Oct 2019 21:43:44 GMT

Done right, medicaid planning can save you and your family hundreds of thousands of dollars per year.

According to the Department of Health and Human Services, individuals who reach the age of 65 have a 70% chance of requiring nursing home care at some point in their lives. A whopping 20% of those people who need the care will require care for 5 years or more.

Long Island has THE highest average cost of nursing home care in the country. Medicaid calculates the average monthly rate of care to be $13,053 per month as of 2019 (New York City's rate is $12,319 per month). If you become part of that percentage of the elderly that requires care for five years, at today's rate, this would cost $783,180 over the course of five years.

This is where Medicaid planning comes in. When done properly, New York residents can protect their assets by making certain asset transfers which allow the resident to qualify for Medicaid. Once qualified, Medicaid will pay for the resident's medical care. Medicaid may also be used not only to ensure that a person is able to afford nursing home care, but also home care from qualified and respected agencies. Talking to an elder planning attorney is vital to saving your life savings and giving you piece of mind. Our office provides various payment options and plans for setting up your individual needs. Contact us if you would like to set up a consultation.

Burlington and the Duty to Defend Revisited

Wed, 07 Nov 2018 16:24:34 GMT

The duty to defend remains unaltered by the Burlington decision.

The Burlington Ins. Co. v. NYC Transit Auth. Court of Appeals decision in 2017 changed the way the commercial liability insurer's duty to indemnify is analyzed by New York Courts. 2017 NY Slip Op 04384. Since that decision, insurers and their attorneys have pondered over whether this case changes how the duty to defend is triggered in New York.

In McCoy v. Medford Landing, L.P. , the Second Department addresses this very issue. Under well-established New York law, the additional insured provision of a commercial general liability policy is triggered based on the four corners of the complaint. For example, suppose a personal injury complaint states that the named insured was in any way responsible for the plaintiff's injuries, and that the named insured entered into contract with a third party agreeing to defend and indemnify the third party, and provide the third party with general liability insurance coverage. In this common scenario, the additional insured provision of the policy obtained by the named insured is triggered as a result of these allegations, and the insurer has the duty to defend the third party as an additional insured (this is also assuming the policy contains the common additional insured provision that a third party is an additional insured "where required by written contract").

Despite Burlington , it appears that the law regarding the duty to defend remains unaltered. In McCoy , the Second Department found that the duty to defend is triggered by a policy even where the underlying complaint has been dismissed. 2018 N.Y. Slip. Op. 06236 (2d Dep't 2018). In McCoy , the additional insured sought defense coverage of a personal injury suit, and moved for summary judgment on the issue. The summary judgment motion was denied, and in the interim the personal injury suit went to trial. During the appeal, the trial occurred and the jury verdict found in favor of the additional insured, dismissing the action in its entirety. Despite the fact that none of the parties were held liable for the damages alleged by the plaintiff, and therefore the accident could not have been "caused by" the acts or omissions of the named insured, the Second Department found that the insurer was nonetheless obligated to provide defense coverage to the additional insured. In so doing, the Court noted that the duty to defend is broader than the duty to indemnify, and where the allegations in the complaint suggest a reasonable possibility of coverage, an insurer owes defense.

Therefore it appears that, despite the fact that Burlington requires a trigger of proximate causation for the duty to indemnify to be triggered, no such requirement currently exists in order to trigger the duty to defend. Regardless of the potential (or lack thereof) that the claim was caused by the acts or omissions of the named insured, where a complaint contains such allegations, an insurer nonetheless has the duty to defend.

Gift and Estate Tax

Mon, 24 Sep 2018 15:26:43 GMT

Most middle class individuals have no need to fear gift or estate taxes

Many clients worry about the tax implications of gifts either during their lifetime or through their will. Under the current tax laws, however, most middle-class individuals have no reason to worry. Currently, an individual is permitted to give up to $5.2 million in gifts before any of the gifts become taxable.

When a monetary gift is made during a person's lifetime, such gifts are to be reported to the IRS. Such gifts are not taxable, however, until the individual has made over $5.2 million in gifts. The individual is required to report, however, so that the IRS maintains a record of the amount such an individual has thus far given. It is the gift giver that is to report the gift, however, not the receiver. The recipient is only to report the gift should the giver fail to do so.

Therefore, in medicaid planning, giving gifts is typically part of a sound strategy to save your assets for your family.

Another Insurance Coverage Game Changer

Fri, 18 May 2018 21:46:23 GMT

Burlington strikes again, finding an employer's CGL policy does not automatically trigger additional insured coverage.

The Court of Appeals rocked the New York insurance industry last year with the Burlington decision, finding that "caused by" and "arising out of" terminology contained in an additional insured form contained in a standard CGL policy are no longer treated as interchangeable. Instead, the Court determined that in order to determine if a loss was "caused by" the acts or omissions of the named insured, the Court of Appeals now requires a finding of proximate causation assigned to the named insured.

Historically in New York cases dictated that where the loss in question involves the named insureds employee, coverage is all but automatically triggered, regardless of the wording "caused by" or "arising out of." It was not clear if Burlington changed this fact, as the injury in question in Burlington did not include a named insured's employee. However, in March of 2018, the First Department changed the game once more issuing a decision finding that, where the premises owner has been assigned sole proximate causation in the underlying action, the premises owner cannot obtain status as an additional insured under the employer's general liability policy. Hanover Ins. Co. v. Philadelphia Indem. Ins. Co. , 2018 N.Y. Slip. Op. 02121 (1st Dep't 2018).

As a result, it appears that Courts are interpreting Burlington to require proximate causation across the board, including those cases involving an employee.

The Death Bed Will in New York

Tue, 15 May 2018 18:13:16 GMT

We’ve all seen it in the movies: during their last breaths, a person tries to bequeath their assets to another, either orally or writing a will themselves. While this makes for great cinematic effect, unfortunately in New York it typically has no legal effect.

An oral will, otherwise known as a nuncupative will, is not valid if made in the State of New York, unless such a will is made by a mariner at sea, or a member of the armed forces during a declared or undeclared war. E.P.T.L. § 3-2.2. However, even under those circumstances, the will is still only valid for one year after the mariner returns from the sea or the military member is discharged. However, if such an oral will is made in a State in which oral wills are valid, New York will enforce the will. Likewise, a will drafted by someone by their own hand, which is not witnessed by any individuals, is also not valid in the State of New York. Such a will is known as a holographic will. Holographic wills also carry the same exceptions as nuncapative wills under New York’s probate laws.

In order for a will to be valid in the State of New York, the following seven qualifications must be met: (1) the testator, or person who is drafting the will, is 18 or over, (2) the testator signs the will, (3) the signature must be at the end of the document, (4) the testator signs the will in front of witnesses, (5) the will is published, (6) the will is signed by two witnesses, and (7) all of these steps are completed within 30 days.

Our office can assist you with preparation of a will.

-Kate Maguire, Esq.

The Parade Balloon that Got Away

Thu, 23 Nov 2017 00:00:00 GMT

In Light of tomorrow's holiday, this posting concerns the potential legal consequences when the Thanksgiving Parade goes wrong. In 1997 the Macy's Thanksgiving Day Parade in New York City started as planned, despite strong winds. Unfortunately a Cat in the Hat balloon was blown into a lamppost, which became dislodged and struck several parade goers. This was not the only balloon that went flying out of control that day, as it was reported that another balloon in the shape of Peter Rabbit had also hit the lamppost.

One of those spectators, Kathleen Caronna, suffered head injuries as a result of the accident. As a result of those injuries, Ms. Caronna brought claims against not only Macy's but many other entities including: the Department of Transportation (which designed the lamppost), the City, and the New York City Police Department (for allowing the parade to go forward despite heavy winds).

On motions for summary judgment, the New York County Supreme Court granted several of the defendants' motions for summary judgment. The Court granted the motion made by the City and NYPD because the police had conferred with Macy's personnel responsible for the parade that morning, and were assured that the Macy's employees would be able to handle the balloons, as they had years of experience. Citing relevant case law, the Court found that the decision to issue a parade permit is discretionary, and does not provide a basis for imposition of liability.

Additionally, both Ms. Caronna and Macy's claimed that the City was liable for improperly directing foot traffic of the parade goers. However, the Court dismissed these claims because in order to impose liability upon a municipality, New York law requires that the municipality owes a special duty to the plaintiff. Here, no such special duty of care existed.

The claims against the Department of Transportation based in products liability were also dismissed because there was no evidence that the City had actual or constructive notice of the dangerous condition the lamppost was in, nor was there sufficient evidence that the lamppost was designed in a defective manner.

However, the claims against the Department of Transportation for negligent maintenance of the lamppost were sustained. There were issues of fact as to whether bolts were missing from the lamppost as a result of a previous accident, and therefore the claim survived summary judgment.

The full opinion can be found at Caronna v. Macy's East, Inc., 800 N.Y.S.2d 343 (Sup. Ct. N.Y. Cty. 2001).

The Best Laid Schemes: dividing life insurance proceeds between children and wife

Tue, 14 Nov 2017 00:00:00 GMT

It's always refreshing when a judge shows his or her humorous side, particularly in rendering a thoughtful decision. This September, Judge Richard Dollinger of the Monroe County Supreme Court had fun with his opinion, beginning it with a quote from Robert Burn's famous poem "To a Mouse, on Turning Her Up in Her Nest With the Plough, November, 1785" made more famous by John Steinbeck's Of Mice and Men.

While the reference is enjoyable, the content of the suit is no laughing matter. The case, In the Matter of the Application of Linda Page f/k/a Linda Lynch, From the Imposition of a Constructive Trust on Certain Insurance Proceeds Pursuant to Insurance Law § 3212, stems from a dispute over life insurance proceeds between an ex-wife seeking support for her deceased ex-husband's children, and the deceased's widow.

Thinking ahead, upon the couple's divorce, they entered into a separation agreement, wherein the deceased agreed to maintain an insurance policy of no less than $120,000 until the youngest of their children was emancipated. The separation agreement required that the policy name as a beneficiary "a trust for the benefit of the children." Upon his death, his ex-wife sought payment under the policy, which the insurer refused without the creation of a trust pursuant to the separation agreement.

While all parties agreed to the payment under trust for the benefit of his child in the amount of $120,000, the deceased maintained more than $120,000 in life insurance. Thus, after his death, both the widow and his ex-wife claimed entitlement to the additional insurance proceeds. In so doing, the ex-wife argued that the deceased failed to pay the college tuition of one of her children, and that she is therefore a "creditor" under insurance law 3212(e)(1), and is allowed to intercept the excess proceeds.

The Court determined that, finding no evidence that the excess proceeds under the policy were to be assigned to the trust established for his children, that the excess proceeds should be paid to his widow. The Court further noted that the ex-wife could bring a claim against the deceased's estate to obtain the unpaid college tuition, but that seeking it directly from the excess insurance proceeds is improper. 57 Misc.3d 1207(A) (Sup. Ct. Monroe Cty. 2017).

As a result, the Court made it clear that, should a party have a valid claim against a deceased individual, the proper avenue is not through a claim against the insurance policy pursuant to insurance law § 3212(e)(1), but instead to bring a claim against the deceased individual's estate.

Have any insurance law questions for us? Contact me at katemaguire@kmlawny.com

-Kate Maguire, Esq.

My First Blog Post

Tue, 07 Nov 2017 00:00:00 GMT

Here you'll find our attorneys' guides to new and exciting law that effects many different types of businesses and individuals that may be useful to our clients.

We will try to post about something new once a week. If you ever have a question you would like us to tackle in this blog, email us at info@kmlawny.com.

-Kate Maguire,

katemaguire@kmlawny.com