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Garden City, NY Estate Planning & Complex Litigation Blog

Monday, July 24, 2017

Why New Parents Need an Estate Plan

Becoming a new parent is a life changing experience, and caring for a child is an awesome responsibility as well as a joy. This is also the time to think about your child's future by asking an important question: who will care for your child if you become disabled or die? The best way to put your mind at ease is by having an estate plan.

The most basic estate planning tool is a will, which enables a person to determine how his or her assets will be distributed after death. Without this important estate planning tool, the state's intestacy laws will govern how these assets will be distributed. In addition, decisions about who will care for any minor children will be made by the court. For this reason, it is crucial for new parents to have a will as this is the only way to name guardians for minor children.

In this regard, selecting guardians involves a number of important considerations. Obviously, it is important to name individuals who are emotionally and financially capable of raising a child. At the same time, a will can also establish a trust that provides funds to be used to provide for the child's needs. Ultimately, guardians should share the same moral and spiritual values, and childrearing philosophy of the parents.

In addition to naming guardians in a will, it is also critical to plan for the possibility of incapacity by creating powers of attorney and advance medical directives. A durable power of attorney allows a new parent to name a spouse, or other trusted relative or friend, to handle personal and financial affairs. Further, a power of attorney for healthcare, or healthcare proxy, designates a trusted person to make medical decisions in accordance with the parent's preferences.

Finally, new parents should also obtain adequate life insurance to protect the family. The proceeds from an insurance policy can replace lost income, pay household and living expenses, as well as any debts that may have been owed by the deceased parent. It is also important to ensure that beneficiary designations on any retirement accounts are up to date so that these assets can be transferred expediently.

In the end, having a child is a time of joy, but also one that requires careful planning. The best way to protect your family is by consulting with an experienced estate planning attorney who can help you navigate the process.

 


Monday, July 17, 2017

Common Construction Accidents

Because construction work is inherently dangerous, the risk of injury to workers is greater than in other industries and workplaces. However, construction workers have a right to a safe work environment. While construction injuries are usually covered under workers' compensation laws, it may be possible to pursue a lawsuit based on negligence against site owners, contractors, subcontractors, their employees and agents for violations of applicable safety laws.

There are number of causes of construction accidents, including:

  • Falls - from roofs, ladders scaffolding and other heights
  • Falling objects - improperly secured tools, equipment and construction material can fall and strike a worker, causing head, neck, brain and spinal injuries
  • Equipment accidents - workers can be injured by machinery and equipment such as forklifts, cranes, nails guns and dumpsters
  • Fires and explosions - hazards arise from exposed wires, flammable materials, blow torches and leaking pipes which can lead to catastrophic injuries and fatalities
  • Trench/ Building Collapses - workers can be buried, injured and killed in trench collapses or by buildings that are being constructed or demolished
  • Repetitive Motion Injuries - physical labor often requires bending and lifting that can lead to muscle and joint damage
  • Respiratory illnesses - as a result of exposure to dust, asbestos, and other pollutants

Construction accidents can lead to a variety of injuries. For example, many injuries require fingers, toes and limbs to be amputated. In addition, broken bones and fractures are common as are shoulder, knee and ankle injuries. Workers can suffer head or brain injuries from falls or falling objects as well as spinal cord injuries or paralysis. Other common injuries include eye injuries or loss of vision, and hearing loss.

If you are a construction worker who has been injured on the job, you have the right to be treated for your injuries and the right to receive workers' compensation benefits. If the injury was the result of negligence, however, you may be able to pursue a personal injury lawsuit.


Monday, July 10, 2017

Things to Consider Establishing a Charitable Giving Plan

For many individuals, leaving a legacy of charity is an important component of estate planning, but there are many factors involved in creating a charitable giving plan.

First, it is important to select causes that you believe in such as environmental, educational, religious or medical, or those dedicated to providing food and shelter to the poor. The number of charities you wish to give to depends on your available resources, as well as other beneficiaries of your estate. Many people opt to limit their selections to a handful of charities that are most important to them.

Once charities have been selected, it is crucial to do some homework to make sure the charities are legitimate, and that your gift will be used for the intended purpose, rather than to pay salaries or administrative costs. A good place to start is with the charity's website, and there are many publicly available resources that evaluate charities.

Further, it is important to be realistic about how much of our assets can be dedicated to gift giving, and how those donations should be allocated to the designated charities. Proceeds can either be divided equally, or more money can be provided to the charity you deem most worthy.

Lastly, it is important to avoid the common mistakes many make when planning charitable gifts. It is crucial to ensure that you are donating to a legitimate charity by thoroughly evaluating the agency. In addition, your gift should not be overly restricted since this could make it difficult for the charity to use.If your assets are in stocks, they should not be sold and the profits donated, rather the stocks should be gifted directly to the charity.  

In sum, your gift needs to be helpful to the charity, but also take advantage of tax benefits to which you may be entitled, and these objectives can be achieved by establishing a trust. For example, a charitable remainder trust is one into which property is transferred with a charity named as the final beneficiary. In this arrangement, another individual receives income from the trust for a set period of time and then the remainder is given to the charity. In the end, if your objective is to become a sophisticated donor, it is essential to engage the services of an experienced trusts and estates attorney.


Monday, June 26, 2017

Real Estate Contracts in a Nutshell

Buying a home typically involves entering into an agreement with the seller and most real estate contracts contain standard terms. However, it is essential to consult with an experienced real estate attorney who can review the contract. Let's take a look at some of the key terms in a real estate contract.

Obviously, the agreement must specify the purchase price. Unless you are paying for the property in cash, it will be necessary to obtain a loan from a bank or mortgage lender. Accordingly, the contract should state that the offer is contingent upon a loan approval. If possible, the interest rate and other terms of the loan should be specified to make sure you can make the monthly payment. If the application is rejected or lender offers a higher rate, you may need to back out of the deal. In short, without this provision in the contract, you may lose your deposit.

Further, a critical aspect of buying a home is arranging for an inspection of the dwelling to ensure that it is structurally sound, the roof does not need repairs, and that the heating and electrical systems are functioning properly. If there are defects that need to be repaired, the contract should specify that the seller will agree to make and pay for them.

While homebuyers often assume that fixtures and appliances come with the home, this is not always the case. For this reason, the contract should specify whether the refrigerator, dishwasher, washer/dryer, ceiling lights and other appliances and fixtures are included.

In addition, it is important to clarify which party will pay specific closing cost such as escrow fees, title search fees, title insurance, notary fees, re-coding fees, bank fees, and the like. In some transactions, it may be possible to negotiate a seller's concession. In this arrangement, the seller agrees to pay part or all of the buyer's closing costs.

Lastly, the contract should also include a planned closing date that considers other factors such as whether the buyer is simultaneously selling an existing home, conditions of the loan commitment, and any other issues that could delay the loan closing.

In the end, if you are planning to buy a home, an experienced real estate attorney can help protect your interests and get the best deal.


Monday, June 19, 2017

Why You Need a Personal Injury Attorney

If you have been in injured in an accident, the consequences can long lasting. In addition to pain and suffering and medical expenses, you may be unable to work or provide for yourself and your family.

That's the bad news. The good news is that you may be entitled to meaningful compensation if the accident was the result of the negligent or reckless conduct of another person.

In order to determine if you have grounds for a lawsuit, however, it is crucial to engage the services of an experienced personal injury attorney. While many injury claims are settled through a negotiation with an insurance company, insurers are more concerned about profits than injury victims. These companies typically make settlement offers that are far below the full value of the claim. In addition, the scales are tipped in their favor because insurers has vast financial resources and teams of attorneys, claims adjusters, medical experts and private investigators. For this reason, it is crucial to have an attorney in your corner who will fight for right to just compensation.

In addition, personal injury attorneys often have expertise in assessing claims and can help determine how much you case is really worth. Moreover, injury claims involve a number of complexities such as obtaining evidence that will support you case, interviewing witnesses, reconstructing the accident scene, all of which are aimed at demonstrating the other parties liability.

It is also necessary to submit doctor's reports, medical tests, proof of medical expenses and other relevant information. Because attorneys often collaborate with a network of medical experts and investigators, they can level the playing field against the insurance company. Lastly, most personal injury cases are handled on a contingency basis, which means that you do not pay attorney fees unless you recover settlement money.

If you were injured in an accident that was not your fault, you may be able to recover damages for pain and suffering, lost wages, medical expenses and property damage. A savvy personal injury attorney will also ensure that any settlement considers future physical, emotional and financial harm you may suffer.

Being injured in an accident is a frightening experience, and the road to recovery can be long. Don't go it alone, call a personal injury attorney today.

 


Monday, June 12, 2017

A Primer on Irrevocable Trusts

Many individuals are aware that a will is one way to plan for the distribution of their assets after death. However, a comprehensive estate plan also considers other objectives such as planning for long-term care and asset protection. For this reason, it is essential to consider utilizing an irrevocable trust.

This estate planning tool becomes effective during a person's lifetime, but it cannot be amended or modified. The person making the trust, the grantor, transfers property into the trust permanently. In so doing, the grantor no longer owns property, and a designated trustee owns and manages the assets for the benefit of the beneficiaries.

In short, irrevocable trust provide a number of advantages. First, the property is not subject to estate taxes because the grantor no longer owns it. Moreover, unlike a will, an irrevocable trust is not probated in court. Finally, assets are protected from creditors.

Common Irrevocable Trusts

There are a variety of irrevocable trusts, including:

  • Bypass Trusts -  utilized by married couples to reduce estate taxes when the second spouse dies. In this arrangement, the property of the spouse who dies first is transferred into the trust for the benefit of the surviving spouse. Because he or she does not own it, the property does not become part of this spouse's estate when he or she dies.

  • Charitable Trusts - created to reduce income and estate taxes through a combination of gifting and charitable donations.  For example, charitable remainder trust transfers property into a trust and names a charity as the final beneficiary, but another individual receives income before,  for a certain time period.

  • Life Insurance Trusts - proceeds of life insurance are removed from the estate and ownership of the policy is transferred into the trust. While insurance passes outside of the estate, it is factored into the value of the estate for tax purposes, so this vehicle is designed to minimize estate taxes.

  • Spendthrift Trusts – designed to protect those who may not be able to manage finances on their own. A trustee is named to manage and distribute the funds to the beneficiary or directly to creditors, depending on the terms of the trust.

  • Special needs trusts - designed to protect the public benefits that many special needs individuals receive. Since an inheritance could disqualify a beneficiary from Medicaid, for example, this estate planning tool provides money for additional day to day expenses while preserving the government benefits.

The Takeaway

Irrevocable trusts are essential estate planning tools that can protect an individual's assets, minimize taxes and provide for loved ones. In the end, these objectives can be accomplished with the advice and counsel of an experienced estate planning attorney.

 


Monday, May 22, 2017

Underinsured and At-Fault

Almost all states require some form of auto coverage insurance. This may include Bodily Injury Coverage, Personal Injury Protection, Property Damage Liability, Collision Coverage, and even Uninsured Motor Coverage. Depending on the state, the coverage level will vary greatly. For instance, you may only be required by to carry $25,000 in bodily injury coverage. While a relative residing across the country may be required to carry $50,000 in bodily injury coverage.  And while mandated requirements are often used as guides by drivers when selecting their policies, these coverage levels are not always enough to cover the cost of an accident. So what happens if you are underinsured and at fault in an accident?

The course of action will vary greatly depending on whether you are in a state with no-fault laws or traditional tort insurance laws. In states with no-fault laws, your insurance company will pay your damages while the other party’s insurance company will be responsible for theirs so if you choose to carry low levels of coverage the amount you receive after an accident will be capped by the coverage you selected. In states where traditional tort insurance laws exist, fault is established and the party at fault is responsible for the damages. If the driver at fault is underinsured in a traditional tort state, both parties may be in trouble.

Following the accident, your insurance company will seek to settle all claims as soon as possible. Even if you carry the lowest possible coverage, your insurer is responsible for your legal representation. If the opposing party has injuries exceeding your coverage level, and has Underinsured or Uninsured Motor Coverage, he or she may be able to collect the difference from this policy. However, if they don’t have this extra protection net from their own insurer or the damages exceed the policy limits, the injured party may file a lawsuit against you where your personal assets are at risk. 

In selecting an auto insurance policy, you might consider purchasing coverage above the minimum limits to protect your assets and livelihood. While a limit of $25,000 may seem high, the costs of healthcare continue to soar and just a one week stay at a hospital following an accident can easily exceed that amount.

 


Monday, May 15, 2017

When to Involve Adult Children in the Estate Planning Process

Individuals who are beginning the estate planning process may assume it's best to have their adult child(ren) join them in the initial meeting with an estate planning attorney, but this may cause more harm than good.

This issue comes up often in the estate planning and elder law field, and it's a matter of client confidentiality. The attorney must determine who their client is- the individual looking to draft an estate plan or their adult children- and they owe confidentiality to that particular client.

The client is the person whose interests are most at stake. In this case, it is the parent. The attorney must be certain that they understand your wishes, goals and objectives. Having your child in the meeting could cause a problem if your child is joining in on the conversation, which may make it difficult for the attorney to determine if the wishes are those of your child, or are really your wishes.

Especially when representing elderly clients, there may be concerns that the wishes and desires of a child may be in conflict with the best interests of the parent. For example, in a Medicaid and long-term care estate planning context, the attorney may explain various options and one of those may involve transferring, or gifting, assets to children. The child's interest (purely from a financial aspect) would be to receive this gift. However, that may not be what the parent wants, or feels comfortable with. The parent may be reluctant to express those concerns to the attorney if the child is sitting right next to the parent in the meeting.

Also, the attorney will need to make a determination concerning the client's competency. Attorneys are usually able to assess a client's ability to make decisions during the initial meeting. Having a child in the room may make it more difficult for the attorney to determine competency because the child may be "guiding" the parent and finishing the parents thoughts in an attempt to help. 

The American Bar Association has published a pamphlet on these issues titled "Why Am I Left in the Waiting Room?" that may be helpful for you and your child to read prior to meeting with an attorney. 


Monday, May 8, 2017

Respondeat Superior and Vicarious Liability

The first question an attorney must ask when filing a lawsuit is who is responsible for the damages to his or her client. A lawyer must figure out who to name as a party in the lawsuit. This is incredibly important, because, if the wrong parties are named, the victim may be left with no way to recover for the injuries suffered. This would be a travesty of justice and is unacceptable.

It is prudent to name every party that might be responsible when filing a lawsuit. Only an attorney can make the determination as to who might be liable for an individual’s personal injuries. It is particularly important to make sure that the parties who are named are capable of contributing to the damages, either through wealth or insurance. For example, if a person who does not normally drive and has no insurance is borrowing a friend’s car, and causes a car accident, that person is likely to be unable to pay for the damage he or she caused. Similarly, if a person makes a mistake while working and causes personal injury, that individual may be the one who caused the injury, but the individual is not the only one who can be held accountable for the pain and suffering.

The legal doctrine of Respondeat Superior is Latin for “let the master answer.” It places vicarious liability on any third party that had the right, ability, or duty to control the individual who caused a personal injury. Respondeat Superior is one of the oldest traditions in the practice of law. It predates our Constitution and goes back to English Common Law. Without it, corporations and municipalities would have little reason to enforce standards of care among their employees. Employers would avoid liability for their employee’s negligence, but injured people would have no way to collect money damages for their pain and suffering. Respondeat Superior is an integral part of American jurisprudence. The most common uses of this doctrine are to hold employers liable for the actions or omissions of their employees, to hold owners of property liable for the negligence of those allowed to use that property, and to hold parents liable for their unsupervised children. 


Monday, April 24, 2017

What Does the Term "Funding the Trust" Mean in Estate Planning?

If you are about to begin the estate planning process, you have likely heard the term "funding the trust" thrown around a great deal. What does this mean? And what will happen if you fail to fund the trust?

The phrase, or term, "funding the trust" refers to the process of titling your assets into your revocable living trust. A revocable living trust is a common estate planning document and one which you may choose to incorporate into your own estate planning. Sometimes such a trust may be referred to as a "will substitute" because the dispositive terms of your estate plan will be contained within the trust instead of the will. A revocable living trust will allow you to have your affairs bypass the probate court upon your death, using a revocable living trust will help accomplish that goal.

Upon your death, only assets titled in your name alone will have to pass through the court probate process. Therefore, if you create a trust, and if you take the steps to title all of your assets in the name of the trust, there would be no need for a court probate because no assets would remain in your name. This step is generally referred to as "funding the trust" and is often overlooked. Many people create the trust but yet they fail to take the step of re-titling assets in the trust name. If you do not title your trust assets into the name of the trust, then your estate will still require a court probate.

A proper trust-based estate plan would still include a will that is sometimes referred to as a "pour-over" will. The will acts as a backstop to the trust so that any asset that is in your name upon your death (instead of the trust) will still get into the trust. The will names the trust as the beneficiary. It is not as efficient to do this because your estate will still require a probate, but all assets will then flow into the trust.

Another option: You can also name your trust as beneficiary of life insurance and retirement assets. However, retirement assets are special in that there is an "income" tax issue. Be sure to seek competent tax and legal advice before deciding who to name as beneficiary on those retirement assets.


Monday, April 17, 2017

Can You Sue City Hall?

Many individuals mistakenly believe that they cannot sue city hall, but this is not the case. Under the doctrine of sovereign immunity, town, city, county and state governments were once protected from most lawsuits. Today, those rules have been scaled back to some extent, and the government can be held responsible for personal injuries and property damage or unlawful conduct. Let's take a look at personal injury and other lawsuits that can be brought against government entities.

There are a number of ways the government can be held liable for accidents and injuries. For example an individual who is injured in a slip and fall accident at a government office or facility may have grounds for a premises liability lawsuit. Similarly, a motorist or passenger who is injured in an accident with a government owned truck or car, or a motor vehicle being driven by a government employee or contractor while conducting official business, can bring a personal injury lawsuit.

In an addition, an employment lawsuit can be brought by a government employee for harassment, discrimination or wrongful termination against his or her government employer. Finally, law enforcement agencies can be sued for a wide range of civil rights violations.

In short, there are a number of legal claims that can be brought against the government. It is important to note that there are differences between suing the government and suing a private person or business.

For example, the time period to bring a personal injury claim against the government , referred to as the statute of limitations, is typically much shorter.  Further, before filing a lawsuit, it is also necessary to provide a Notice of Claim to the government, agency, or employee within a set time period notifying them that a lawsuit will be brought. Lastly, many states require individuals to file an administrative claim with a government agency before filing a civil case in court.

In the end, it is possible to sue city hall, so to speak, but there are a number of hurdles that need to be crossed. Moreover, some governments may still be immune from certain injury claims, depending on the state in which you live. If you were injured due to the negligent or illegal conduct of a government entity or employee, you should speak to an experienced attorney.


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Lawrence M. Gordon, Attorney at Law, P.C. has offices in Garden City, NY and assists clients throughout Long Island, including: the north shore of Long Island, The Town Of Oyster Bay, The Town Of North Hempstead, The Town Of Hempstead, The Town Of Huntington, Nassau & Suffolk Counties & throughout the Five Boroughs of The City Of New York.



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