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Bellmore, NY Estate Planning & Complex Litigation Blog

Monday, September 12, 2016

What are the powers and responsibilities of an executor?

An executor is responsible for the administration of an estate. The executor’s signature carries the same weight of the person whose estate is being administered. He or she must pay the deceased’s debts and then distribute the remaining assets of the estate. If any of the assets of the estate earn money, an executor must manage those assets responsibly. The process of doing so can be intimidating for an individual who has never done so before.

After a person passes away, the executor must locate the will and file it with the local probate office. Copies of the death certificate should be obtained and sent to banks, creditors, and relevant government agencies like social security. He or she should set up a new bank account in the name of the estate. All income received for the deceased, such as remaining paychecks, rents from investment properties, and the collection of outstanding loans receivable, should go into this separate bank account. Bills that need to be paid, like mortgage payments or tax bills, can be paid from this account. Assets should be maintained for the benefit of the estate’s heirs. An executor is under no obligation to contribute to an estate’s assets to pay the estate’s expenses.

An inventory of assets should be compiled and maintained by the executor at all times. An accounting of the estate’s assets, debts, income, and expenses should also be available upon request. If probate is not necessary to distribute the assets of an estate, the executor can elect not to enter probate. Assets may need to be sold in order to be distributed to the heirs. Only the executor can transfer title on behalf of an estate. If an estate becomes insolvent, the executor must declare bankruptcy on behalf of the estate. After debts are paid and assets are distributed, an executor must dispose of any property remaining. He or she may be required to hire an attorney and appear in court on behalf of the estate if the will is challenged. For all of this trouble, an executor is permitted to take a fee from the estate’s assets. However, because the executor of an estate is usually a close family member, it is not uncommon for the executor to waive this fee. If any of these responsibilities are overwhelming for an executor, he or she may elect not to accept the position, or, if he or she has already accepted, may resign at any time.


Monday, August 22, 2016

Who is responsible for injuries caused by animals?

While laws concerning responsibilities for injuries caused by animals vary from state to state, there are some consistencies. Most of the time, the owner of an animal can be considered liable for his or her animal's dangerous behavior. Therefore, once medical attention has been sought, if the victim is contemplating legal action, the name and contact information of the animal's owner should be obtained. If the injured party doesn't know the owner's name, the information can often be uncovered by quizzing neighbors or witnesses, and this data should be provided to a personal injury attorney.  

States Differ Regarding "Strict Liability" for Injuries Caused by Animals 

While in some states "strict liability" applies, meaning the owner of the animal is responsible for the animal's behavior whether or not the owner was negligent, in other states the owner is only held liable if he/she was aware of the animal's "dangerous propensities." This awareness is often difficult to assess, for example, is the size or breed of the animal enough to create a presumption of danger, even if the particular animal has always been well-behaved?

"Contributory Negligence" as Cause of Animal Injuries

Another factor to consider in cases of injuries caused by animals is whether the person injured played some part in the event.  A person who ignores a "Beware of Dog" sign, for example, or who climbs into a fenced yard where an animal is contained, is considered to have assumed a certain amount of risk. It is still the owner, however, who bears the burden of convincing the jury of such arguments.

 Animal owners can also defend themselves and their pets if the "victim" teased or threatened the animal before the attack took place. 

Other Parties Who May Be Held Responsible for Animal Injuries

 In certain situations, it is not the owner who is held accountable for the injury inflicted by the animal. This may occur in the following cases:

  1. When an animal keeper or sitter is responsible for the care of the animal, such as in a kennel, a pound, or when the owner is not at home, that person may be held responsible for the inflicted injury.
  2. When a person under the age of 18 years is the owner of the animal, the parents or guardians of the minor may be held responsible.
  3. When a property owner has allowed the animal onto his/her property, that property owner may be accountable for the behavior of the visiting animal.
  4. If the landlord of an apartment knew, or should have known, that a tenant possessed a dangerous animal, it is possible that the landlord may be held liable.

What Damages Can Be Recovered After an Injury Caused by an Animal?

The damages the victim of an animal injury is entitled to vary according the severity and circumstances of the injury, and may include:

  • Medical expenses
  • Lost wages
  • Pain and suffering
  • Property damage

There are even cases in which punitive damages will be awarded when an animal injury has taken place. This occurs when the owner, fully cognizant of the danger of the animal, allows it to run free or to be in contact with someone who is then attacked. Punitive damages are awarded not only to punish the owner and provide compensation to the victim, but to deter the defendant and others from engaging in similarly dangerous conduct.

 


Monday, August 15, 2016

How to calculate estate tax

In order to predict how much your estate will have to pay in taxes, one must first determine the value of the estate. To determine this, many assets might have to be appraised at fair market value. The estate includes all assets including real estate, cash, securities, stocks, bonds, business interests, loans receivable, furnishings, jewelry, and other valuables.

Once your net worth is established, you can subtract liabilities like mortgages, credit cards, other legitimate debts, funeral expenses, medical bills, and the administrative cost to settle your estate including attorney, accounting and appraisal fees, storage and shipping fees, insurances, and court fees. The administrative expenses will likely total roughly 5% of the total estate. Any assets that is bequeathed to charity through a trust escapes taxation, and the value of those assets must be subtracted from the total. Any assets transferred to a surviving spouse are not subject to taxation as long as your spouse is a US citizen.

If the net worth of an estate is less than the Federal and state exemptions, no taxes must be paid. However, the value of assets over the exemptions will be taxed. The amount over the exemptions is referred to as the taxable estate. A testator’s assets are taxed by the state in which the will is probated. Taxes paid by the estate to the state may be deducted for Federal tax purposes. The Federal exemption was $5.43 million in 2015 and is slated to increase in 2016. The top Federal estate tax rate in 2015 was 40%.

If an estate earns money while it is being administered and distributed, for example, if real estate is rented or businesses continue to operate, it will be necessary for the estate to complete a tax return and pay taxes on the income it receives. The net income of the estate can be added to the taxable portion of the estate if it is over the federal or state exemption. It is important to be aware that the laws surrounding estate taxes change frequently and require seasoned professionals to navigate, and to notify you if changes in the laws will affect your estate plan. 


Monday, August 8, 2016

How is workers' compensation different from personal injury?

The primary difference between a workers' compensation claim and a personal injury claim is that a personal injury claim is based on fault, while a workers' compensation case is not. Any injury that occurs to an employee at his/her workplace is covered by workers' compensation, regardless of any negligence or lack of it.

In order to recover damages against another person in a vehicular accident or slip and fall, on the other hand, one must be able to prove some type of negligence on the part of the other person. In other words, the other party must be in some way to blame for the accident. Examples in the cases mentioned would be reckless or drunk driving or poor property maintenance resulting in a floor surface that is irregular or slippery.

In Workers' Compensation Cases, Fault-Finding Is Not Necessary

With very few exceptions, employees who are injured on the job are entitled to workers' compensation benefits regardless of fault. Employees need not prove any negligence on the part of their employers in order to file for and receive workers' compensation benefits. As a matter of fact, employees are eligible to receive workers' comp benefits even if the employee's own negligence resulted in the injuries.

Differences in Damages in Workers' Comp Cases and Other Personal Injury Cases

If it seems that the nature of workers' compensation, in which you can be reimbursed at times for your own clumsiness, is too good to be true, it is. This is because, while workers' comp will pay you compensation for your medical bills, any necessary vocational rehabilitation, lost earning capability or permanent impairment, it will not pay for your personal suffering.  The cap on workers' comp benefits, therefore, is much lower than the typical personal injury settlement once blame is assigned.

When you file a personal injury lawsuit, you may be entitled to compensation for enduring pain and suffering, loss of enjoyment of life (hedonic damages), even damage to clothing or jewelry during the accident. In cases in which you can file for workers' comp, however, you have foregone the right to sue your employer or co-workers for negligence and also the right to collect damages for pain and suffering.

Are Any Workers Legally Permitted to Sue Their Employers?

Yes, there are two categories of employees who are allowed to sue their employers when they are injured on the job: crewmembers of ships or boats and interstate railroad workers. Although these two classes of workers are not entitled to workers' comp, they are allowed to sue their employers under the Jones Act, for ship employees, or the Federal Employers Liability Act (FELA), for interstate railroad workers. It should be noted that workers on commuter trains may not qualify for FELA. Employees who work on ships or railroads should be sure to contact an attorney familiar with pertinent laws before filing for compensation.


Monday, July 25, 2016

Should a Power of Attorney be a part of my Estate Plan?

Should a Power of Attorney be a part of my Estate Plan?

A durable power of attorney is an important part of an estate plan. It provides that, in the event of disability or incapacitation, a preselected agent can be granted power over the affairs of the individual signing the document. This power can be limited to specific decisions, like the decision to continue life sustaining treatment, or it can be much broader in scope to allow the agent power over the individual’s financial dealings.

Estate planning is meant to prepare for contingencies beyond an individual’s control. A traumatic accident could leave an individual without the ability to manage his or her own financial affairs. Debilitating diseases, like Alzheimer’s, can affect a person’s ability to make sound decisions for him or herself. In these scenarios, someone must be appointed to do make decisions on behalf of the incapacitated individual. Preparing a durable power of attorney as a part of an estate plan accomplishes three things. First, it gives the power of appointment to the individual, instead of to a judge. Second, it avoids the need for a potentially expensive court proceeding necessary to make that appointment. Finally, a power of attorney may be used to respond to time sensitive issues without waiting for a court hearing to grant an agent the power to act.

A power of attorney provides much flexibility for the individual signing it. It can take effect only upon disability, or right away, regardless of disability. It can specify what funds may or may not be used for. If a person does not want to live in an assisted living facility, he or she can make sure that money from his or her own bank accounts is not used for those purposes. Different assets can be managed by different agents. The power of attorney can give an agent power to distribute assets as gifts on a specific schedule to collaborate with an existing estate plan. The level of detail and amount of instruction that is possible as a part of the document is unlimited. It will always be quicker and more economical than a guardianship or conservatorship proceeding, and it will always serve the disabled person’s interests better than the broad powers granted to an individual by a court.


Monday, July 18, 2016

If an intruder gets hurt on my property, am I liable?

A landowner owes a duty of care to everyone who enters his or her property, regardless of whether that person is a trespasser, a licensee, or an invitee. This article is a discussion of the standard of care a homeowner must take for a person who has no permission to be on his or her property. It may not seem intuitive, but a person can be held responsible for injuries suffered by an intruder.

A homeowner is not permitted to set up dangerous traps for an intruder. A spring loaded gun set to fire on an intruder who opens a door is an example of such a trap. Burying landmines in the front lawn can lead to serious liability issues. Although these are extreme examples, any sort of trap set to purposely injure a potential trespasser is not permitted. The legal system does not tolerate violent self help as a means of protecting one’s land from criminal activity.

In some situations a homeowner may have a duty to warn a trespasser of potentially dangerous conditions. If a large hole exists on a property that is not obvious to a passerby, it may be a good idea to put up a sign letting people know of the hole’s existence. A sign in a window reading “beware of dog” can protect a landowner from liability if that dog mauls an intruder. It can also act as a deterrent, keeping would be thieves looking for another house to rob.

The most common way a homeowner is responsible for an intruder’s injuries is if their home contains an attractive nuisance. This is a potentially dangerous condition that may seem particularly inviting to trespassers. Trampolines, swimming pools, and swing sets can attract children onto a person’s property without invitation. Landowners must be aware that children who get hurt while playing on their property can sue for their injuries, even if they never had permission to be on the property. Even an empty pool can attract skateboarders participating in an inherently dangerous activity, creating liability for a homeowner. The best way to protect oneself from this liability is to build a tall fence to make it impossible for small children to trespass and to make it clear to older children that their presence is unwelcome.


Monday, July 11, 2016

When is a person unfit to make a will?

Testamentary capacity refers to a person’s ability to understand and execute a will. As a general rule, most people who are over the age of eighteen are thought to be competent to make and sign the will. They must be able to understand that they are signing the will, they must understand the nature of the property being affected by the will, and they must remember and understand who is affected by the will. These are simple burdens to meet. However, there are a number of reasons a person might challenge a will based on testamentary capacity.

If the testator of a will suffers from paranoid delusions, he or she may make changes to a testamentary document based on beliefs that have no basis in reality. If a disinherited heir can show that a testator suffered from such insane delusions when the changes were made, he or she can have the will invalidated. Similarly a person suffering from dementia or Alzheimer’s disease may be declared unfit to make a will. If a person suffers from a mental or physical disability that prevents them from understanding from understanding that a will is an instrument that is meant to direct how assets are to be distributed in the event of his or her death, that person is not capable of executing a valid will.

It is not entirely uncommon that disinherited heirs complain that a caretaker or a new acquaintance brainwashed the testator into changing his or her will. This is not an accusation of incapacity to make the will, but rather a claim of undue influence. If the third party suggested making the changes, if the third party threatened to withhold care if the will was not changed, or if the third party did anything at all to produce a will that would not be the testator’s intent absent that influence, the will may be set aside for undue influence. Regardless of the reason for the challenge, these determinations will only be made after the testator’s death if the will is presented to a court and challenged. For this reason, it is especially important for the testator to be as thorough as possible in making an estate plan and making sure that any changes are made with the assistance of an experienced estate planning attorney.


Monday, June 27, 2016

What is the burden of proof in a personal injury case?

“Burden of proof” refers to the requirement that a plaintiff must demonstrate to prevail in a lawsuit. In a criminal case, the burden of proof is “beyond a reasonable doubt,” meaning that the prosecutor must prove that a defendant is guilty to a degree that a reasonable person would not hesitate to think he or she committed the crime.

 In any civil case, however, the burden of proof is much easier to meet. In a personal injury lawsuit, the plaintiff must prove the facts in his or her favor by a preponderance of the evidence. This means that if the weight of the evidence is on one side, that side wins the case. It is a simple comparison. This is the reason why a person could be found not guilty of committing a crime, but still be held financially responsible for that crime. There are well known examples of cases in which those accused of murder won an acquittal in criminal court. When the victim’s families filed civil suits for wrongful death, however, the defendants were found liable. Even though the evidence presented in the criminal trials did not prove the defendants' guilt beyond a reasonable doubt, the preponderance of the evidence in the civil cases proved sufficient.

In every case, there are different elements that all must be proven by a preponderance of the evidence. For example, in a case for which a plaintiff claims that someone else’s negligence caused them an injury, that plaintiff must prove four separate elements. First, he or she must show that the defendant owed a duty to the plaintiff, second, that the duty was breached, third, that the plaintiff suffered an injury, and finally, that the defendant’s breach was the proximate cause of his or her injury. When there is a motor vehicle accident, the defendant’s duty is to follow the rules of the road and to drive safely. It is breached when the defendant fails to do so. A plaintiff also has to prove that he or she suffered real injuries and that those injuries are the result of the car accident. Without having proved all the elements of the case by a preponderance of the evidence, a jury will find against a plaintiff.


Monday, June 13, 2016

How does life insurance fit into my estate plan?

Life insurance can be an integral part of an estate plan. Policies can be set up to be paid directly to the beneficiary, without the need to pass through the estate, and without the need for any taxes to be paid. Having a life insurance policy ensures that some assets will be liquid, so that debts and expenses can be paid quickly and easily without the need to dispose of assets. Beneficiaries can be changed at any time as can the benefit amount. The policy can be used to accumulate savings if the plan is surrendered before death. Life insurance policies, especially those purchased later in life, can pay out significantly more than what was invested into them. There are many benefits to purchasing a life insurance policy as part of an estate plan.

An attorney can set up a life insurance trust to help avoid estate taxes. A life insurance trust must be irrevocable, cannot be managed by the policy holder, and must be in place at least three years before the death of the policy holder. Any money received from the life insurance trust is not a part of the taxable estate. The need for this is rare as the exemption for estate taxes is currently almost five and a half million dollars, but it is a useful tool for some nonetheless.

There is a limit to how much life insurance an individual is permitted to purchase. A person may carry a multiple of his or her gross income which reduces with age. A twenty five year old can buy a policy worth thirty times his or her annual income. A sixty five year old may only purchase ten times his or her annual income worth of life insurance. This is an important factor to consider when deciding whether life insurance should be a part of your estate plan.

Life insurance as a part of estate planning is a complicated issue. It makes sense to consult with an estate attorney and a tax professional before meeting with an insurance broker. Both can help an individual understand the benefits of insurance over other means of transferring assets.


Monday, June 6, 2016

Factors Used to Determine Fault in a Traffic Accident

When the courts are asked to determine liability in a personal injury case involving a traffic accident, one of the first things a jury is asked to consider is who is at fault for the accident. There are several factors that are taken into consideration when making that determination.

First and foremost, if any of the drivers involved in the accident were guilty of any traffic violation related to the accident, there is a good chance that the court will assign fault the driver guilty of the infraction. Common traffic violations related to traffic accidents include running red lights or stop signs, speeding, making improper turns, and texting while driving. Similarly, if any of the drivers is guilty of driving under the influence of drugs or alcohol, he or she is likely to be found at fault for the accident.

A police officer’s account of the accident is also important in determining which party is at fault. The police officer will interview witnesses, including the parties to the accident, and weigh conflicting stories to determine what actually happened to cause the accident. Tire marks on the road and the positioning of vehicles can help an officer come to a conclusion. Sometimes, video footage exists to eliminate any doubt as to what happened, either from someone’s dash cam or from a security camera. Police officers have experience and training to help them recreate accident scenes from the evidence available, but their reports are not perfect.

When an accident is the result of a rear end collision or a left hand turn, the officer is usually quick to assign blame to the car in the rear or the car turning left. The rule of thumb while driving is that the driver making a turn must wait for oncoming traffic to pass before turning. A driver must always cede the right of way to the traffic in front.

The role that the determination of fault plays depends largely on the laws of the state in which the accident occurs. Some states follow a doctrine of contributory negligence while some have a more lenient policy of comparative negligence. States that use contributory negligence may preclude a plaintiff from collecting any damages if his or her own negligence contributed to the accident at all. States that use a model of comparative negligence will reduce a jury’s award by the percentage of fault found to be the plaintiff’s. If a plaintiff has more than 50 percent fault, he or she cannot recover anything.


Monday, May 23, 2016

I wasn’t wearing my seatbelt. Can I still sue?

It is well accepted that wearing a seatbelt greatly reduces the risk of injury in an automobile accident. It is designed to keep a car’s occupant from being thrown around the passenger compartment or even ejected from the vehicle. It is significantly more dangerous to ride in an automobile without wearing one. That is why all cars are required to have them installed and almost every state has passed a law requiring drivers and passengers to wear their seatbelts. The answer to whether a person who fails to observe these laws can still collect money for injuries by filing a lawsuit depends entirely on the state.

In some jurisdictions, if an individual is not wearing a seatbelt, he or she may be barred from recovering any compensation for his or her injuries. These states are Alabama, Maryland, North Carolina, Virginia, South Dakota, and Washington DC. This is called contributory negligence.

In other states, a different system is used. A jury must determine what percentage of a plaintiff’s injuries were caused by the plaintiff’s failure to wear a seatbelt. The court will then reduce the award by that percentage. The states that follow this system are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington. This system is known as comparative negligence.

All other states use a hybrid system to determine whether or not a person can recover in a car accident when he or she was not wearing a seatbelt. If more than half of that individual’s injuries were caused by his or her failure to wear a seatbelt, he or she may not collect damages in court.

Even though the law varies from state to state, in every state, failure to wear a seatbelt can significantly reduce, or even completely bar, a person’s ability to recover damages and be made whole after a traffic accident. The law is meant to compensate a person for what he or she has lost through no fault of his or her own. The law says that failure to wear a seatbelt places some of that fault on the victim in a car accident.


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Lawrence M. Gordon, Attorney at Law, P.C. has offices in Bellmore, 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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