Share

Garden City, NY Estate Planning & Complex Litigation Blog

Wednesday, July 29, 2015

If you're over 70 and have considerable assets, should you consider Medicaid Planning?

There are many factors to consider when deciding whether or not to implement Medicaid planning.  If you’re in good health, now would be the prime time to do this planning. The main reason is that any Medicaid planning may entail using an irrevocable trust, or perhaps gifts to your children, which would incur a five-year look back for Medicaid qualification purposes. The use of an irrevocable trust to receive these gifts would provide more protection and in some cases more control for you.

As an example, if you were to gift assets directly to a child, that child could be sued or could go through a divorce, and those assets could be lost to a creditor or a divorcing spouse even though the child had intended to hold those assets intact in case they needed to be returned to you. If instead, you had used an irrevocable trust to receive the gifted assets, those assets would not have been considered the child’s and therefore would not have been lost to the child’s creditor or a divorcing spouse. You need to understand that doing this type of planning, and using the irrevocable trust, may mean that those assets are not available to you and therefore you need to be comfortable with that structure.

Depending upon the size of your estate, and your sources of income, perhaps you have sufficient assets to pay for your own care for quite some time. You should work closely with an attorney knowledgeable about Medicaid planning as well as a financial planner that can help identify your sources of income should you need long-term care. Also, you should look into whether or not you could qualify for long-term care insurance, and how much the premiums would be on that type of insurance.


Friday, July 17, 2015

Common Claims in Personal Injury Cases

There are a number of issues that can come up in a personal injury case.  Every personal injury case will include a claim for compensatory damages, meant to compensate the plaintiff for any loss.  It is important to include all claims that apply in a lawsuit because, if one is omitted, there is no second chance to reopen the case.  Some of the most common types of compensatory damages include:

Property damage:  If personal or real property is damaged as a result of an action of the defendant, the plaintiff can include a claim for property damage.

Medical costs:  Any out of pocket medical bills should be reimbursed as part of a lawsuit.  If an insurance company paid medical bills, they may assert a right to be reimbursed out of the proceeds of any personal injury settlement.

Pain and suffering:  This is meant to address the physical, mental, and emotional anguish that comes with being the victim of an accident.  In many cases, the path to rehabilitation and recovery is difficult, painful, and frustrating.  A victim should be compensated, at least in part, for the interruption of their lives.

Permanent injury:  Often, despite the doctors’ best efforts, a patient is left with permanent pain or the loss of function of a body part after treatment is complete.  Even though it is impossible to assess the value of this monetarily, the courts will try their best to put a number on it and compensate plaintiffs accordingly.

Lost wages:  A claim for lost wages seeks to recover money for any work that was missed as a result of an injury.  The lost work may have occurred immediately after the accident, or may have accrued over a period of time, including any days missed to receive treatment.

Loss of consortium:  After a serious injury, many aspects of a victim’s life change.  If his or her ability to be intimate with a spouse is affected, a claim of loss of consortium may be included in the complaint.  It does not matter if the problem is a physical one or a psychological one.


Monday, July 6, 2015

Estate Planning for the Chronically Ill

There are certain considerations that should be kept in mind for those with chronic illnesses.   Before addressing this issue, there should be some clarification as to the definition of "chronically ill." There are at least two definitions of chronically ill. The first is likely the most common meaning, which is an illness that a person may live with for many years. Diseases such as diabetes, cardiovascular disease, lupus, multiple sclerosis, hepatitis C and asthma are some of the more familiar chronic illnesses. Contrast that with a legal definition of chronic illness which usually means that the person is unable to perform at least two activities of daily living such as eating, toileting, transferring, bathing and dressing, or requires considerable supervision to protect from crisis relating to health and safety due to severe impairment concerning mind, or having a level of disability similar to that determined by the Social Security Administration for disability benefits. Having said all of that, the estate planning such a person may undertake will likely be similar to that of a healthy person, but there will likely be a higher sense of urgency and it will be much more "real" and less "hypothetical."

Most healthy individuals view the estate planning they establish as not having any applicability for years, perhaps even decades. Whereas a chronically ill person more acutely appreciates that the planning he or she does will have real consequences in his or her life and the life of loved ones. Some of the most important planning will center around who the person appoints as his or her health care decision maker and also who is appointed to handle financial affairs. a will and/or revocable living trust will play a central role in the person's planning as well.  Care should also be taken to address possible Medicaid planning benefits.  A consultation with an estate planning and elder law attorney is critical to ensuring all necessary planning steps are contemplated and eventually implemented. 


Tuesday, June 30, 2015

Would transferring your home to your children help avoid estate taxes?

Before transferring your home to your children, there are several issues that should be considered. Some are tax-related issues and some are none-tax issues that can have grave consequences on your livelihood. 

The first thing to keep in mind is that the current federal estate tax exemption is currently over $5 million and thus it is likely that you may not have an estate tax issue anyway. If you are married you and your spouse can double that exemption to over $10 million. So, make sure the federal estate tax is truly an issue for you before proceeding.

Second, if you gift the home to your kids now they will legally be the owners. If they get sued or divorced, a creditor or an ex- in-law may end up with an interest in the house and could evict you. Also, if a child dies before you, that child’s interest may pass to his or her spouse or child who may want the house sold so they can simply get their money.

Third, if you give the kids the house now, their income tax basis will be the same as yours is (the value at which you purchased it) and thus when the house is later sold they may have to pay a significant capital gains tax on the difference. On the other hand if you pass it to them at death their basis gets stepped-up to the value of the home at your death, which will reduce or eliminate the capital gains tax the children will pay.

Fourth, if you gift the house now you likely will lose some property tax exemptions such as the homestead exemption because that exemption is normally only available for owner-occupied homes.

Fifth, you will still have to report the gift on a gift tax return and the value of the home will reduce your estate tax exemption available at death, though any future appreciation will be removed from your taxable estate. 

Finally, there may be more efficient ways to do this through the use of a special qualified personal residence trust.  Given the multitude of tax and practical issues involved, it would be best to seek the advice of an estate planning attorney before making any transfers of your property.


Friday, June 26, 2015

Just Discovering Your Injury: Do You Still Have a Claim?

A person worked with certain chemicals for many years and has just been diagnosed with cancer as a result of this exposure.  Or a person went in for surgery a long time ago and has just been alerted to the fact that someone left a surgical sponge inside them.  The point is that some injuries can remain unknown for long periods of time before they begin to have an effect or the person becomes aware of their existence.  These are called latent injuries and they are quite common.  If you have suffered a latent injury and have just discovered it, you might be worried that it is too late to make a claim.  Luckily, this is usually not the case.

A statute of limitations is the time period in which a claim can be filed.  After the statute of limitations has expired, no case can be brought as it is considered time barred.  Each type of claim has its own proscribed time limit and these vary from state to state and on the Federal level. Although most personal injury claims are subject to a statute of limitations, the law provides an exception for latent injuries

Usually, the statute of limitations begins to run at the time that the injury occurred.  This could cause a problem for someone who was unaware of his or her injury and is just discovering it now.  Some people do not become aware of their injuries until years after the statute of limitations has expired.  This is where the exception comes into play.  The law tolls or delays the start of the statute of limitations until the person knew or should have known of the injury.  This is an objective standard so the courts will consider what is reasonable under the circumstances in each case.  If reasonable, this exception allows a person who has just discovered his or her injury to make a claim even if they are well past the statute of limitations period. 

If you have been injured or suffered some type of harm and are just discovering it now, and you want to determine if you can make a claim, it is your best interest to contact a qualified personal injury attorney today.


Tuesday, June 23, 2015

Is There Anyway a Disinherited Child Could Receive an Inheritance From an Estate?

If your estate plan and related documents are properly and carefully drafted, it is highly unlikely that the court will disregard your wishes and award the excluded child an inheritance.  As unlikely as it may be, there are certain situations where this child could end up receiving an inheritance depending upon a variety of factors.

To understand how a disinherited child could benefit, you must understand how assets pass after death.  How a particular asset passes at death depends upon the type of asset and how it is titled. For example, a jointly titled asset will pass to the surviving joint owner regardless of what a will or a trust says. So, in the unlikely event that the disinherited child was a joint owner, that child would still inherit the asset because of how it was titled.

Similarly, if you left that disinherited child as a named beneficiary on a life insurance policy or retirement plan asset, such as an IRA or 401k, that child would still receive some of the benefits as the named beneficiary even if your will stated they were to take nothing. Another way such a "disinherited" child might receive a benefit is if all other named beneficiaries died before you.

So, assume you have three children and you wish to disinherit one of them and you state you want all of your assets to go to the other two, and if they are not alive, then to their descendants.  If those other two children die before you and do not have any descendants, there may be a provision that in such a case your "heirs at law" are to take your entire estate and that would include the child you intended to disinherit.

If you wish to disinherit a child, all of these issues can be addressed with proper and careful drafting by a qualified estate planning lawyer.  


Monday, May 25, 2015

What Happens if I Lie about Being Injured?

Most of us have told a little white lie; even if we are caught, there are usually no consequences. That is not the case if you are involved in a lawsuit. Lying under oath is a crime called perjury, and it can result in jail time.

Lying or providing knowingly false or misleading information can lead to other consequences as well. You might be subject to monetary fines or lose your professional license. It could also result in your lawsuit being dismissed.

When a lie has been told, the key piece of information the court is going to be interested in is the state of mind behind the lie or misrepresentation. In order to be guilty of perjury, you must have intentionally lied. Having an honest lapse of memory, or only remembering a specific detail after something jogs your memory is not likely to get you into trouble. Telling a lie or purposely leaving out key information in order to mislead is more serious, but even that does not guarantee you are going to end up in jail.

Even if your case has not proceeded to trial, lying about your injury (or leaving out information you should have disclosed) can constitute insurance fraud. This can also lead to criminal charges. Fraudulent claims can result in loss of insurance coverage and being liable to the insurance company for any monetary awards or costs of investigation.

If you realize that you lied, or didn’t tell the whole truth, in a current or past legal action the best thing to do is to contact your lawyer. They can help you figure out what, if any, corrective action needs to be taken.

Although lying is a part of life for most people, the truth, the whole truth, and nothing but the truth is the only thing you should be telling any time you are under oath or talking with your own lawyer in private.


Monday, May 18, 2015

Executors Fees

An executor's fee is the amount charged by the person who has been appointed as the executor of the probate estate for handling all of the necessary steps in the probate administration. Therefore, if you have been appointed an executor of someone’s estate, you might be entitled to a fee for your services.  This fee could be based upon a variety of factors and some of those factors may be dependent upon state, or even local, law.

General Duties of an Executor

  1. Securing the decedent's home (changing locks, etc.)
  2. Identifying and collecting all bank accounts, investment accounts, stocks, bonds and mutual funds
  3. Having all real estate appraised; having all tangible personal property appraised
  4. Paying all of the decedent’s debts and final expenses
  5. Making sure all income and estate tax returns are prepared, filed and any taxes paid
  6. Collecting all life insurance proceeds and retirement account assets
  7. Accounting for all actions; and making distributions of the estate to the beneficiaries or heirs.

This list is not all-inclusive and depending upon the particular estate more, or less, steps may be needed.

As you can see, there is a lot of work (and legal liability) involved in being the executor of an estate.  Typically the executor would keep track of his or her time and a reasonable hourly rate would be used. Other times, an executor could charge based upon some percent of the value of the estate assets. What an executor may charge, and how an executor can charge, may be governed by state law or even a local court's rules. You also asked whether the deceased can make you agree not to take a fee. The decedent can put in his or her will that the executor should serve without compensation but the named executor is not obligated to take the job. He or she could simply decline to serve. If no one will serve without taking a fee, and if the decedents will states the executor must serve without a fee, a petition could be filed with the court asking them to approve a fee even if the will says otherwise. Notice should be given to all interested parties such as all beneficiaries.

If you have been appointed an executor or have any other probate or estate planning issues, contact us for a consultation today.


Monday, May 11, 2015

Weight Lifting Injuries at the Gym: Who Is Liable?

Working out at a gym is usually good for your health, but not always. Perhaps you lifted more weight than you could handle. Or a piece of strength training equipment malfunctioned. Or the gym staff failed to instruct or spot you properly. Can you hold the gym owners or others liable for damages?

There have been many cases in which plaintiffs have successfully sued gyms, sports clubs, Pilates studios and other exercise facilities for their injuries. Even if the gym owners were not aware of an unsafe condition, they may be liable if proper inspection would have uncovered it. Sometimes you may also be able to bring a product liability lawsuit against companies and individuals responsible for the design, manufacture, sale or distribution of a potentially dangerous exercise machine or its components.

Equipment malfunctions are not the only basis for gym liability. You may be able to sue a gym for poor instruction or supervision. If an unqualified staff member imposed excessive demands, provided improper instruction or did not warn of potential risks, the gym itself could be liable for muscle injuries or other harm.

One hurdle to overcome is the liability waiver that most gym members must sign when they join, promising not to sue if they are injured at the gym. Some courts have upheld these waivers, but there are also occasions when lawsuits are allowed to proceed despite a signed waiver.

• Gross negligence. Short of intentional harm, "gross negligence" is a form of reckless disregard for safety. For example, if gym employees were informed repeatedly that a piece of weight lifting equipment was not working properly and continued to allow people to use it without fixing it, that might constitute gross negligence.

• Vagueness. If the language in a liability waiver is so ambiguous that no one could reasonably be expected to make sense of it, a court may disregard it. Most well-established gyms use carefully vetted forms, however.

If you are injured, you should immediately report the incident to the gym and ask for a copy of any report prepared by the gym staff. You can show that document, along with any photographs you may have of any equipment involved, to a lawyer. Contacting an experienced personal injury attorney can help you decide if you have a case to pursue.


Monday, April 27, 2015

Top 3 Real Estate Tips for Small Businesses

The only real estate transaction most small businesses engage in is to enter into a lease for commercial space. Whether you are considering office, manufacturing or retail space, the following three tips will help you navigate the negotiation process so you can avoid costly mistakes.

“Base Rent” is Not the Only Rent You Will Pay

Most prospective tenants focus their negotiation efforts on the “base rent,” the fixed monthly amount you will pay under the lease agreement. You may have negotiated a terrific deal on the base rent, but the transaction may not be the best value once other charges are factored in. For example, many commercial lease agreements are “triple net,” meaning that the tenant must also pay for insurance, taxes and other operating expenses. When negotiating “triple net,” ensure you aren't being charged for expenses that do not benefit your space, and that you are paying an amount that is in proportion to the space you utilize in the building. Another provision to watch for is tenant's responsibility to also pay a pro rata share of increases in real estate taxes. 

There’s No Such Thing as a “Form Lease”

Most commercial property owners and managers offer prospective tenants a pre-printed lease containing your name and various terms. They present these documents often with a rider, and adamantly explain that it is the landlord’s “typical form lease.” This, however, does not mean you cannot negotiate. Review every provision in the agreement, bearing in mind that all terms are open for discussion and negotiation. Pay particular attention to the specific needs of your business that are not addressed in the “form lease.”

Note the Notice Requirements

Your lease agreement may contain many provisions that require you to send notices to the landlord under various circumstances. For example, if you wish to renew or terminate your lease at the end of the term, you will likely owe a notice to the landlord to that effect, and it may be due much earlier than you think – sometimes up to a year or more. Prepare a summary of the key notice requirements contained in your lease agreement, along with the due dates, and add key dates to your calendar to ensure you comply with all notice requirements and do not forfeit any rights under your lease agreement.

 


Monday, April 20, 2015

Importance of Credible Accident Reconstruction Testimony

If you have been injured in an automobile collision, your attorney may require the assistance of an experienced accident expert to help prove who is at fault for the accident. Generally, in order to recover any compensation for your injuries or property damage, you will have to prove that the other party was somehow negligent. Accident reconstruction experts are professionals who have obtained specialized training in order to analyze the physics of the accident scene, determine vehicle speeds and movements, and effectively communicate their findings to the court or insurance company representatives.

These professionals come from a variety of backgrounds, including science education, engineering, or law enforcement who have undertaken special training. These experts can evaluate the scene of the accident, develop calculations and assessments regarding how the accident occurred or how damages were sustained, and can testify to these facts and findings before a judge or jury. They do so by offering a variety of services, including site visits to the scene of the accident, taking photos, interviewing witnesses, applying the applicable scientific principles and preparing a final report. That report often forms basis for the expert’s testimony in court. Generally, the importance of the accident reconstructionist’s testimony is directly tied to the complexity or controversial nature of the accident in question.

Expert testimony regarding how an accident occurred is key to settlement negotiations. Using illustrations, simulations, models, animations and other methods, accident reconstructionists can show exactly what happened, how it happened, and how it could have been prevented.  Even if there are photographs of crash scenes and medical records, these can usually demonstrate the severity of the accident or damages sustained rather than proving who was at fault.

Usually, both sides hire their own reconstruction experts and, not surprisingly, those reports often conflict with one another. When this happens, the experts' credibility becomes a key issue. As in every case where there is conflicting testimony, the decision-makers must make a determination regarding which expert to believe.


Archived Posts

2019
December
November
October
September
August
July
June
May
April
March
February
January
2018
December
November
October
September
August
July
June
May
April
March
February
January
2017
December
November
October
September
August
July
June
May
April
March
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
2013
December
November
October
September
August
July
June
May
April
March
February
January
2012


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.



© 2020 Lawrence M. Gordon, Attorney at Law, P.C. | Attorney Advertising
300 Garden City Plaza, Suite 450, Garden City, NY 11530
| Phone: 516-333-5000 | 800-628-1620

Practice Areas

Law Firm Website Design by
Zola Creative