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Garden City, NY Estate Planning & Complex Litigation Blog

Monday, October 2, 2017

How a Prenuptial Agreement Can Protect Your Estate

There are many circumstances that can impact an estate plan, not the least of which is divorce. While ending a marriage is complicated, it is not only crucial to arrive at a fair and equitable distribution of the marital assets, but to preserve your estate as well.

While the laws vary from state to state, it is important to understand the difference between separate and marital property. Generally, separate property includes any property owned by either spouse before the marriage, as well as gifts or inheritances received by either party prior to or after the marriage.

Marital property, on the other hand, is any property that is acquired during the marriage such as houses, cars, retirement plans, 401(k)s, IRAs, life insurance, investments and closely held business, regardless of who owns or holds title to the property.


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Tuesday, September 26, 2017

How Title Insurance Protects Homebuyers

Buying a home is the single largest investment that many individuals will make which makes it essential for potential homeowners to protect their interests. In particular, it is crucial to ensure that the seller can transfer free and clear ownership of the property by obtaining title insurance.

In short, title insurance protects both lenders and owners against claims for unknown defects in title to the property such as another individual claiming ownership of the property, unpaid taxes, judgments and liens, improperly recorded documents, encroachments and easements, as well as fraud and forgery.

In a residential real estate transaction, there are two types of policies, a lender's policy and a buyer's policy, and the homebuyer is required to pay for both. The lender's policy, or mortgagee's policy, specifically protects the lender's interest, including the loan amount and legal costs. The buyer's policy protects the owner up to the original sales price of the property, or its full market value, depending on the type of policy the buyer purchases.

In order to obtain title insurance, it is necessary to engage the services of an escrow agent, or an attorney, who will order a title search. This is a comprehensive examination of public records associated with the property such as deeds, taxes, court records - judgments, bankruptcies, wills, trusts, divorce decrees and other documents.

The title company will rely on the results of this search to issue a preliminary report, or a title commitment, which details the potential defects and outlines the conditions that must be met before a policy can be issued. This report gives the seller the opportunity to remedy any liens or other encumbrances before the loan closing, or in the alternative, from the proceeds of the sale.


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Friday, September 15, 2017

What are My Legal Options as a Passenger Injured in a Car Accident?

Being injured in a car accident can feel like life as you know it has come to a screeching halt. It is emotionally traumatic. You are physically injured and in pain. These types of things follow you long after you leave the crash site. In addition to all of this, you are facing mounting medical bills and possible lapses in income due to missed work. Drivers may worry that they will be found at fault for the accident. What about passengers? Passengers do not have to worry about being found at fault for an accident, but, as a passenger, you may still worry about whether or not you will be compensated for your injuries and who will pay your personal injury claim.

As an Injured Passenger, What Can I be Compensated for?


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Friday, September 1, 2017

What is Settlement Planning?

Settlement planning is a unique and expanding area of law that is designed to help individuals preserve benefits that have been received from a personal injury settlement, inheritance or judgment. The practice encompasses an array of legal services such as special needs planning, estate planning and financial planning. The objective is to assist clients with resolving claims and to create a structure to properly manage the funds.

Settlement planning is particularly designed for minors, individuals with disabilities, adults who lack capacity and individuals who are receiving public benefits. Without careful planning, those who receive a large settlement or other proceeds may have difficulty managing these funds. In addition, individuals who receive benefits may lose their eligibility for vital government aid.  


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Friday, August 25, 2017

How to Negotiate a Commercial Real Estate Lease

There are number of considerations for business owners involved in negotiating a commercial lease, not the least of which is the fact that the main objective of landlords is to maximize profits. By understanding the following fundamental concepts, it is possible to make a good deal.

Market Conditions

First, understanding the market conditions for commercial properties is crucial. Generally, pricing is based on square footage, but there is a difference between "usable" square feet and "rentable" square feet.

Rentable square feet is the actual measurement of the space that is being leased. However, rates are typically quoted based on usable square feet which combines the space with a percentage of common areas such as lobbies, hallways, stairways and elevators.


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Tuesday, August 15, 2017

What are Letters Testamentary?

An individual who has been named as a personal representative or executor in a will has a number of important duties. These include gathering the deceased person's property and transferring it to the beneficiaries through a court-supervised process known as probate. In order to initiate this proceeding, the executor must first obtain what are referred to as letters testamentary. This document gives the executor the legal authority to administer the deceased person's estate.

While the process varies from state to state, the executor must petition the probate court in the county in which the decedent lived. This typically requires submitting the death certificate and completing a short application. The application includes a sworn statement that the person has been named as the executor in the will, as well as an estimate of the estate's property and debts.

The probate court will then hold a hearing to verify that the individual meets the qualifications to act as executor. Generally he or she must be a mentally competent adult and not be a convicted felon. If approved, the court will issue letters testamentary and officially open probate.


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Wednesday, August 2, 2017

What Do You Do If You Are Hit by an Uninsured Motoroist

In 2015, an estimated 13% of drivers on U.S. roads were uninsured, according to the Insurance Information Institute. That means that as many as 1 in every 10 drivers you see on roads across the country do not have insurance to provide coverage for your injuries should you be involved in a car crash with them. This is a scary thought. Know your options for seeking compensation for your injuries in the event you are hit by an uninsured driver.


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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.


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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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