ESTATES AND TRUSTS
I. Do I need a Will? The common misconception among clients is that the preparation of a Last Will and Testament is mandatory in order to transfer the assets of one's estate. While a Will is an important part of the estate planning procedure, it is by no means mandatory. A Will transfers an asset that was held in the decedent's name alone. Assets such as jointly held property with the right of survivorship, bank accounts held "in trust for" and life insurance policies which name a specific beneficiary are not part of the decedent's testamentary estate but pass by operation of law. Often, the bulk of one's estate may pass to a surviving spouse by operation of law by joint ownership of bank accounts or tenancy by the entirety of real property.
It is important for an attorney to make a preliminary assessment as to the nature of the decedent's assets and the manner by which they will pass. Even if the decedent did prepare a Will prior to death, it may not be necessary to probate it if most of the assets pass by operation of law.
When the decedent has left a Will, the estate attorney must determine whether the Will is valid under New York law and meets the statutory requirements for admission to probate. Any person over 18 years of age and of sound mind and memory may execute a Will. The following factors are examined to determine whether a person who made the Will possessed the necessary testamentary capacity: (1) Whether the individual understood the nature and consequences of executing the Will; (2) Whether the individual knew the nature and extent of property to be distributed after death; and (3) Whether the individual knew those who would be considered the natural objects of the person's bounty and that person's relationship with them. Old age, physical weakness and infirmity or failing memory are not necessarily inconsistent with testamentary capacity.
II. Legal Guardian of Children. If it is determined that most of the client's assets would not pass through a Will, it is important that a client with children under 18 years of age understand that the Will is a guide as to the person or persons who will care for the child upon the death of the parent. The naming of a guardian in a Will assists the Court in determining who should care for the person and property of the children upon the death of the parent. Failing to name a guardian of the children will result in the Court having to make a determination without the benefit of the parent's guidance.
III. Estate Taxes. Even though a Will may not need to be probated if the bulk of the assets are transferred by operation of law, an estate tax is computed by marshaling all assets owned by the decedent as of the date of death. Charitable and marital deductions and the costs of administering the estate as well as other allowable deductions are subtracted from the gross estate to determine the taxable estate. A federal estate tax may be due and owing if the value of the taxable estate exceeds $1,500,000.00 in 2004 and 2005, $2,000,000.00 in 2006-2008, $3,500,000.00 in 2009, No limit in 2010 and $1,000.000.00 in 2011. While the estate may not be subject to federal estate tax, New York State estate tax may be owed if the taxable estate exceeds $1,000,000.00.
CORPORATE LAW/COMMERCIAL LITIGATION
If you are thinking about starting your own business, one of the most important initial decisions is the formation of a business organization depending on the client's fundamental business objectives, the interest to be served by the business, the roles to be played by each participant and the contribution to be made by each participant. The four basic forms of business organization from which persons wishing to start a business may choose: (1) Sole Proprietorship; (2) Partnership; (3) Corporation; and (4) Limited Liability Company.
During an initial meeting, the attorney must identify specific characteristics that vary among the different business forms: (1) Owner Liability; (2) Capital Formation; (3) Duration and Termination; (4) Growth Potential; (5) Ease of Transfer of Interest; (6) Cost of Formation; (7) Taxes; and (8) Qualification as a Foreign Business (a business formed outside New York) to do business in New York.
If you are currently in a business organization or are thinking about starting your own business, please contact our office to arrange a mutually convenient date and time to discuss your goals and requirements.
PERSONAL INJURY
If you have been injured as a result of motor vehicle accident, slip and fall, defective product or medical malpractice, you may be eligible for a substantial money award. Our office has recovered millions of dollars on behalf of clients who sustained personal injury and property damage. We take great pride in preparing every case aggressively and expertly which enables us to obtain substantial settlements prior to trial.
We welcome the opportunity to discuss the merits of your case and to assess the potential for your recovery of a monetary award.
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