Individualized and Personalized Legal Services at an Affordable Cost
Residential Real Estate
For many, buying a home is the most expensive purchase one will ever make, and there can be a significant monetary down payment at stake. It can also be a confusing process for many people, especially first time home-buyers. Those selling a home have their own specific questions and concerns, and getting to the closing table is sometimes a complicated process.
- You need a real estate attorney who has the experience and who will take the time to explain the home-buying process in language you can understand.
- You need a real estate attorney who will take the time to answer your questions because you have a right to fully understand every aspect of your real estate transaction.
- You need a real estate attorney who knows the area, knows the people involved in real estate transactions, and knows the local customs and practices.
- You need a real estate attorney who can help make sure you have access to all the information you need when making a decision.
Finally, you need a real estate attorney who will handle your transaction personally, being aware of every minute detail that makes it "your" transaction.
Involving your real estate attorney early in the process will ensure a smooth transaction.
Estate Planning
Discussing with an attorney how your assets are to be distributed after your death can be a somber experience. However, by failing to properly plan one's estate, one can unknowingly and unintentionally cause loved ones much unnecessary and additional stress as they resolve issues that were easily preventable. There are many reasons why estate planning is so important for you, and your loved ones.
- Beneficiaries- When you plan your estate, you get to decide who will, or will not, inherit the estate's assets. You can determine how your beneficiaries will be able to access their inheritance, which is especially appropriate if you believe a particular beneficiary should not have immediate access to a large sum of money. You can also determine if certain assets are to be sold and the proceeds of the sale are to be utilized or invested in a certain manner, or even given to a charity.
- Children- If you have children, you need to decide who will care for them in your absence. One way to accomplish this is to name a guardian for any minor children, and a trustee for any trusts that you have already created or intend to create upon your death to provide financial support for your surviving children.
- Tax Liability- For some clients, a large part of estate planning is minimizing the potential tax liability facing heirs. However, bear in mind that over 99% of estates have no federal tax liability due to the current federal estate and gift tax exemption levels. For example, for decedents dying in 2020, a single individual has an $11.58 million dollar exemption, and married couples can shield $23.16 million from federal estate and/or gift tax. So, for many, tax liability concerns do not drive their estate planning decisions.
- Dissatisfied Heirs and the Accidental Administrator- If you die in New York without a valid will in place, the law governs two important areas of the administration process. First, it dictates how your estate will be distributed to your heirs. Second, the law sets forth the person, in a specific order or priority based on a defined relationship, who is eligible to serve as your estate's "administrator" and file a petition in Surrogate's court to administer your estate. If you die without a will, you will have had no say in how your assets are distributed and who will administer your estate upon your death.
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Make an inventory of your assets
It's a good idea to make an inventory of your physical assets, such as tangible personal property, as well as any non-physical assets, such as any IRAs, 401(k), brokerage or bank accounts. Keep these inventories updated. This will save your estate money and time, and time is money.
Probate and Estate Administration
If you are named as the Executor in a will, you have an important role to play in the administration of the estate, otherwise known as the probate process. On the other hand, if a family member died without a will in place, an administration proceeding must be commenced where someone must petition the court to become the Voluntary Administrator of the estate. In both cases the process is similar in that the person appointed by court order, whether they be an Executor or an Administrator, is a fiduciary who has specific legal obligations owed to the estate. These obligations include marshaling the assets of the estate, sometimes liquidating the assets, satisfying the liabilities of the estate, and then distributing what is left, either in accordance with the provisions of the will or New York law.
Understanding the Probate Process
Once the original will is located it can be offered for probate. The term probate describes the judicial process where a will is proved in a court of law and is deemed to be a valid public document that is the true last will and testament of the person who is deceased, often referred to as the decedent. In New York State, a probate proceeding is brought in the Surrogate's Court in the county where the decedent was domiciled at the time of death. The court will issue Letters Testamentary, which authorize the Executor named in the will to collect and distribute the decedent's assets, after paying the debts of the estate, according to the terms of the will. This process is known as settling the estate.
The Administration Proceeding
An administration proceeding is the process that applies when a person dies intestate, or without a will, although it is not uncommon for the term administration to also be used to refer to settling an estate where the decedent left a will. An administration proceeding commonly occurs when someone dies without leaving a will, but it can also occur when a will is denied probate for any number of possible reasons, or when a person dies with a will but a full probate proceeding is not required by the law. For example, if someone dies with a will but leaves less than $50,000.00 of personal property, a small estate proceeding may be commenced. This type of proceeding is considered an administrating proceeding and is less costly than a full probate proceeding. However, if the decedent owned any real property in their name alone, such as a home or land, a small estate proceeding is not an option. In a true administration proceeding, the court will issue what are called Letters of Administration instead of Letters Testamentary.
Do I Need an Attorney to Assist me with the Probate or Administration of an Estate?
Below are some reasons why you should consider hiring an attorney to help you navigate the process:
Legal Expertise- The process of probate or administration in New York State can be a complicated one depending on the nature of the estate. Many legal documents must be submitted to the court and those containing errors will likely be rejected, causing delay and unnecessary expense. There are many questions that must be answered along the way. Did the decedent die owning real property in another state? Are there missing heirs that must be located? Could an heir contest the will? Where was the decedent domiciled and in what court should the petition for probate be filed? Does the estate have a potential cause of action, such as a wrongful death claim, which must be preserved?
Minimizing Conflict- A death can often exacerbate tensions within the family. Some beneficiaries may feel that they are not receiving the money or property they are entitled to, and an Executor unassisted by an attorney must resolve these conflicts alone. Involving an attorney in the process early on can lend more transparency and clarity to the process, thereby reducing conflict. Keeping all of the beneficiaries appraised of the process also reduces the chance of conflict.
Avoiding Lawsuits- Minimizing conflict can avoid lawsuits. Other potential litigation in an estate proceeding can involve accounting contests, creditor's claims against the estate, will contests and claims of a breach of fiduciary duty against the Executor. Oftentimes, the proper legal advice can protect an Executor from these types of lawsuits.
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Provide frequent progress updates to all beneficiaries
It's always a good idea for the Executor or Administrator of the estate to provide well documented progress updates to all beneficiaries. This will provide transparency to the process and hopefully prevent allegations of differential treatment of beneficiaries.
Landlord Tenant Law
Drafting and Reviewing Residential Lease Agreements
Whether you are a landlord or a tenant, the law gives you certain rights and obligations when entering into a lease agreement for an apartment, single-family home, or commercial property. A lease agreement, which can be legally binding for a year or possibly more, is the foundation of the (potentially long term) landlord/tenant relationship. This is a document you need done correctly, the first time, because you will have to live with the final product once the lease is signed. Whether you are the landlord or the tenant, the attorney drafting or reviewing a proposed lease agreement should make every effort to ensure that the terms of the lease agreement are terms you understand and can live with, literally. Having a well-drafted and carefully prepared lease agreement that conforms to the law can minimize the possibility of a landlord/tenant dispute down the road. In the event of a dispute, a well-drafted lease can resolve the dispute in your favor. A poorly drafted lease can cause unnecessary expense and, for a landlord, issues with the eviction process and getting a new tenant in the property.
Many landlords believe drafting a lease is as simple as downloading a lease from the internet, or purchasing a sample lease at an office supply store, and filling in some blanks. Nothing could be further from the truth. Time and time again, landlords who attempt to 'go it on their own' when drafting a lease spend far more money, in inevitable legal fees, court costs, and lost rental income, when forced to deal with the problems created by that simple lease they made without any legal guidance. These landlords often end up wishing that they had hired an attorney to sit down with them, discuss the issues, explain the law, and draft a lease that is appropriate for the landlord's situation, because this course of action would have been, in the end, the less expensive option.
Many 'internet' leases contain provisions which violate current New York landlord/tenant law, despite the fact that the lease is labeled as appropriate for use in New York State. Finally, if you look long enough at these on-line lease agreements, there is always a disclaimer that says that the publisher is not giving legal advice and the user (i.e. landlord) assumes full responsibility for any costs or consequences associated with the use of their document.
Landlord Tenant Disputes and the Eviction Process
If you signed a lease agreement and believe the other party is not living up to their terms of the deal, you should get an experienced landlord-tenant attorney involved in the matter sooner rather than later. Whether you are the landlord or the tenant, you may have specific legal rights or responsibilities that are time sensitive and must be addressed. Not every landlord/tenant dispute has to wind up in court, and it may be possible to settle the case before involving the court system. This will save you money, time and potential aggravation.
An experienced landlord/tenant attorney will guide you in this decision-making process and give you the best advice for your particular situation. When you do have to go to court, bear in mind that the New York State Housing Stability and Tenant Protection Act of 2019, again, contains many provisions that have drastically modified the procedural aspects of evicting a tenant who is in default under a lease agreement. If you are a landlord who is considering starting an eviction process, be careful going it alone, without an attorney. When a landlord fails to abide by these new procedural requirements in an attempt to evict a tenant it can result in unnecessary expense, wasted time and, potentially, a dismissal of the landlord's case.
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Security Deposits
As a result of NY's "Housing Stability and Tenant Protection Act", landlords may only ask for one month's rent as a security deposit.
