What Are The Executor’s Responsibilities?

March 9th, 2010

A Will names an executor who has the power to petition the Surrogate’s Court to probate it.  An executor is the “personal representative” and fiduciary of the decedent and as such must administer the estate.  The executor must ensure that the Will is carried out.  In general, the executor must:

  1. Handle funeral arrangements and pay for the funeral;
  2. Pay any outstanding bills of the estate;
  3. Collect and preserve assets;
  4. Pay debts, taxes and administration expenses of the estate; and
  5. Distribute estate assets according to the terms of the will.

For further information, read the free  New York Executor’s Legal Survival Guide or call Buffalo and WNY Estate Planning Attorney Bob Friedman at  716 631 9999 or toll-free at 800 729 4571.

What Qualities And Abilities Should An Estate Executor Have?

March 2nd, 2010

When you write a Will as testator in Buffalo, NY, it is especially important to choose competent and trustworthy executors and alternate executors. Otherwise, even careful estate planning may be rendered useless. The executor can be any person or institution that you choose. However, an executor should be:

  • Experienced and competent in business matters;
  • Familiar with your business, finances and property;
  • Able and willing to act as your executor;
  • Able to spend the time necessary to perform his or her duties;
  • Able to work with the estate’s attorney and accountant; and
  • Able to provide for the continuation of your business.

NEW YORK MEDICAID PENALTY REGIONAL RATES FOR 2010

February 24th, 2010

The 2010 New York Medicaid regional rates used to determine a transfer of assets penalty period are:

Region Monthly Regional Rate
Central New York $7,264
Long Island, NY $11,227
New York City $10,285
Northeastern New York $7,927
Northern Metropolitan NY $10,163
Rochester, NY $9,058
Western New York $7,694

These rates are based on average nursing home costs in each of the seven regions in New York State. A period of ineligibility (“penalty period”) is imposed for any transfers of assets for less than fair market value (gifts) since February 8, 2006.

A period of ineligibility for Medicaid institutional services will result from these transfers. Medicaid will calculate the period of ineligibility by the following statutory formula: the dollar value of the transfer divided by the average monthly cost for one month of nursing home care equals the number of months of ineligibility for Medicaid nursing home institutional services.

For further information, see the free New York Medicaid Guide at http://www.wny-lawyers.com/medicaid.pdf

If you have questions about Estate Planning Issues and other legal matters that will impact your family as you grow older, contact Buffalo New York Estate Attorney Bob Friedman at (716) 542-5444.

What Is Probate?

February 23rd, 2010

Probate is the process of proving that the Will of a deceased person (testator) is in fact his or her Will and reflects his or her wishes. The purpose of probate is to prove the validity of the Will, have the executor appointed and administer the estate.

A Will may not be probated unless the Surrogate’s Court is satisfied as to its genuineness and the validity of its execution (signing). A Will must be probated to be valid. It is not operative until it is admitted to probate by the Surrogate’s Court.

Admission of the Will to probate requires establishing, upon due notice to all required persons, that:

  1. It is the Will of the decedent;
  2. That it has been signed and witnessed and otherwise executed as required by law;
  3. That at the time of its execution the decedent was of sound mind;
  4. That it, indeed, was the last will and testament of the decedent.

The execution of a subsequent Will revokes an earlier Will. When the court is satisfied that the above conditions have been established, the Will is admitted to probate and is effective for all purposes, including the transfer of the title to real property.

Until such admission to probate, the Will has no force and effect and the named executor has no authority.

Where Can I Find Free Information On NY Landlord-Tenant Law?

February 16th, 2010

New York landlord-tenant guides are available free online from the New York courts, the New York Division of Human Rights, the New York Attorney General, the New York City Bar Association, HUD, the New York Health Department  and other agencies and organizations, as follows:

Guide to the NY Courts http://www.nysba.org/

Fair Housing Guide http://www.dhr.state.ny.us/pdf/DHR_FairHousing4.11.pdf

Housing Rights of People with Disabilities http://www.dhr.state.ny.us/pdf/trifold-housing_disability.pdf

Guide to Small Claims Court http://nycourthelp.gov/

How to Prepare for a Landlord-Tenant Trial nycourts.gov/

How To Get A Place Called Home A handbook to help people with HIV/AIDS find housing in NY State

Tenant’s Rights Guide http://www.ag.ny.gov/

Housing Guide for Senior Citizens http://www.ag.ny.gov/

Manufactured Homes Tenants Guide http://www.ag.ny.gov/

Tenant’s Guide to NYC Housing Court http://www.nycbar.org/

Companion Animals in NYC http://www.abcny.org/

EPA’s New Renovation, Repair and Painting Rule www.centerforhealthyhousing.org/

REASONABLE MODIFICATIONS UNDER THE FAIR HOUSING ACT http://www.hud.gov/

Renovate Right by EPA http://www.centerforhealthyhousing.org/

Fair Housing Information Sheets http://www.bazelon.org/

NEW MORTGAGE FORECLOSURE LAW

February 9th, 2010

Comprehensive New York foreclosure legislation provides additional critical protections for New York State homeowners, tenants and neighborhoods in the wake of the ongoing foreclosure crisis.

The legislation builds upon the 2008 landmark sub-prime lending reform law protecting homeowners currently at risk of foreclosure and minimizing the negative impacts that foreclosures have on communities. It protects homeowners in Buffalo, Rochester, Niagara Falls and throughout New York state by providing mandatory settlement conferences and protects tenants from premature evictions.

It also safeguards New York neighborhoods from the decay caused by foreclosure by reducing the erosion of area property values and by preventing vacant homes from becoming sites of criminal activity. This legislation expands the reforms in several ways to protect New York homeowners, tenants and neighborhoods. The new law:

  • Expands the 90-day pre-foreclosure notice currently sent for subprime loans to include all New York home loans, including loans on cooperative apartments.
  • Requires lenders who serve a 90-day notice on a New York homeowner to make, within three days of that service, a regulatory filing with the New York Banking Department with information to allow the Banking Department and the Division of Housing and Community Renewal to provide targeted assistance to distressed homeowners during the pre-foreclosure period and closely monitor foreclosure statistics.
  • Expands the scope of early mandatory settlement conferences to include borrowers of all New York home loans and not just borrowers with subprime loans and requires both plaintiffs and defendants to negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.
  • Establishes protections for New York tenants in foreclosed properties by requiring that they receive written notification of the foreclosure action and the change in ownership of the property, and be permitted to remain in their home for the remainder of their lease term or 90 days, whichever is longer, provided that such lease requires the payment of rent that is not substantially less than fair market rent.
  • Requires plaintiffs in a New York foreclosure action who obtain a judgment of foreclosure and sale to maintain the foreclosed property so that it does not pose a blight or nuisance, or create a blighting influence on neighboring properties. If the property is occupied by a tenant, the plaintiff must also maintain the property in a safe and habitable condition.
  • Prevents brokers who perform distressed property consulting services from accepting upfront fees.
  • Permits the court to award reasonable attorneys’ fees to a prevailing borrower in a foreclosure action.

NEW YORK CHILD PASSENGER PROTECTION ACT

February 5th, 2010

The New York Child Passenger Protection Act, also known as Leandra’s Law, makes penalties for drunk driving with child passengers the toughest in the nation.

Beginning on December 18, 2009, Leandra’s Law makes it a first-time Class E felony offense for driving under the influence of alcohol and/or drugs while transporting passengers age 15 and under. The offense carries a sentence of one to four years in state prison, a fine of $1000 to $5000, and the issuance of a mandatory ignition interlock device.

In the event of serious physical injury or death to a child, Leandra’s Law increases penalties. If a child is injured, the driver will be charged with a Class D felony and face a state prison sentence of one to seven years. If reckless driving is a contributing factor, the charge will be a Class C felony with a maximum prison sentence of 15 years.

A driver who causes the death of a child will be charged will be a Class C felony having a maximum sentence of 15 years. If reckless driving is a contributing factor, the driver will be charged with a Class B felony with a maximum sentence of 25 years.

Leandra’s Law was drafted in the wake of the tragic crash on Oct. 11, 2009 that resulted in the death of 11-year-old Leandra Rosado. Leandra was killed when the intoxicated driver of the vehicle crashed her car, carrying six other child passengers.

How Do I Decide If I Need To Hire An Attorney After An Accident

January 29th, 2010

If you’ve been injured in an accident, there are situations where you will not need to hire an attorney. In New York, small claims court will handle personal injury claims of up to $3000 dollars.

If you have an injury that is minor and won’t result in an incapacity or substantial medical care, you should consider settling the case yourself in small claims court.

If you have been seriously injured in Buffalo, New York, or are unsure as to the degree of your injury, you should consult a personal injury attorney immediately. These cases can get quite complicated and an attorney will have the expertise, time, and resources to handle your case claim.

An experienced New York personal injury lawyer will have the ability to analyze the value of your case and to make all of the deadlines and requirements of your case.

It is important to recognize that statistics show that insurance companies regularly increase settlements when an a personal injury lawyer is actively involved.

If you need help in Buffalo New York please contact me today about your case.

NY ATTORNEYS MAY CANCEL HOME PURCHASE CONTRACT

January 18th, 2010

Attorneys in New York may cancel real estate purchase agreements on behalf of their clients for any reason, or for no reason at all, under the “attorney approval contingency” clause typically used in Buffalo and Western New York.

The Erks signed a contract to purchase the Morans home in Clarence, New York for $505,000. The contract of sale contained an “attorney approval contingency.” That clause provided that the contract was contingent upon approval by the parties’ attorneys giving  both the seller and buyer three days from their attorney’s receipt of the contract to disapprove of the contract and render it void.

The contract and rider were boilerplate forms copyrighted and approved by the Greater Buffalo Association of Realtors and the Bar Association of Erie County. It is intended to ensure that real estate brokers avoid the unauthorized practice of law.

After signing the contract, the Erks began to have second thoughts about the purchase. As a result, they instructed their attorney to disapprove of the contract, which she did within the three-day period provided in the contract. The Morans sold their house about 3 years later for $385,000.

Shortly thereafter, they sued the Erks for breach of contract and sought the difference in sale prices plus carrying costs for the nearly 3-year period the house was on the market.

The New York trial court entered judgment against the Erks, holding that they acted in bad faith by instructing their attorney to cancel the contract. The New York Appellate Division affirmed.

The New York Court of Appeals reversed, holding the language of the “attorney approval contingency” clause means what it says: no vested rights are created by the contract prior to the expiration of the contingency period.

The Court held that as long as attorneys cancel sales contracts within the prescribed time period, and the contract otherwise does not explicitly prevent them from doing so, attorneys and their clients would not be acting in bad faith by withdrawing from the sales agreement under the attorney approval contingency.

Ruling otherwise would inject doubt in an area of contracts — the sale of real estate — where “clarity and predictability are particularly important.” Reading a bad-faith exception into the contingency clauses could prompt litigation “by a disappointed would-be seller or buyer any time an attorney disapproved a real estate contract pursuant to an attorney approval contingency.”

The threat to attorney-client confidentiality under a bad faith regime could harm the attorney-client relationship itself in the context of real estate transactions.  A diligent attorney, cognizant of the risk of being subpoenaed to testify as to the basis for disapproval, would face a perverse incentive to avoid candid communications with his or her client regarding a transaction in which the attorney is supposed to represent the client’s legal interest.

New Foreclosure Law Protects Tenants

January 13th, 2010

Residential tenants in New York and most other states used to have their leases extinguished at foreclosure and could be evicted by the new owners. The Protecting Tenants at Foreclosure Act (PTFA) provides residential tenants with new  protections when landlords lose rental units to foreclosure of federally related mortgages.

Tenants living in foreclosed rental units must be given a minimum 90-day pre-eviction notice after the buyer takes legal title from the foreclosure referee.

PTFA protects tenants:

(a)  with  month-to-month leases;
(b) with leases terminable at-will;
(c) without formal leases but verifiable rent payment history, and;
(d) with  Section 8 leases and  subsidy contracts

However, if the tenant has more than 90 days remaining  on the lease, the tenant must be allowed to stay until the lease ends, unless the buyer will occupy the property as a primary residence.

Protections are limited to “bona fide” leases in which:

1) the tenant is not the mortgagor, the mortgagor’s child, spouse, or parent;
2) the lease is the result of an arms-length transaction, and;
3) the rent is not substantially less than market rent, unless reduced by a subsidy.

Federally related mortgages are those:

(a) insured, regulated, guaranteed, supplemented or assisted by the federal government or;
(b) intended to be sold to the Federal National Mortgage Association, the Government National Mortgage Association or  the Federal Home Loan Mortgage Corporation.