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We have answered many of the common, and not so common questions we’ve been asked over the years about Probate, Trusts, Wills and other Estate Planning matters….right here on this website.

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Does Every Offer Need to Be Relayed?

Most lawsuits are settled out of court, so negotiation of the terms of a settlement is an essential part of litigation.  Any experienced Long Island estate attorney will tell you that negotiation skills are essential when dealing with estate litigation, such as contesting a will.  As a client, you need to understand what your rights are when it comes to negotiating a case before the Surrogate’s Court and understand what duty your lawyer owes you to keep you in the loop.

It is well established that your attorney must relay offers from other parties to you, even if your attorney believes that the settlement is a poor one or if they believe that it would not be in your best interest to take it.  While your attorney has a lot of leeway to make strategic decisions on your behalf for helping with your case, they cannot ultimately settle or fail to settle a case for you – that decision is yours and yours alone.

This does not mean that your attorney just has to give you a settlement offer and not give you advice on how to proceed.  In fact, a large part of the attorney’s job is to make sure you understand the offer that was given to you by an opposing party and what the legal ramifications of that is.

You should be aware, however, that negotiating an offer is something that takes time and can involve dozens of offers and counteroffers.  Not every offer has much action that you can take besides to reject them, especially those that are not being given in good faith or are being given just to test the waters on whether you may actually be willing to take a settlement that is far below what you are suing for.  But then again, it depends on your situation and the amount of the offer – some cases have great initial offers considering the facts.

Having a Long Island estate attorney on your side through the settlement process is necessary since they will be in the best position to tell you if an offer that is coming in is a fair one or not.  Your attorney may also have a better idea about how to gauge the opposing party and their lawyer and the likelihood of them coming to a reasonable settlement.  Finally, your attorney will have a much better understanding of what the judge in your estate matter is looking for, something that is especially important since judges prefer cases to be settled over those cases having to go to trial.

Some of the things that your Long Island estate attorney may look at when helping you decide on an offer would be the costs in things such as legal fees to keep the litigation going, the strength of witnesses, the strength of your own testimony and the strength of your case, for example.  All of these things make a huge difference when it comes to whether or not an offer is a reasonable one.

If you are looking for an estate attorney on Long Island, call the Law Offices of Albert Gurevich at (516) 777-0647.

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Know What Notary Requirements Are

In New York, notaries are commissioned by the county clerks in the county where they either live or where they do business in cases where they live outside the state. Usually, people who are notaries have gained that status because they have taken an exam or have automatically been able to apply to be notaries because they fall into certain groups of professionals, such as attorneys. The majority of Long Island estate attorneys and any type of attorney for that matter are notaries since it helps them do their job. Having an understanding of the legality of how a notary works is essential so you can understand when a notary stamp can be used.

County clerks are responsible for the commission of notaries, meaning that, on Long Island, the county clerks for Nassau and Suffolk counties would be responsible for commissioning notaries within their borders. Almost always, someone is commissioned in the county where they live, however, notary information is subject to FOIL requests, meaning that if a home address is used, it may not be private. For that reason, someone can be allowed to use their business address instead. Because of the nature of long island business, it is likely someone could live in one county and have their place of business be in another, meaning that they could be commissioned in either county.

Once someone has been commissioned as a notary by their county clerk, they are allowed to notarize in any county within New York State. Their signature card and their information will only be found in the county where they were commissioned. This information, their commission number and the county that they were commissioned in, would be located on the card with their notary information and would have to be located on any document that they notarize. In fact, it would likely be found right on the stamp used by the notary to notarize a document. This is so a notary can be tracked down later if necessary.

In the New York city area, it is quite common to see someone with a notary in one county notarize something in another county since it is common for someone to live or work in one area and have to notarize something in another area. This is especially common with Long Island estate attorneys, who are more likely to visit their clients at home to execute wills, trusts or other documents where a notary stamp may be required in the process somehow and the client is not as mobile as other clients would be. No matter what county the stamp comes from, it would be a legal one, as long as it is from the state of New York.

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Is Favoritism A Good Enough Reason To Contest The Will?

After a parent dies, there are some times that there is a shock of finding out that there is one child that is favored in the will over other siblings. The siblings who were left with less of an inheritance or no inheritance at all may wonder what, if anything, can be done about their situation with the assistance of a Long Island estate attorney. The fact is, there are not many reasons that a will can be overturned, and, unless someone can prove that a will is invalid for some other reason, it will not be overturned simply because one child was favored over others.

There are unlimited numbers of legitimate reasons why a parent may leave more or all of their estate to one child over others. It is commonly seen in cases where one child was a caregiver in that parent’s later years, where one child needs the assets more or where other siblings were given large gifts which were substituted for their inheritance. The Surrogate’s Court tries to respect what someone states their wishes are as stated in the will since it may not necessarily be obvious to people who are outside the immediate family.

Because of this, having the courts overturn a will for one child be favored over the others would have to come down to one of the other reasons a will would be considered invalid, such as that it was written when there was undue influence, when the parent did not have testamentary capacity, or under duress. While leaving some children at a disadvantage over another may be evidence in such cases may be evidence, it would not be considered to be absolute proof.

To prove an undue influence case, the remaining siblings would have to prove the sibling that was favored used pressure to substitute their will for the parents own when it came to how the will was being written. For duress, there would have to be proof of a threat of some sort. Finally, when it comes to lack of testamentary capacity, the disadvantaged siblings would have to prove that the parent was not psychologically capable of being able to sign a will.

If you are a child who was left out of a will or did not get what you think was your fair share, all hope is not lost. Where you need to start is with talking to a Long Island estate attorney to see what your next steps should be. Call the Law Offices of Albert Gurevich at (516) 777-0647.

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Understanding Your Elective Share is a Must

While the majority of spouses get along, there may be some where, for whatever reason, one spouse attempts to write the other out of his or her will. There are other cases where people get married and one spouse forgets to change his or her will and the other spouse is left out. If you are a spouse in such as situation, you may be wondering what, if anything, you may be able to do when your spouse dies and you have been written out of the will or if your spouse never updated their will to include you when you married. The good news is that there is something that you can do about it. Though if you are in a position where you may be facing a legal battle, you are best off getting a Long Island estate attorney to assist you.

Spouses are entitled to what is called an “elective share”. In New York, if a spouse is left out of the will, they are entitled to a specific amount, no matter what the will may say. That amount currently is $50,000 or 1/3 of the total estate, whichever is more. If the estate is worth less than $50,000, the surviving spouse is entitled to the entire estate. This would be the case even in estates where the spouse was purposely left out of the will through language in the will.

When it comes to intestate estates, or those where there is no will, the spouse is entitled to half of the estate.

Assets that were transferred within one year of the decedent’s death can be “brought back into the estate,” meaning that the spouse is entitled to have 1/3 of the transferred assets returned.

There is only one way to have a spouse give up his or her elective share, and that would be through a prenuptial or postnuptial agreement with the testator before the testator’s death. In such a situation, the spouse can agree beforehand to give up their elective share and get either nothing or a pre-set amount. This is the tool used where a person wants to make sure before their death that their children inherit the entire estate or the majority of the estate, rather than the surviving spouse.

If you are the spouse of someone who died intestate or who did not write you into their will, the first step you have to take is to call a Long Island estate attorney right away. You can protect your rights the best by having an experienced lawyer on your side. Call the Law Offices of Albert Gurevich at (516) 777-0647.

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When someone is appointed trustee, they are taking on a lot of responsibilities. Besides simply making trust payouts, the trustee must also make sure that they do certain things such as making wise investments with the trust principal, protect the trust from losses and make periodical accountings to the beneficiaries of the trust. For this reason, trustees are entitled to collect fees for their work. However, as most things covered by estate law, determining what the fees are can be difficult, meaning that the wisest course of action for a new trustee is to have the assistance of a Long Island estate attorney.

Similarly to executor commissions in estate law, trustee commissions are not based on a flat rate but are rather based on how much the value of the trust is. Factors such as how many trustees there are can also have an impact of trustee fees. A trustee may also be allowed to collect a commission for transactions done on behalf of the trust if those transactions are outside of the normal yearly commission.

Trustee commissions are disbursed out once every 12 month period. The period can begin on a number of days, including going by the calendar or fiscal year. The commission is paid partially by the principal and partially by the interest. The commission structure for trustees is as follows:

1. $10.50 per $1,000 of the first $400,000 of the principal of the trust,
2. $4.50 per $1,000 of the next $600,000 of the principal, and
3. $3.00 per $1,000 of the rest of the trust.

In some cases, more than one trustee may be appointed. In such a case, the amount that is disbursed depends on the value of the trust and the number of trustees. If the value of a trust is under $100,000, each trustee gets a full commission. If a trust is worth $100,000-$400,000 and there are one or two trustees, each trustee is entitled to a full commission, yet if there are three or more trustees, the commission will be divided up amongst all of the trustees. Finally, if the trust is worth more than $400,000 and there are one, two or three trustees, all of the trustees will get a full commission, however, if there are more than that, the commission will be divided up amongst all the trustees.

Finally, a trustee is allowed to take a percentage of each transaction as a fee for their work on that transaction of 1%. This would be for things such as making investments on the principal or making payouts.

If you have been appointed trustee, the commissions that you get paid are just one of the things that have to be included in an accounting to the beneficiaries on a periodic basis. For this reason, you want to be sure that the commissions are calculated and paid out correctly. Because of their complexity, you should have a Long Island estate attorney on your side to make sure that everything is done properly. If you are a beneficiary, you may need a Long Island estate attorney to make sure that the trustees are not taking more commissions than they are entitled to. Call the Law Offices of Albert Gurevich at (516) 777-0647.

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There is a recurring TV show and movie scene when a character dies, where the family of the decedent gathers in the lawyer’s office, or the lawyer meets with the family, and the deceased person’s will is read in some dramatic fashion to the surviving heirs. This probably leads many who just lost a loved one to wonder if this is what they should be expecting. In fact, the dramatic will reading that you see in the movies is not a real thing, but that does not mean that there are not things involving a new estate that do not need to be done with the assistance of a Long Island estate attorney.

Formal will readings are not necessary on Long Island or anywhere else in New York state. However, the executor (the person who handles a will) or the administrator (the person who handles an intestate estate) has to give Notice of Probate to the heirs (those who are blood relatives who would normally be entitled to inherit) and the beneficiaries (those who are named in the will). With the Notice of Probate will almost always be a copy of the will of the decedent. This is what serves as notice of what is in the will for those who are either due to inherit or would have been people that would have inherited.

Besides the Notice of Probate, you may also get a waiver. This would waive any objections you have to probate and would allow the case to go forward. If you have any questions about the will at all, you should not sign this waiver until you have gotten a Long Island estate attorney to look at it.

It is at this point that you would take the will and the other paperwork to your Long Island estate attorney if there is something you are concerned about when it comes to the estate. There are time limits set on what kinds of responses you can make, such as challenging a will or other legal actions. You may also simply want your attorney to look over the will so that you can have a better understanding of it and to make sure that you aren’t giving up any rights.

Although you are not likely to get a reading of the will, you are likely to receive a copy of the Will along with a Notice of Probate or a Citation and a Waiver. If you are planning to challenge the will or have any other doubts about the will or the people who are nominated as the executor in the will, call the Law Offices of Albert Gurevich at (516) 777-0647.

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Understanding Testamentary Capacity

Many people assume that because their loved one has mental issues that it meant that they would not have the capability to sign a will. This would be a reasonable assumption considering that one must have a certain amount of mental capacity to sign other legal documents, such as contracts, and would not be able to sign if under guardianship or the victim of dementia. If you have questions about the testamentary capacity of any of your loved ones, calling an experienced Long Island estate attorney is the best way to determine if your case is a strong one.

The following elements are needed for mental capacity:

1. The testator must know they are signing a will and what a will is,
2. The testator must understand the nature and value of their property and
3. The testator must understand who the “objects of his or her bounty” are.

The first part of this test is pretty self-explanatory. Either a person knows what a will is and what it does or they don’t.

As for the second part of the test, a person does not have to know the exact amount of his or her estate and each and every item owned. They do, however, have to have a general idea what their estate is made up of. For example, if there is a family home, they need to know that part of the estate is a family home. However, they also have to know what is not in the estate. An example of this would be believing their bank account had millions of dollars in it when it never did and there was no basis in thinking it would.

The “objects of one’s bounty” requirement means that the testator must recognize who their heirs are. This doesn’t mean that they have to fully know their family tree, but they should know who their spouse, children and close grandchildren. The testator needs to also recognize who is not their family, such as friends or people who bear no blood relationship or other relationship to them at all.

Someone can still have testamentary capacity when they have a guardian who is in charge of handling all of their other legal matters for them and a will signed by them is valid as long as it meets the criteria above. Additionally, someone can have a diagnosis such as Alzheimer’s and still be able to sign a legal will.

If you are involved in an estate case where mental capacity is at issue, call the Law Offices of Albert Gurevich at (516) 565-7785.

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What is Considered Undue Influence in a Long Island Will?

A common objection to a will is that someone used undue influence to get the person who died on Long Island to change their will so that it no longer reflected how they wanted their estate be divided after their death. Undue influence, while a common objection, is also one that is challenging to prove in Surrogate’s Court because there are very specific criteria that have to be met in order for such an objection to be successful.

Undue influence means that a person or persons are using intimidation against a person to have them replace their free will for the one doing the intimidating when it comes to writing a will. One of the main problems that arise when it comes to undue influence is that it is rare that there will be anything except for circumstantial evidence when trying to prove it. An example of undue influence is when a sibling pressures his or per parent to rewrite their will in a way where all of the other siblings are left out and everything is left to the sibling doing the pressuring and his or her family.

There are a couple of things that are usually signs that undue influence may have been used to have a will be changed. Often, the person guilty of undue influence may try to isolate the testator from other heirs and may use their influence to spread mistruths about those other heirs, perhaps through saying things such as those heirs are trying to steal from the testator or are wishing harm upon them. The person who uses undue influence may also try to take a lot of control over the process of having the new will written through using their choice of attorney or pushing what the contents of the will should be when it comes to discussing the will with the testator. Some things, such as the health and mental wellbeing of the testator may be evidence that they were more likely to be victims of undue influence.

If you are writing a new will and you are concerned that there may be an objection to it due to undue influence, you should develop your estate plan with the help of a Long Island estate attorney. There are steps that can be taken that will help provide evidence that your will is a good representation of your own free will and not someone else’s through taking action such as having a doctor evaluate you the day you execute the will and have a videographer record the signing. While there is no sure-fire way to avoid having an heir contest your will, this could help when it comes to making sure your wishes are met.

Whether you are planning to make a will, prosecute a will contest, or defend a will contest, contact the Law Offices of Albert Gurevich at (516) 777-0647.

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Can a Trust on Long Island be Terminated or Changed?

Are the Terms of a Long Island Trust Permanent?

If you are setting up a trust, are a trustee or are a beneficiary of a trust, you may need to know if the trust that you have set up can be modified in some way or cancelled. The answer is not a simple one, and it is quite likely that you will need to engage the help of a Long Island estate attorney to be sure that you have a successful result.

There are two basic kinds of trust, a revocable trust and an irrevocable trust. A revocable trust can have its terms changed by the grantor, or the person who set up the trust or by someone else who may have been given power to change the terms of the trust under the trust instrument (such as may be the case after the grantor dies, who could basically be anybody the grantor chooses).

Things become more difficult when it comes to irrevocable trusts, however, because, as stated in their name, they are considered to be irrevocable. In order for an irrevocable trust to be modified in any way, all of the beneficiaries (or the guardians of unborn beneficiaries, minors or other beneficiaries who are subject to guardianship) who may be affected by any modification to the trust, along with the trustee, must agree to the modification and go before the Surrogate’s Court to request to any changes that are going to be made. The Surrogate’s Court judge must then agree to the changes.

Usually, the reason the parties to a trust want it to be changed is because it may be too small to be profitable anymore. This means that it cannot be adequately invested in a way where the beneficiaries get anything out of it. Another reason could be that the parties could find a lump sum more useful because they may want to use it for something such as buying a house or other larger items they need, such as a car.

However, if just one party to the trust does not agree to changing the trust, it cannot be changed, even in front of a Surrogate’s Court judge and if there are few assets left in the trust. The reason for this is that the legal philosophy behind an irrevocable trust is that the desires of the grantor should be preserved, even if it later becomes something that some of the beneficiaries no longer want. For this reason, the court may keep to the trust document if there are any disagreements as to the future of the trust.

If you are a trustee or beneficiary of a trust and are looking to modify the terms of that trust in some way, do not attempt to change those terms alone. If you are a trustee who is trying to keep the trust intact, your power to do so may vary based on whether or not you are also a trust beneficiary. The wisest option is to hire a Long Island estate attorney to assist you so that you can be sure that you have someone handling negotiations and someone who can handle the legal arguments in the Nassau County or Suffolk County Surrogate’s Court.. Call the Law Offices of Albert Gurevich at (516) 777-0647.

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New York is one of the few states with an estate tax system that is stricter than the Federal system and, last year, new laws were passed to try and change this. There are some parts of the law that work better for the majority of those who have high-value estates, but for those with estates valued at a high, but moderate amount, there could be issues, meaning your best option is to have a Long Island estate attorney assist in your estate planning.

One of the main things that was passed in the new law back in March, 2014 was that the amount of value in the estate has to be higher before it is subject to New York State estate taxes. Instead of $1,000,000 as it was previously, the amount the estate has to be between April 1, 2014 and April 1, 2015 is $2,062,500. Between April 1, 2015 and April 1, 2016, this amount will be $3,125,000. Each year, the amount will go up until it matches the federal amount.

However, there was one thing written into the law that can cause many issues for those who are subject to the estate law and is being called the estate tax “cliff”. Under the old law, if you went over the exclusion limit, you were only taxed on the amount that you went over by. This would mean that if you had $1,005,000 in assets when you died, you would only have to pay taxes on the $5,000 over the exclusion amount. With the new law, you would now have to pay estate taxes on the entire estate, something that could be a huge tax increase for those who were right on the cusp of having to pay estate taxes.

Another major change was that a three-year lookback was added when it comes to determining the size of estates. This means that when the assets are determined when valuing an estate, all gifts given within the three years prior to the decedent’s death would be taken into account. This part of the provision only would include gifts that were given after April 1, 2014, meaning at the time this article is written, New York State would not be looking back a full three years, but the three year lookback will become more and more relevant, and by 2017 should achieve its full strength – a look back of a full three years. This does add a new level of technical issues when planning out an estate since it now means that simply giving assets away to heirs or others would not be an option to avoid estate taxes.

With the tax rules how they are now written, you need a knowledgeable Long Island estate attorney on your side to help you plan out your estate in a way where you can maximize the amount your heirs get. Planning out your estate, especially when it is large enough where it could be subject to estate taxes, is an area of the law where you need a professional and should not be attempted alone. Call the Law Offices of Albert Gurevich at (516) 777-0647.

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