The Law Offices of Daniel Timins Blog

“Name That Witness” (to Your Will)

Posted on May 24, 2017

When you execute your Will you MUST have it witnessed by at least two competent adults who are not beneficiaries in the Will. When you die New York’s Surrogate’s Courts require the names of the witnesses to be listed in the Probate Petition. And so it is nothing short of stupefying to me how many Wills have witness signatures that are completely illegible. This is somewhat understandable if you execute your own Will, since non-attorneys are not in the business of drafting Wills. The signers of illegible signatures are also more easily identified in the event it was the Testator’s friends or neighbors who signed (and thus the identities of the witnesses are more easily deduced). But many attorneys’ witnesses

“Don’t Forget About BoBo: Pet Trust for Your Animal Companion”

Posted on May 16, 2017

One of my dearest aging clients have a dog named Bo Bo. Bo Bo is a true companion to this couple: They are in their 90s and have outlived many of their friends, the husband is more mobile than his wife and likes to get physical activity by walking Bo Bo, and the dog is absolutely in love with them. Bo Bo also smells bad, barks at the littlest disturbance, is a manic that constantly jumps on visitors, (and gets slobber and fur on my suit, which needs to be dry cleaned after every single visit) and is begrudgingly tolerated (at best) by anyone other than my clients. Unfortunately, when my clients pass to the eternal human boneyard, Bo Bo’s

5 Times You DON’T Pay a Deceased Person’s Credit Card Bill

Posted on May 8, 2017

The weeks immediately following a family member’s death is tense, emotional and stressful; many people rush to handle the departed person’s affairs. This includes paying the deceased person’s debts, since every credit card company comes out of the woodwork the moment the card is cancelled by the survivors. However, many family members pay these bills even though they had no responsibility to do so. Here are 5 instances when you should NOT pay a deceased person’s debts: Retirement Plans: Remember that your retirement plans are protected from most creditors, including credit cards. If the decedent died with only retirement plan assets remaining in his name, tell this to the credit card company and don’t pay them anything.

What is the New York Public Administrator?

Posted on May 2, 2017

The New York Public Administrator is one of a chosen office of attorneys in each county that the Surrogate’s Court often calls upon to administer to non-standard probates and estate administrations. The Public Administrator generally has the job of handling estates of people who die without a Will and who have no close relatives who are able to administer the estate: If your nearest living relative is a cousin (or more distant) the Public Administrator will need to be placed on notice, and usually handles the estate if there is no Will in these circumstances. In addition, the Public Administrator often replaces initial Executors or Administrators who are unable to qualify or unable to serve due to being felons, having

3 Ways An Irrevocable Trust Really Isn’t Irrevocable?

Posted on April 25, 2017

As I have discussed in the past, https://www.investopedia.com/advisor-network/articles/only-3-reasons-why-you-should-have-irrevocable-trust/ there are three reasons to create irrevocable trusts. The word “Irrevocable” usually implies no ability to change, and most people believe that a Trustee is required to adhere to the language contained in the irrevocable trust, even though times and circumstances may have changed. Nonetheless, in many circumstances, irrevocable trusts may actually be legally changed, modified or revoked in New York State. ALL PARTIES AGREE TO MODIFY: The first circumstance exists when the Grantor of the Trust is still alive, wants to make a change and ALL the beneficiaries of the Trust agree with the proposed change. In this case, an amendment of the Trust or a revocation can be done –

5 Reasons to Avoid Giving Small Gifts in Your Will

Posted on April 18, 2017

If you have immediate family members whom you love, it is assumed you will leave most of your estate to them. In this case, leaving a few hundred dollars to a distant niece or friend is rightly viewed as an unnecessary sign of respect and kindness. But beware: The amount of time, legal fees and other costs associated with giving a $1,000 bequest in your Will can cost as much as leaving a $50,000 to that beneficiary. In fact, leaving small gifts to people using your Will is a sure way to increase your legal fees in New York, oftentimes incurring more expenses to send the gift than the amount of the gift itself: Cost of Mailing Notice (Required):

The Top 5 Things to Do When a Family Member is Terminally Ill

Posted on April 14, 2017

Watching a person’s last days of life is often a horrible, gut-wrenching process. The dying individual may or may not be able to communicate, and the trauma of seeing a loved one approaching their end makes it difficult for spectators to make decisive decisions. But no matter what the case, if you want to do what is best for your family, you must utilize the precious remaining days of your loved one’s life to take action on certain items, as these matters get much more difficult and stressful upon his or her passing. Figure Out Funeral Arrangements: May people have funeral plots or pre-paid burial arrangements, but these details are often not formally shared with family and friends beforehand. If the

3 Times Your Retirement Plan is Not Protected from Creditors

Posted on April 4, 2017

Many people know that IRAs and 401(k) plans have creditor protection. However, most people do not know the limits of that creditor protection. It may come as an unwelcome surprise, but if someone is suing you: (1) if you owe money to the IRS or to an ex-spouse, (2) if your retirement plan is of a certain type, or (3) if your beneficiaries are under creditor attack, your retirement funds may not be protected at all. First, if you owe tax dollars to the IRS, or are late on alimony or child support payments, your retirement plan is almost never a safe haven. The IRS, an ex-spouse, and minor children act as “super creditor” against your retirement plans. Ex-spouses

Increase Executor Commissions by Including Real Estate Transfers

Posted on March 28, 2017

You have a good deal of latitude structuring Executor’s commissions in a Will. There are many subtleties to default Executor commissions that apply if you don’t substitute them; in order to be fair to your Executor, one that you may want to modify relates to instructing your Executor to transfer real estate under the terms of your will. In New York, Executor commissions are based on collecting and distributing property, primarily intangible investments. These commissions are easy to calculate, since investment assets are easy to price, transfer and sell. But the family home – typically the largest Probate asset – is not so easy to administer, and is not always commissionable. If the real estate is sold as

UTMA Accounts: The Good, Bad and Ugly

Posted on March 21, 2017

Uniform Transfer to Minors Act accounts allow a person to leave funds to a minor beneficiary without a court’s interference. In general, minors are not legally able to own property. If a minor comes into possession of a bank or investment account or proceeds from a life insurance policy or retirement plan, a court may have to appoint a guardian over the property. UTMA accounts sidestep this requirement by naming a custodian over the funds: the custodian oversees and invests the funds until the minor turns 21 years old. However, just because UTMAs avoid court oversight, does not mean they are devoid of other problems: Poor Investment Decisions: A custodian who invests the funds poorly relies on state