June 25

EPTL § 4-1.4: Disqualification of Parent to Take Intestate Share in New York

EPTL § 4-1.4 Disqualification of parent to take intestate share

(a) No distributive share in the estate of a deceased child shall be
allowed to a parent who has failed or refused to provide for, or has
abandoned such child while such child is under the age of twenty-one
years, whether or not such child dies before having attained the age of
twenty-one years, unless the parental relationship and duties are
subsequently resumed and continue until the death of the child. Subject
to the provisions of subdivision eight of section two hundred thirteen
of the civil practice law and rules, this paragraph shall not apply to a
biological parent who places such child for adoption with a person or
agency based upon: (1) a fraudulent promise, not kept, to arrange for
and complete adoption of such child, or (2) other fraud or deceit by the
person or agency where, before the death of the child, the person or
agency fails to arrange for the adoptive placement or petition for the
adoption of the child, and fails to comply timely with conditions
imposed by the court for the adoption to proceed.

(b) In the event that a parent or spouse is disqualified from taking a
distributive share in the estate of a decedent, under this section or
5-1.2, the estate of such decedent shall be distributed in accordance
with 4-1.1 as though such spouse or parent had predeceased the decedent.”

A proceeding to disqualify a parent under this little-known statute comes at the unfortunate time where a parent outlives their own child. For a child to have amassed any assets usually means that there was a negligence suit of some sort and a positive settlement has been made on behalf of the child’s estate. Again, usually, this child dies without a will and one spouse will assert that the other parent had abandoned or failed to provide support for the deceased child during the course of his/her life. This is always an incredibly tough situation, and sadly it does happen.

The rationale behind the statute is admirable though. Why should a parent who has abandoned their child or failed to provide for them in their formative years be entitled to half of what the child had acquired throughout their life? Although admirable, the standards the legislature have set in the statute are not always as easy to prove as one would think.

The standard of abandonment stated above is also shrouded in case law. The takeaway is that the entire process always becomes highly fact specific. What does that mean for the potential client? Come in ready to have a tough, lengthy conversation. Above all: be honest with me. Even a white lie in these cases can prove highly detrimental down the road.

Losing a child is hard enough. If you ever find yourself in this situation please do not hesitate to reach out to us to begin a conversation.

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June 24

Small Administration in New York

Probate or Estate Administration in New York is a sometimes necessary, sometimes unnecessary, costly affair. There is an exception though.

In New York this is known as the small estate administration. This is a simplified court procedure for the estate of a person who died, but who did not have many assets. The court, and more specifically, the Surrogate’s court, gives away the property of the decedent (the person who died) to the person or people who had a legal right to inherit. Please take note that if the decedent owned real property soley in his or her own name, the estate may not take advantage of this program. If the decedent owned real property jointly and you don’t plan on selling it, you may take advantage of the program as long the estate is under either $20,000 or $30,000.

To qualify for the program, the decedent must have had $20,000 or less in personal property if they passed away between August 29, 1996 and December 31, 2008 or $30,000 or less in personal property if they passed away after January 1, 2009.

The next step is to file a form known as the “Affidavit of Voluntary Administration,” also known as the “small estate affidavit.” Luckily for you, this is now done online.
Before you begin, you will need to gather:

1) The name and address of the person who died (also called “the decedent”)

2) A certified copy of the death certificate

3) The name and address of the decedent’s husband or wife, children, and grandchildren.
If the decedent did not have a husband or wife, children or grandchildren, the name and address of the decedent’s father and mother.
If the decedent’s parents are no longer living, the name and address of the decedent’s siblings.
If the decedent’s siblings are no longer living, then the name and address of the siblings’ children.
If none of the above family members of the decedent are living, then the name and address of any aunt or uncle of the decedent.

4) The original Will, if the decedent had a Will, and the names and addresses of people mentioned in the Will.

5) If the decedent had assets, the value of each asset. You will need account numbers and serial numbers of assets. Assets may include the following: bank accounts (not joint accounts), investment accounts, insurance policies, and cars and boats

6) The decedent’s unpaid creditors. This may include the following: credit card bills, utility bills, and funeral expenses

Click this link to get to work: https://lawhelpinteractive.org/login_form?template_id=template.2009-05-14.8486845559&set_language=en

Of course if you need help with this process, have any questions, or do not qualify for the exception, call or email me and we’ll get through the probate process together.

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April 24

Minor Name Changes in New York

Minor Name Change in New York

Minor name change petitions in the state of New York, outside of New York City, are remarkably different than changing an adult name. I have previously written an extensive post about changing an adult name, but I wanted to get a little information out there on minor or infant name changes.

First, be prepared that both parents must give consent to the application. This is not as easy as it seems. In a world where over fifty percent of parents are divorced, sometimes a seemingly straightforward issue like changing your child’s name becomes full of angst. There’s no easy pill to resolve this usually except for communication and compassion, so a good relationship with your child’s mother or father is almost always a good idea.

A remedy for lack of consent and a dismissal of the publication aspect does exist, but a judge will usually not issue it without good cause. Usually it is reserved for someone who is currently in real harm and a consent or publication would put them in further harm. So although this option exists, it will probably not apply to you. I know of one case where a parent’s consent would not be given by an imprisoned father and the court denied the application for the name change on the argument that the father wanted to be good dad upon getting out of jail and that a name change would inhibit that ability.

As always, feel free to contact me with any further questions.

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January 30

Estate Planning: Wills, Part I

Some of my clients have millions of dollars. For them, estate planning is a necessary item on their lifetime checklist or else their estate will run into dire tax implications. For New York residents who die on or before March 31, 2014, an estate may be subject to the New York estate tax if the total of the federal gross estate, plus the federal adjusted taxable gifts and specific exemption, exceeds $1,000,000. Many New Yorkers fall into this category and for them, it is usually much cheaper to set up an estate plan then to pay estate taxes.

Things are changing though.

Going forward into the future the NY State Tax Law will be in constant flux until the year 2019. Part X of Chapter 59 of the Laws of 2014 amends the estate tax to decouple the tax from Federal law. The estate tax was commonly known as a “pick-up” tax because the tax equaled the Federal credit for state estate taxes as it existed on July 22, 1998. The unified threshold of $1 million is replaced with an applicable credit equal to the tax on a basic threshold amount equal to $2,062,500 for those dying in State Fiscal Year 2014-15; $3,125,000 in SFY2015-16; $4,187,500 in SFY2016-17; and $5,250,000 from April 1, 2017 to December 31, 2018. The basic threshold will equal the Federal basic threshold amount with annual indexing for those dying on or after January 1, 2019. The applicable credit is reduced for New York taxable estates exceeding the basic threshold amount and equals zero for those exceeding one hundred five percent of such amount. This is similar to the loss of the benefit of the $1 million unified threshold under previous law.
Gifts taxable under Section 2503 of the Internal Revenue Code that were not otherwise included in Federal Gross Estate and that were made during the three years ending on the date of death must be added to the New York Gross Estate. However, gifts made while the decedent was a nonresident of New York State and gifts made prior to April 1, 2014 or on or after January 1, 2019 are not included. The Generation Skipping Tax has also been repealed as of April 1, 2014. Taken from http://www.tax.ny.gov/pdf/stats/sumprovisions/summary_of_2014_15_tax_provisions.pdf

In my opinion this brings many more people back into the realm of “So why do I need a will now?” and the question that usually follows is then, “and why do I need an attorney to prepare it?”. Well, the answer is simple. You probably always needed a will, you might just not need that trust at this time. Let’s explore why:

1) First and most important. An attorney’s supervision of the execution ceremony gives rise to a rebuttable presumption that all of the requirements of the statute of wills were met. (Matter of Kindberg, 207 N.Y. 220, 100 N.E. 789 (1912). This is incredibly important. Will contests happen all the time. Take a second and think of your family. Now think what would happen if you threw a pot of money in the middle of a room on a day they all happened to be there? When an attorney supervises the will he or she drafted, it helps everyone form an orderly line and walk slowly to the pot, if they are entitled to walk to the pot at all. In essence, this helps a decedent’s wishes actually come to fruition.

2) Secondly, you can choose exactly who gets what. Without a will your estate will be divided by law, specifically Article 4 of the Estates, Powers and Trusts Law of NY (the EPTL). Discussing Article 4 is a separate blog entry.

3) Thirdly, simply put: a guardianship provision for your minor children.

There are other reasons, but let’s save something to talk about.

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