March 26

How to choose a probate attorney in New York: overcoming the issue of trust

When a prospective client is hiring a probate attorney in New York the first thing I’ve noticed that is usually on my client’s minds is: do I trust this person? This is probably the most valid concern and clients have a duty to themselves to make sure one of the most important tenets to the attorney-client relationship is present.

Believe it or not, that is also on the attorney’s mind. As an attorney I get lied to every day in some sort of fashion. As a human being, I’d imagine you do as well. So, as much as you are feeling out your prospective attorney, I’d imagine they’re doing the same to you. Personally, I value good working relationships over money. When a client listens to the words I say, trusting those words and then chooses a path set before them contemplated in logic, law and the facts of the case, the attorney-client relationship is allowed to do what it’s meant to: allow me to actually help. Honesty from a client is going to enable me to be a more effective attorney who can anticipate possible speed bumps or roadblocks and help me produce better results for the client. I like getting good results. I imagine any prospective client likes them as well.

This obviously begs the question: how do I quickly come to a trusting relationship with my attorney?

I’ve found the easiest way is by word of mouth. If someone has worked with me before and refers me a friend or relative, then I know that the previous client a) thought I did a good job and b) trusts me enough to put me in their friend or relative’s hands. These are the greatest compliments I receive and the easiest relationships I usually have. Many times we can dive right into the issues because the trust boundary has already been overcome by my past relationship with the previous client. We merely just get to work. I also like getting to work.

Prospective clients that come from sources other than word of mouth encounter trust issues at a greater rate and it becomes necessary for a professional courting to take place. I’ve purposely been with my wife for 18 years because my courting days are well behind me. Yet, I understand the need for it and don’t mind playing to a point. I get it. You want to make sure your attorney is professionally competent enough to handle your case. You want to make sure your attorney is not going to just take your money with little or no result. You want to make sure the story you speak about with your attorney is going to remain in confidence. In essence, you want to make sure about the very thing I’m writing about: can I trust this person? I get it. So here is the weird, slightly illogical, but time-tested answer to that question: pay a consultation fee.

For example: I get a call about a contested probate issue with a plethora of issues and even further avenues of potential paths. The prospective client wants to explore these issues on a call or meeting, but does not want to pay a fee for the consultation. Sometimes, I offer free consults, but as of late those sometimes are getting less and less frequent. The reason is that a) I can’t give advice to non-clients as an attorney and b) I must value my time because my other clients are giving high value to it as well. The result of my “free consultations” is that they usually end up having very little substantive matter within them and people feel unsatisfied after. So, I’ve found that having a prospective client actually pay the consultation fee helps resolve the trust issue. They get to have a real conversation with me about their issues and the legal implications of those issues. They ask probing questions and I do my best to answer them or begin to find a route to those more complicated answers. They usually feel satisfied, even if the consultation was enough and they don’t need to retain me because there was a quick answer. In fact, they might even be happy because all it took was one meeting. I’m probably happy as well. I like solving problems. If it’s the start of a lengthier engagement, then I also begin to trust them and the story they are telling more because they are, using the old adage, “putting their money where their mouth is.” My takeaway here is evident: a prospective client who pays for a consult enhances one of the most substantial building blocks of the attorney-client relationship, trust, both for themselves and for the attorney.

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June 8

New York Workers Compensation Fines

Penalties for noncompliance with the workers’ comp. or workers compensation can range from a few thousand dollars to egregious amounts in the tens of thousands of dollars. When you open a business in New York and have employees, acquiring workers compensation insurance is not a step that you can skip. Ask some of my business clients and they will tell you how much I harp on this. Yes, it is somewhat costly depending on the size of your business, but it is imperative you do not skip this step when starting a business. It will cost you. How much?

What is the law and what are the possible penalties?

Failure to secure coverage can be prosecuted both civilly and criminally.

Criminal: – Section 52 [1] (a) of the Workers’ Compensation Law provides that a failure to secure the payment of compensation for five or less employees within a 12 month period shall constitute a misdemeanor punishable by a fine of not less than $1,000 nor more than $5,000. Failure to secure the payment of compensation for more than five employees within a 12 month period shall constitute a class E felony punishable by a fine of not less than $5,000 nor more than $50,000 and is in addition to any other penalties otherwise provided by law.

Civil: Section 52 [5] of the Workers’ Compensation Law provides that the Chair, upon finding that an employer has failed for a period of not less than ten consecutive days to make the provision for payment of compensation may impose upon such employer, in addition to all other penalties, fines or assessments, a penalty of up to $2,000 dollars for each ten day period of non-compliance or a sum not in excess of two times the cost of compensation for its payroll for the period of such failure, which sum shall be paid into the uninsured employers’ fund. When an employer fails to provide business records sufficient to enable the chair to determine the employer’s payroll for the period requested for the calculation of the penalty provided in this section, the imputed weekly payroll for each employee, corporate officer, sole proprietor, or partner shall be the New York state average weekly wage, multiplied by 1.5. Where the employer is a corporation, the president, secretary and treasurer thereof shall be liable for the penalty.

There are also fines and levies that can be collected for failure to maintain accurate payroll (both civilly and criminally), and heavy fines for mis-respresentation. When thinking mis-representation think:

Paying workers “off the books,”
Not reporting wages paid to illegal aliens,
Misclassifying employees as “independent contractors,” and
Misclassifying the work of a business to a classification that is less hazardous (identifying all roofers as secretarial staff), and/or
Intentionally, materially misrepresenting or concealing information pertinent to calculation of premium paid.

See http://www.wcb.ny.gov/content/main/Employers/nonCompliancePenalties.jsp for the full run down or click NY workers comp fines

I just received a letter from the workers compensation board stating that I owe $22,000.

Maybe you’re reading the above text too late, or thought it wasn’t going to catch up with you. You receive a letter stating that you owe a very large amount of money from the New York State Workers Compensation Board. What do you do? Call me. I am a big advocate of do-it-yourselfing when it’s possible, but here I recommend an attorney to negotiate with the board. Sometimes these fines are so large it would put a company out of business. This is one of the times in life where it’s worth getting an attorney involved.

If you’re looking at a large fine, we have successfully negotiated these dollar amounts down truly significant amounts of money on a contingent basis. Most businesses are ok with this arrangement.

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April 24

Dying without a Will in NY: Administration and Intestacy (EPTL § 4-1.1)

When a person who lives in New York dies without a will, the state law of intestacy applies. This means that an administration petition must be brought and since there is no will stating the decedent’s last wishes, the law dictates who gets what. Although the proceedings are similar, there are some differences. Some are superficial: what people refer to as “beneficiaries” during a probate proceeding are actually distributees in an administration proceeding, the former executor is now called an administrator. Yet, in an administration proceeding the administrator is appointed by law, specifically Surrogates Court Procedure Act (SCPA) 1001, “Order of Priority for Granting Letters Administration”. This is an invitation for fiduciary appointment contests. A common example comes when the surviving spouse has predeceased and there are multiple children. When these children oftentimes cannot come to an agreement on who should be appointed, estate litigation ensues and estate litigation is not inexpensive. The easy remedy for this is creating a will and appointing an executor and successor executor, but oftentimes it is too late for that antidote. Regardless, these things happen and it is not the end of the world when they do. Everything can be dealt with.

This law of intestacy in New York is codified in Estate Power and Trust Law (EPTL) § 4-1.1:

“The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows: (a) If a decedent is survived by:

(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.

(2) A spouse and no issue, the whole to the spouse.

(3) Issue and no spouse, the whole to the issue, by representation.

(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.

(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.

(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.

(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.

(b) For all purposes of this section, decedent’s relatives of the half blood shall be treated as if they were relatives of the whole blood. (c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime. (d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law. (e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled”

The statute is wordy, but it’s all there. In most cases the estate will pass to the spouse and children, but everyone’s situation is different. Life is not static though. Also see my previous post here: the statutory results of EPTL 4-1.1 may not be what you would have wished. Any questions regarding your specific situation can be asked in my Contact page.

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November 16

What Happens When You Die Without a Will in NY or How I Learned to Stop Worrying and Love the Idea of a Will

Luckily, and unluckily for some, the state of New York has devised a law that states exactly what happens to a person’s estate when they die without a will, or intestate as we lawyers like to call it. It is codified in EPTL § 4-1.1. It’s easy not to be familiar with this section of the law, because, let’s face it, we only die once.

It states, in part:

“Distribution shall then be as follows:
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.”

Please note that there are six other distribution mandates when the above does not apply, but for now I just want to focus on this one. At first blush it seems to be ok. You probably would have left everything to your immediate family anyway right, so what’s the big deal?

Let’s specify some more:

You were a middle aged, middle/upper-income earning man with two children and a wife who you were lucky to have been living in beautiful Westchester, NY getting by working 10 hours a day to support your property taxes. You had your children later in your thirties because you had been so focused on work and then when 52 hits so does the big one- the big heart attack that is. You leave your wife with a twelve and fourteen year old, $450,000 in the bank and a mortgage to pay. And you never saw Paris.

So, by the letter of the law the first $50,000 goes to your wife. That’s seems reasonable. Then she takes half of the rest- $200,000. Ok, not bad.

And then what: your two children, minors at the time, inherit $200,00 equally? What? Why? Of course this raises more questions: why do I want my minor children inheriting money that my wife needs to raise them? You don’t. Then more practically: how does the Surrogate’s court actually give my minor children $100,000 each? The specifics can be summed up to one word: expensive. Oh and time consuming. So in a situation where your family needs money now and doesn’t want to spend any of it needlessly, they will be doing the opposite.

A Last Will and Testament in New York is, in my mind, an effective insurance policy that not only can direct your wishes and desires, but it can end up saving your family time and money when life is at its hardest.

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