Author: MOWK

What are Estate Planning Steps to Take After a Parent’s Death?

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Whenever someone dies, it’s never easy. It’s especially difficult when your parent dies. Not only do you have to deal with the emotional fallout that stems from losing your oved one, but your parent leaves behind a life that needs to be closed out. As their child, much of this will be your responsibility. Here is a checklist of estate planning steps to take after your parent passes away.

Immediately After your Parent Dies

  • Get a legal pronouncement of death: Obtaining the official declaration of death is the initial step to take to eventually get a death certificate. If your parent died in the hospital or at a nursing home or assisted living facility, the staff will be able to take care of this. However, if they died at home, you should get a health care professional to declare the death by calling 911 and have them transported to the hospital emergency room for the declaration. 
  • Determine existing funeral and burial plans: In the best-case scenario, you’ve already had a discussion with your parent about their plans for a funeral, burial, or cremation. If not, then search to see if there was a pre-paid plan.  

A Few Days After 

  • Make funeral, burial, or cremation arrangements: Research funeral prices to make the appropriate decisions. If your parent was in the military, contact the Veterans Administration to check if they offer special rates or benefits.  
  • Secure the property: Lock up your loved one’s home and vehicle and valuables. 
  • Provide care for pets: Ensure that the pets have temporary caretakers until a permanent situation is resolved. 
  • Notify employer: Inquire about benefits, paychecks, and if there is a company-wide insurance policy. 

A Week or Two After Death

  • Secure certified copies of death certificates: These will be necessary to close the bank and brokerage accounts, to file insurance claims, and to register the death with government agencies. 
  • Determine if your parent had an estate plan: It will be easier to handle the estate if they already have an estate plan in place where they compiled all of the related documents in one location. Ideally, these documents will discuss how their property should be distributed. 
  • Gather the important documents: If your parent dies without the necessary documents readily available, you will need to obtain them, including a birth and marriage certificate, social security card, tax returns, and other financial documents. Although it might be difficult, it’s a necessary part of the process. 
  • Find the will if there is one: You and other survivors will want to know how your parent’s property, money, and other assets will be distributed. Hopefully, you have already discussed this with them before and that there is a will and you can get to it. 
  • Handle life insurance issues: Because disputes may occur with insurance companies, it’s a good idea to be proactive and reduce the risks of possible disagreements. Usually, as long as a death certificate is delivered and you are an authorized life insurance recipient, the beneficiary will receive a check. 
  • Contact the Necessary Government Organizations: Inform the appropriate agencies that are in charge of distributing benefits, such as the Social Security Administration or the Veteran’s Administration, if applicable. 
  • Make a list of all assets: Probate is the process of executing a will and the process usually begins with an inventory of assets. 

Talk to a New York Estate Planning Lawyer

Nothing can fully prepare you for the challenges that arise when your parent dies. However, getting the assistance of a knowledgeable estate planning lawyer can help make the transition easier. Consider contacting an experienced MOWK Law estate planning attorney to plan your next move. 

Top 3 Disputes that Occur When Buying or Selling a Home

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Whenever you form a business connection with someone, you want the relationship to be as harmonious as possible. This is especially true in the buyer/seller relationship that accompanies the purchase of a home. Whether you’re the buyer or the seller, the relationship requires a certain degree of trust, communication, and honesty. Even with the best intentions, the relationship can encounter its share of disagreements. Read on to find out about top three disputes that occur when buying or selling a home and how a New York real estate lawyer can help.

1. Deposit Disputes: A very common dispute revolves around deposits. Deposits are used as a fallback to lessen the blow for an unsuccessful transaction. In general, the purchase agreement will clearly state who has the right to the deposit in the event that the transaction doesn’t go forward. However, if the purchase agreement is misleading, then it can lead to issues. A dispute is likely to occur under these circumstances because both parties may argue that they’re entitled to the deposit.

2. Disputes about the Failure to Disclose Defects: Disclosure involves conveying important information about defects in the property. Some defects must be disclosed, while others aren’t required to be revealed. For instance, a specific disclosure mandated by the law is a disclosure about lead paint. A general disclosure is that the seller is required to tell the buyer about any known housing defects, even if the buyer doesn’t ask about the information. This is one of the many reasons the purchaser of the property should consult with a professional to survey the property before the sale. If there is a defect that isn’t discovered until after the purchase, a dispute could arise. 

3. Disputes about Contracts: Each transaction is a unique situation, and the contract should be drafted specifically to reflect the specific situation involved; this applies to both the parties and to the property itself. However, real estate agents aren’t always good about contemplating the buyer’s and the seller’s needs and tailoring the contract to fit those needs. This can result in issues later on in the process.  

Get Help with Your Property Sale Dispute from an Experienced Attorney

If you’ve involved in a New York home purchase, you should do your best to avoid disputes in the first place. However, sometimes they can’t be avoided. An experienced real estate attorney can be a valuable ally when it comes to resolving a home purchase dispute. Get in touch with a skilled MOWK real estate attorney who is ready to assess your situation. 

Understanding New York Chapter 13 Repayment Plans

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If you’re thinking about what to do about your mounting debt, you might consider filing for bankruptcy. Specifically, you might contemplate filing for a New York Chapter 13 bankruptcy because it allows you to retain your property and still make payments on any loans or other debt that you’ve incurred. It also gives you an opportunity to save your New York home from foreclosure because it lets you stop proceedings and catch up any past due payments over time in your repayment plan. Read on to learn more about Chapter 13 reorganization plans. 

Types of Debt

The type of debt that you have affects your bankruptcy filing. There are a few categories for debt balances, including priority, secured, or unsecured. 

  • Priority balances: includes back taxes owed, ongoing child support payments, and costs related to filing for Chapter 13 protection
  • Secured debts: includes auto loans, mortgages, or other obligations that are supported by collateral
  • Unsecured debts: includes credit card balance, health care bills, or other loans that were obtained with no collateral and obtained with a promise to pay the lender back in a timely fashion; these creditors are last in the pecking order for payment, and any unpaid part of this type of debt is forgiven at the end of the repayment period

Chapter 13 Bankruptcy vs. Chapter 7 Bankruptcy

A Chapter 13 bankruptcy is referred to as a “wage earner” bankruptcy because it requires you to have a steady source of income in order to file– you must have enough money to repay some of your debt. Unlike a Chapter 7 bankruptcy which wipes out all your debts, in a Chapter 13, you repay your debts over time based on a repayment plan.  

How the Terms of a Repayment Plan are Established

The terms of your repayment plan will depend on a few different factors. First, a means test is used to estimate the duration of your repayment plan. If your monthly income is lower than the state median, you will probably be required to make plan payments for three years. If your income is higher than the state median, you will likely make payments for five years. A means test might have disqualified you from filing a Chapter 7 bankruptcy in the first place because you earn too much income. 

The amount of the payment depends on the type of debts that you have incurred and how much disposable income you have to pay them with. IRS guidelines, state law, and the bankruptcy court itself are all factors used to establish how much you can afford to give to your creditors every month. 

What Happens During the Repayment Period?

When you’re in the repayment time, an automatic stay applies. This acts like a legal “red light” that is activated when you file bankruptcy, and your creditors can’t collect on debts that are part of the repayment plan; you don’t have any direct contact with creditors during the Chapter 13.

Considering Filing for a Chapter 13? Get Legal Help

If you’re exploring protection from your creditors, you will probably want to talk to a lawyer. An experienced attorney can discuss how to file for bankruptcy and how it can be an advantage to you. They may also assist you with making sure that creditors comply with the legal stay. Contact a MOWK Law bankruptcy attorney to get started with your bankruptcy plan. 

Forming an LLC in New York

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As you prepare to start a new business, you will be inundated with many things to consider and many decisions to be made. One of the most basic, but significant choices that you have to make is what type of business structure is best for your New York business. A popular choice for many is to form an LLC (limited liability company). Read on to learn about how to form an LLC in New York. 

Other Business Types

In New York, you have a couple of different options when it comes to types of business structures. Each one comes with its own sets of pros and cons. When you decide on a corporation, you are protected from the personal liability that comes from starting a sole proprietorship, which is the easiest structure to form. However, forming a corporation involves completing complex paperwork that must be submitted to the state government. An LLC combines elements of a corporation with elements of a sole proprietorship: It shields you from personal liability and contains less formalities than a corporation. For some, this is the best of both worlds, making it a popular option for small business owners. 

Steps to Take When Forming a New York LLC

Just like every state, New York has specific requirements that must be completed before an entity can become an LLC. One preliminary requirement is that the principle must be a resident of New York. Here are the next steps to forming your New York LLC:

  • Business Name: You will need to pick a business name for your LLC. The name can’t be a name already used in New York and it must contain “LLC”, “L.L.C.”, or “Limited Liability Company.”   
  • Articles of Incorporation: File Articles of Incorporation with the state and pay the required filing fee.  
  • Registered Agent: Appoint a registered agent. A registered agent (or RA, also known as an agent for process of service) is specified by the business for the purpose of receiving official legal documents, including lawsuit documents, subpoenas, wage garnishments, and other official legal documentation. 
  • Operating Agreement: Create and adopt an operating agreement for your LLC. This the key document within your company that sets up the powers, duties liabilities, rights and responsibilities of the members of the LLC to each other and to the LLC. Because it’s an internal document, you don’t have to file this with the state.
  • Publishing Requirement: Within 120 days of forming the LLC, you must publish a notice in two general circulation newspapers (one daily, one weekly) in the county where the LLC was formed.
  • License and Permit Requirements: Depending on the type of business activities, you may have to obtain license or permits from local or state governments. 

Get Help Forming your New York LLC from an Experienced Attorney

While New York doesn’t require the use of a lawyer to form an LLC, the Articles and Operating Agreement create enforceable rights and responsibilities and there are many tax considerations to contemplate. Consider using a skilled MOWK Law attorney to help you with your formation so that nothing is overlooked. We will work hard to represent your best interests. Contact us today to learn more and to get started. 

Living Trusts vs. Wills—Which Should You Choose?

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The pandemic has a lot of people thinking about their estate planning. One of the issues that you may consider in this planning is whether you want to create a living trust in addition to a will or instead of a will. The decision is a very personal one and will depend on your specific needs. Read on to learn what you should know about when you’re thinking about a living trust. 

The Definitions 

A will is a written document that designates how your property will be distributed when you die. It is revocable, which means it can be canceled and changed at any time while you’re alive. If you have a will, it also allows you to appoint an executor, a guardian for your minor children, designate how to pay your taxes and forgive debts. 

A living trust (specifically, a revocable living trust) is a legal document that is created during an individual’s life where a named person (the trustee) is entrusted with managing the individual’s assets for the benefit of another person (the beneficiary). This serves the purpose of managing your assets (bank accounts, real estate, investments, vehicles, personal property) in a trust during your lifetime because often you’re the trustee; it is also setting up the management of your assets and estate after your death or incapacity with naming a successor trustee, who acts as your representative and transfers your assets to the beneficiary based on your wishes. The naming of a successor trustee is a key difference between a will and a living trust. 

What are the Advantages of a Living Trust?

There are several advantages when deciding whether or not to you should take the time to create a living trust.  Here are some of the reasons that some individuals favor them:

  • Saving money on estate taxes
  • Avoiding probate: This allows you to skip the court proceedings.
  • Protecting your privacy: Since you’re avoiding probate, you can keep information from the public.

What are the Disadvantages of a Living Trust?

Like most things, there are some reasons why an individual might not want to get a living trust. Here are some key disadvantages to creating them:

  • Limitations: No executors or guardians: A living trust doesn’t allow you to name an executor or a guardian for your children. 
  • More expensive: Living trusts are typically more expensive to create compared to a will.
  • More complex: Instead of merely having a witness, like you have for a will, a living trust requires signing it in front of a notary. 

Living Trusts and Wills 

Many people form a trust in addition to having a will, rather than as an alternative. An example of the way that these two documents work together is if you get a “pour-over will.” This type of instrument states that anything that’s not already in the trust should be included at the time of death. 

Get Help with Drafting Living Trusts and Wills from an Experienced Attorney

Although living trusts aren’t a must for everyone, they can certainly serve individuals well. The ideal estate plan is the one that works with your unique needs and fulfills your wishes. If you need help with drafting a living trust or a will, you should seek the services of MOWK Law Estate Planning attorneys who can help you get through the process smoothly. Contact us to get started with your specific plan.

When Does a NY Contract Need to be in Writing?

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Should your New York business agreement always be in writing? In general, the answer to this question is “yes.” However, there are specific rules to inform us when a type of contract must be in the written form. Read on to learn about when New York contracts are required to be in writing. 

The New York Statute of Frauds

The law that requires certain New York contracts to be in writing to be enforceable is referred to as “The Statute of Frauds.” 

There are several types of contracts that must be in writing, including the following: 

  • Any Contract that May Take More than a Year to Perform: Under the New York General Obligations Law, contracts that will take the parties more than one year to perform must be in writing. This does include employment contracts, but employment with no specific terms, (which is also known as “at will” employment) is not required to be in writing since this type of employment can be terminated at any time. 
  • The Sale or Lease of Real Estate: Under the New York General Obligations Law, any sale of real property and lease in New York that lasting longer that one year in duration must be in writing. 
  • Negotiating Services for Loan/ Real Estate Brokerage: All New York real estate transactions and transactions related to loans in New York must be in writing unless the individual providing the services is a licensed real estate broker or a New York attorney, per the New York General Obligations Law. 
  • Sale of Goods Contracts: The Statue of Frauds in New York requires all contracts in New York for the price of $500 or more to be in writing in order for the contract to be enforceable, unless there is some writing sufficient to indicate that a contract was made. To meet this requirement, there doesn’t need to be a formal long-form contract; there only needs to be some sort of writing necessary to show that there is a contract. 
  • Guaranty to Pay the Debts of Another: Under the New York General Obligations Law, any contract that assumes responsibility for the financial obligations of another individual or entity must be in writing. 

 “Promissory Estoppel” Exception

New York recognizes an exception to the writing requirement for contracts called “promissory estoppel.” Promissory estoppel will apply if the party trying to enforce an oral agreement can show all of the following elements:

  • A clear and unambiguous promise
  • Reasonable and foreseeable reliance 
  • An injury (the party must act in reliance on the promise)

Even when all of the elements for promissory estoppel are present, it will only allow an individual to avoid the writing requirement of the contract under certain conditions. This is when the failure to enforce the promise would be unconscionable, not merely unfair or unjust. Obviously, this can be a high bar to meet. 

Get Legal Help with Enforcing or Drafting your New York Contract

While the law requires only certain types of contracts must be written, in any type of business contract, you should get your contracts in writing. If you need help with drafting a contract or enforcing an oral agreement, getting in touch with a skilled legal professional is the way to go.  Contact us here at MOWK Law where an experienced attorney can work on your behalf to ensure that your interests are protected. 

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Is a Reverse Mortgage Right for Me?

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You’ve watching your favorite sports event or true crime series when you see a commercial encouraging you to get a reverse mortgage. If you’re near retirement age and own your home, you may consider this type of loan. Read on to learn about reverse mortgages and whether it is a good fit for you for your total New York estate plan. 

What is a Reverse Mortgage?

A reverse mortgage is a loan for homeowners that are 62 years old or older. This type of loan allows the senior homeowner to borrow against their home equity, as long as they reside in their home as their primary residence. The loan amount is based on the following:

  • The homeowner’s age
  • Their financial assessment
  • The current interest rates
  • The appraised value of the senior’s home

Unlike most mortgages, the reverse mortgage doesn’t require monthly payments. However, you must still pay for property taxes, homeowner insurance, and maintenance. As the homeowner, you also retain title to your home. Deferment of the repayment occurs until the last of the homeowners dies, sells, or moves out of the home. 

Those who choose a reverse mortgage may opt to receive the loan funds as a lump sum, a line of credit, a monthly payment, or a combination of these payment options. Because a reverse mortgage is a nonrecourse loan, the homeowner’s estate and heirs aren’t liable for paying the lending institution more than the value of the home when the loan is due. 

What are the Benefits of a Reverse Mortgage?

There are several advantages of a reverse mortgage, including the following:

  • You can remain in your own home for the rest of life (as long as you pay the property taxes, homeowners’ insurance, and maintenance).
  • You can satisfy your need for supplemental income and increased cash flow since it’s tax free.
  • You don’t have to make monthly payments to the lending institution. 
  • You can select the method of loan payments from the lending institution.

What is the Downside to a Reverse Mortgage?

There are several disadvantages of reverse mortgages, including the following:

  • You are responsible for paying fees, including those for loan origination, appraisal, third-party counselor, and loan servicing fees, as well as mortgage insurance premiums and closing costs.
  • You may have less equity in your home to pass to heirs.
  • The loan balance increases over time and interest and fees accumulate.
  • The reverse mortgage may negatively affect your eligibility for government benefits (for example, Supplemental Security Income).

Depending on your situation, you might find that a reverse mortgage is the ideal thing. It depends on how you feel about financial independence and how important it is for you to stay in your home. Also, keep in mind your need for supplemental income and cash flow and your comfort level. Another issue as to if it works for you is whether you have children or other heirs that you want to pass equity in the house to. 

Considering a Reverse Mortgage? Discuss it with an Experienced Attorney

If you’re thinking about a reverse mortgage, then you want to make sure that you consider all your options. Consulting with and retaining skilled lawyers is crucial if you’re considering this type of loan. MOWK Law has experienced New York estate planning attorneys who can help you with establishing your complete estate plan. We can help you break down the complexities of reverse mortgages and help you decide if it’s the right move for you. Contact us today. 

How to Pick a Good Trademark

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Shakespeare once asked, “What’s in a name?” Well, to a business owner trying to select a trademark, it means a lot. It’s a very important decision because the chosen word, design, symbol, or phrase (that identifies the source of a company’s products or services) can be one of the most valuable assets that your company will own. Choosing wisely can help you distinguish yourselves from the competition; making a poor choice can trigger costly legal disputes. Find out what you need to know about how to pick a good trademark.

Pick a Trademark That can be Registered

If you can’t register your trademark with the United States Patent and Trademark Office, you really shouldn’t bother with it because there’s no point. There are many benefits to registration, including protection and reassurances of ownership and ability to enforce your rights against other companies.

Typically, the stronger or more distinctive the mark, the more likely it is to register it and protect it from use from others. The following categories will help determine the ease of registering your mark.

·       Generic: These are words that are already accepted and recognized descriptions of a certain type of services or goods. These aren’t eligible for trademark protection. Example: “Ivory” used to describe a product made with elephant tusks. 

·       Descriptive: This mark describes goods, or some quality tied to the goods.  However, these words aren’t eligible for trademarks, unless they achieve a secondary meaning, which means that the word becomes exclusively associated with a specific company. Example: “Holiday Inn.”

·       Suggestive: This includes words that suggest a meaning or connection to the product but doesn’t describe it; they are automatically eligible for trademark protection. Example: “Chicken of the Sea” for tuna and “Coppertone” for sunscreen.

·       Arbitrary: This includes words that offer no meaning or clue to the product or service. A common word applied in an unfamiliar way. Example: “Urban Decay” for cosmetics.

·       Fanciful:  These are made up words that aren’t related to the product or service. Example: “Klorax.”

Based on this list, you will want to avoid generic words (because they can’t be protected) and descriptive (because they have to be accompanied with secondary meaning to be protected). Instead, you want to choose fanciful, arbitrary, or suggestive words for your trademark.  

Conduct a Trademark Search

A complete trademark search will help to ensure that you don’t pick something that can be confused with an already registered trademark. You want to avoid this because it creates a “likelihood of confusion.” If you pick a mark too similar to one already in existence, then your mark can’t be registered.  

Speak with a Lawyer about Trademarks

Picking your trademark and registering it seems like an easy task. However, it’s not always so simple. An experienced attorney can help you evaluate the strength of your mark and can identify any potential problems. You can talk to a skilled Mowk Law attorney who can provide insight into all intellectual property matters. Contact us today for assistance. 

Things You Should Know about Making an Online Will

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Writing a will helps you to control how your possessions are distributed after your death. While many will put off this important task, one way that isn’t as time-consuming is to complete the process online. Although one of the best things about creating your will online is that it’s convenient, it is more than just plugging in information into the site. You obviously have to take some time to think about what you want to do and to make sure that the document will ensure that your wishes are carried out. Read on for information about creating your will online.  

Inventory of your Assets

An individual’s assets can determine their estate planning strategy; you don’t want to overlook any of your possessions so that you make a mistake concerning distribution. Before you start, you need to take stock of your assets.  Although many people mistakenly believe that the will covers all your assets, it only covers assets that aren’t passed by operation of law, through a trust, or have a beneficiary designation listed, such as a life insurance policy where the named recipient gets the assets after your death. This is relevant information that you should know before starting an online will so that your intentions will be reflected in your will.   

Leaving Money to Minors/ People with Disabilities

Online wills simplify the process of passing down your assets to children. It usually allows you to leave money to children outright. However, this presents myriad problems if a child is a minor or has a disability. Leaving money to a minor child can cause issues in probate and a guardian will need to be appointed, which can lead to excessive administrative fees and other complications. With disabled children, you often want to leave their part of the inheritance in a supplemental needs trust, so that they can maintain eligibility for government benefits. These are very significant details that aren’t always contemplated when using online software.  

When You Don’t Have a Spouse or Children

There can be issues when it comes to online wills if you don’t have a spouse or children. Online will sites often default to requiring information about a spouse and children. If this is the situation, the probate process is more complex and the closest relatives of the deceased need to be identified. Any New York estate planning attorney would have their client fill out an extensive family tree, but the online site may not necessarily provide for this.

Additionally, in situations where an individual doesn’t have a spouse or children, a revocable trust is generally advisable. However, when you create your will online, it won’t necessarily provide you this information that might help you accomplish your goals more successfully.

Need Help Preparing Your Will? Talk to an Experienced Attorney

Although you can create a valid online will as long as it’s executed properly, the details of your case might be such that a generic site isn’t as helpful to you. You can get valuable insight from an experienced MOWk law New York estate planning attorney. Contact us today to follow up with more information.      

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Common Breaches in Real Estate Contracts

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Real Estate Contracts: The Basics

Being a party in a New York real estate contract can be a frustrating place to be because of all the complexities of the law that is involved. It can be even more frustrating if the other party doesn’t perform their contractual duties. Typically, when the buyer signs a residential real estate contract, they provide the contract deposit and the contract to the seller’s attorney. The deposit is then placed into escrow. It will remain there until closing, unless a breach of contract occurs. If the closing doesn’t happen, either the buyer or the seller can demand the contract deposit. 

When is a Real Estate Contract Breached?

A breach of a real estate contract can occur when there is a violation of any of the contract terms. The wronged party will be able to recover damages on the basis of whether the breach is a material breach or a minor breach. Although every real estate contract is unique, certain breaches are common among pretty much all real estate deals.

Breaching a Real Estate Contract: Buyer’s Breach

The main task of the buyer is to provide the money to complete the real estate sale. Here are some common breaches that the buyer can commit:

  • Not having adequate funds to make a contract deposit, to the extent that the check bounces
  • Not tendering the balance of the purchase price
  • Purposely defaulting under the real estate contract (for example, withholding documents from the bank, including not providing them with a mortgage commitment letter)
  • Not providing accurate and honest warranties and representations
  • Not coming to the transaction in good faith, when it concerns preclosing matters

Breaching a Real Estate Contract: Seller’s Breach

Obviously, the seller is expected to do certain things so that ultimately the buyer can take possession of the property. Here are some common breaches that the seller can commit:

  • Failure to deliver the deed, or failure to deliver the correct deed
  • Failure to deliver the property in a timely manner
  • Not remedying the agreed-upon problems with the property before turning the property over
  • Not curing defects in the property title
  • No providing accurate and honest warranties and representations

Remedies for the Breach of the Real Estate Contract

Liquidated damages are usually the only way that the seller can retain the contract deposit when the buyer breaches the real estate contract. However, if the seller is the breaching party, the buyer can seek remedies including money damages and specific performance, which in this case, would be the forced sale of the property or rescission of the contract. If the buyer and seller can’t reach an agreement about who gets the contract deposit, then they have to take the issue to court or resolve it in mediation or arbitration.  

Discuss Breach of Contract with an Experienced New York Real Estate Attorney

If you’re dealing with a real estate contract breach, as either the buyer or seller, you want to be sure that you’re getting the benefit of your bargain. The experienced New York real estate lawyers at MOWk Law are here to help you on your way to resolving your issue. They will help you sort out the details and give you direction on next steps in reaching satisfaction. Contact us immediately to learn more.