• How to Remove an Executor: Removing an Executor of an Estate in New York

    An executor of an estate has an important role to oversee the last will and testament of the deceased person who wrote the will. Often, the testator, the person who wrote the will, names an executor during the will and estate planning process.

    Sometimes, the testator will have asked the person named as executor if they want to perform the duties and responsibilities this role requires. Other times, the named executor may have no idea they were given this task.

    Regardless of whether executor knew ahead of time or after the death of the testator, as long as they are able to carry out the required duties, then they are not easily removed. These duties include, but may not be limited to:

    • Inventory All Assets
    • Maintain the Value of All Assets
    • Keep Accounting and Other Business Records
    • Probate the Will in Surrogate Court
    • Pay All Creditors with a Claim on the Estate
    • Pay All Income and Estate Taxes
    • Distribute the Remaining Assets to Beneficiaries

    In addition, they must provide reports and documentation as requested by the New York Surrogate Court, which is also called the New York Probate Court. The executor has to also obtain permission from the court to perform various duties like liquidating assets to pay debts or distributing certain assets or money immediately to surviving spouse and minor children.

    Furthermore, beneficiaries may request the executor provide detailed records and share updates about the status of the probate process. The executor has to comply with these requests in a timely manner.

    Scales, clipboard, and gavel in front of man and woman

    Who Can Be An Executor of an Estate in New York?

     To qualify as an executor, the minimum requirements required by law are:

    • 18 Years of Age or Older
    • No Felony Convictions
    • A United States Citizen or Legal Living Resident of New York
    • Not Incapacitated or Not Adjudicated

    Executors should also be good at math and communications since they will need to prepare a variety of financial records, reports, and communicate with the court and the beneficiaries. Sometimes the testator will name a trust company, financial institution, or law firm as the executor of their will, which is also acceptable.

    Valid Reasons for Removing an Executor of a Will in New York

    The New York Surrogate Court has created a Procedure Act which details the valid reason for removing an executor from a will in Section 711. These reasons include:

    1. Executor Misconduct: If the executor behaves in such a negative or poor manner where he should no longer be the executor like filing for bankruptcy.
    2. Mismanagement or Wasting of Estate Assets: The executor is not managing or maintaining the assets as required.
    3. Convicted of a Felony: The executor has been convicted and found guilty of a felony in the past.
    4. Stealing Estate Assets: The executor has been stealing money and other assets from the estate.
    5. Substance Abuse: The executor has a substance abuse problem that is affecting their ability to perform their duties.
    6. Lacks Mental Ability/Capacity: The executor is not of sound mind or lacks the mental ability/capacity to carry out their duties.
    7. Misleads/Lying to the Surrogate Court: The executor is not being honest with the court in some manner like lying about the current value of the estate’s assets.
    8. Failure to Comply with a Court Order: The executor does not perform duties ordered by the Court.
    9. Not Eligible: The executor is not eligible to be an executor of a will in New York like they have not yet turned 18 years of age.
    10. Contingency Requirement Met: Once the executor fulfills his duties, which is called a contingency, the executor must stop being the executor.
    11. Fails to File Change of Address: If the executor moves and fails to notify the court of their new address, they could be removed.
    12. Becomes Disqualified: An executor was initially qualified, but some event has occurred which now makes them disqualified to continue as the executor like developing a substance abuse problem.
    13. Removes Assets/Property from New York: The executor is removing assets and property from New York without the court’s permission or beneficiary waivers.
    14. Unfit to Perform Executor Duties: There is some issue about the moral standing of the executor which makes them unfit. The court will determine this reason on a case-by-case basis.
    15. Failure to File Records/Documentation: The executor is not providing the required records and documentation to the court and/or beneficiaries in a timely manner.
    16. Violates the Terms of a Testamentary Trust: The will included a testamentary trust and the executor is violating the terms of that trust.

    Removing an Executor from Probate Processes Is Not Easy

    As you can imagine, the above reasons are in place to make it difficult to easily remove an executor from probate processes and required duties. Many of the reasons are often subjective in nature, which means the court handles them on a case-by-case basis. The court may not agree with the person who requests the removal of the executor.

    Man and woman in front of judge

    However, if you have sufficient evidence to support one or more of the qualifying reasons for removing an executor from probate processes, then it is possible to get them disqualified. To be successful in your endeavors, you will want to get help from a qualified New York wills and estate lawyer to present your evidence to the Surrogate Court.

    Reasons Why Beneficiaries Try to Remove an Executor

    The reasons why beneficiaries sometimes attempt to remove an executor from a will do not always align with the legal reasons as defined in Section 711 of the New York Surrogate Court’s Procedure Act. Some of the more common ones include:

    • The executor is not a relative.
    • The executor is a family member who dislikes me.
    • The executor is too young.
    • The executor doesn’t live in New York.
    • The executor is too old.
    • The testator made last-minute verbal changes to their will that the executor is refusing to follow.
    • The executor is my step-mother/step-father.
    • The executor has problems managing money.
    • The executor once stole from me, so they will steal from the estate.
    • The executor is not returning my phone calls or emails.
    • The executor owed the testator money and never paid it back.
    • The executor seems untrustworthy.
    • The executor has no experience managing finances.
    • I know the deceased person’s intentions, and they wanted me to handle their estate, not the executor.
    • The executor manipulated the testator to change their will and cut out many of the beneficiaries before they died.
    • The executor is playing favorites with our brother because we are siblings and ignoring me and my sister.
    Two men arguing with two women

    Even though one might have personal reasons for removing an executor, the court is not going to remove them as long as they are fulfilling their duties and there is no supporting evidence to indicate otherwise.

    How Do You Change the Executor of a Will?

    If the testator is still alive, they simply have to speak to their wills and estate planning lawyer and have their will updated with a new executor. Sometimes, the original executor may no longer be fit to perform the duties and responsibilities required.

    Other times, there could be personal issues, where the testator and named executor are no longer on speaking terms. Depending on when the will was originally written, the original named executor could have died before the testator.

    Ideally, one should review their will, named executor, and beneficiaries once every few years to see if any changes or updates are needed. Keeping a will updated can also help avoid disputes by surviving family and friends later when the will is probated in court.

    Removing an executor of a will after the testator has died can be more difficult. The person or persons who want to remove the executor must first be able to prove to the Surrogate Court in New York that they are not fit to serve as executor based on one of the allowed grounds as detailed in Section 711 of the New York Surrogate’s Procedure Act.

    However, as long as your reasons for wanting to remove the executor from the will align with one or more of the ones in Section 711, then there is a higher probability the court will remove the executor.

    Since removing an executor from an estate in New York can be complex, you do need to get help and assistance from a qualified New York probate lawyer. If the executor is removed, keep in mind, the court will decide who will be assigned as the new executor of the estate, not you or the other beneficiaries.

    To find out if you have grounds to remove an executor from an estate in New York, or to change or update the executor with a review of your will and estate planning process, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

    Sources:

    1. https://codes.findlaw.com/ny/surrogates-court-procedure-act/scp-sect-711.html

  • Understanding the Role and Responsibilities of an Executor of Estate in New York

    As you prepare your will that details your intentions, it is essential to take time to consider who will be your executor of an estate in New York. The duties of an executor require taking care of many fiduciary tasks and functions to fully satisfy your intentions.

    An executor can be any person of legal age able to carry out the required duties. You do not have to name a relative as your executor. You could name a business, your wills and estate lawyer, a business partner, or a friend. Ideally, you want to choose someone you can trust and rely on.

    last will and testament with dollar

    Duties of an Executor of Estate in New York

    The executor you select also needs to understand their role and responsibilities to successfully carry out their duties. In general, they will be tasked with accounting for all of your assets, property, investments, financial accounts, and debts. They will also be responsible for filing your death certificate and will with the probate court in New York, called the New York Surrogate Court.

    The probate process is required to ensure the will is legally binding, as well as to address any potential issues where one or more beneficiaries may attempt to contest the will. Most executors do seek assistance from a qualified probate lawyer to ensure all legal obligations are met.

    Probating the will is just one duty of an executor. The executor will need to safeguard all assets until such time they are to be liquidated and/or distributed to beneficiaries. If the deceased owned a business, then the executor is required to oversee its operations.

    Additionally, they will inventory and appraise all assets to establish their value. Prior to distributing the estate to the beneficiaries, the executor must satisfy all debts claimed by creditors, as well as income and estate taxes.

    Furthermore, the executor should take steps to protect the interests of the beneficiaries. This could require keeping accounting records and other financial reports to show that the assets have been protected.

    Executors Have to Manage Various Obligations

    As you can imagine, the duties of an executor can be rather complex. They have to manage various obligations, depending on the size and complexity of the estate.

    For instance, they may need to collect rental income from rental properties. They might be required to make investments to keep assets from depreciating. They could have to take over running a business, as well as related business duties like making operational decisions.

    In addition, they have to maintain all physical property in its current condition. This can require performing maintenance and repairs as needed. To better manage these various obligations, executors can seek outside help from accountants, lawyers, maintenance technicians, and other professionals as needed.

    Businessman Working Dashboard Strategy Research Concept

    Executors May Have to Deal with Conflicts

    Aside from managing the estate of the deceased and carrying out their intentions, many executors have to deal with conflicts from relatives, friends, and beneficiaries who dispute the will or disagree about how assets should be divided.

    Understanding the role and responsibilities of an executor of an estate in New York is essential to select the right person. It is highly recommended you inform the person you name as executor so they can also review what duties and responsibilities they will need to perform.

    For further assistance in preparing your will and selecting an executor or obtaining help with the probate process in New York, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

  • Questions for a Probate Attorney: How Does the New York Probate Process Work?

    The New York probate process will vary, depending on whether the deceased had a will or trust or had no such documents expressing their last wishes. After someone dies, their assets, property, and other belongings, which are called their estate, have to be distributed to surviving loved ones, called heirs.

    In addition, any outstanding debts must be paid. There are also estate taxes that have to be paid. To accomplish this, the probate process is used in New York through what is called the Surrogate Court. The role the Surrogate Court plays in the probate process will vary, depending on the documentation or lack thereof the deceased had.

    Business man pointing the text: What Are The Rules?

    Ultimately, their primary role is to oversee the estate and approve distributions to the appropriate parties. Before any distributions can be made to charities and surviving loved ones, the estate must first pay outstanding debts and estates taxes.

    If the deceased had a will or trust, then they should have named an estate executor. This person is responsible for performing specific tasks to distribute the estate. They will obtain permissions from the Surrogate Court as needed throughout the probate process.

    If the deceased did not have a will or trust or did not name an executor, the Surrogate Court will appoint an estate administrator. The administrator has similar responsibilities as an executor. If the surviving loved ones do not believe the estate is being handled correctly, there are specific legal actions they can take, such as contesting a will or requesting the removal of the executor.

    What Steps Are There in New York Probate Process?

    In general, there are three basic steps in the New York probate process, as follows:

    Step 1: Inventory and Appraise the Estate

    The executor will need to review the deceased’s assets. They have to make an inventory of all property. Afterward, they must assign a monetary amount to each item, which could require expert appraisals. The overall objective is to determine how much the estate is worth.

    Step 2: Satisfy Outstanding Debts and Pay Taxes

    The next step is to pay any outstanding debts the deceased owed. This could include loans, credit cards, and other financial obligations. The executor will also pay estate taxes owed. If there is not sufficient cash to pay all debts and taxes, the executor can liquidate assets to ensure they are paid.

    Step 3: Distribute the Remaining Estate to Heirs

    If there is a will, then the executor makes distributions based on the last wishes of the deceased. In some cases, where assets had to be liquidated, the heirs may not receive the assets or property promised in the will.

    If there is a trust, the probate process will vary slightly, depending on the type of trust the deceased had. If there was no will or trust, then the court-appointed administrator takes care of each of these steps.

    senior adults discussing important topic

    Please keep in mind, this is just an overview of the process. New York State probate rules, the size of the estate, and other factors that could require additional steps are not covered here. Nor should the information presented here be considered legal advice. This is why it is important to make a list of questions for a probate attorney to get the answers and legal advice you need.

    A probate attorney can also help with the execution of a will or trust, as well as provide guidance for the executor during the probate process. For further legal advice and assistance with the New York probate process, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

  • Contesting a Will in New York State

    If you believe a will isn’t valid, you may be able to contest it. This means challenging it after it’s submitted to the court for approval.

    It’s important to know that a person can set up their will in any way they see fit, even disinheriting their relatives if they wish. A will is presumed to be valid unless proven otherwise.

    However, even if the person who created the will (the “testator”) took all the appropriate steps to create it, the will doesn’t become a legal document until after they die. In most cases, the will must still go through the New York probate process to be proved valid by the county Surrogate court. 

    Last will and testament papers with pen and glasses

    Who Can Contest a Will?

    Anyone who is affected by a will can challenge its validity after it’s submitted to the court for approval. Contesting a will can be a complicated, costly, and time-consuming process, so it’s not to be taken lightly.

    Here are a couple of hypothetical examples in which someone might contest a will:

    • A child who would have inherited more if there had been no will. According to New York state law, if a person dies without a will, the surviving spouse (if there is one) will automatically receive $50,000 plus 50% of the estate balance. The children inherit everything else. So, if there are two kids, they would each receive 25% of the remaining balance of the estate. Now suppose the parent who died left a will indicating that one sibling should only receive 10% of the estate. If no will had existed, that sibling would have gotten 25% of the estate. In this case, the sibling might choose to contest the will.
    • A wife who believes her husband (the testator) created a will under conditions of undue influence. Suppose the husband’s sister threatened to never let him see his favorite nephew again if he didn’t write her into his will. To avoid being cut off from his nephew, the husband leaves half of his estate to his sister, even though that’s not what he wanted. In this case, the man’s wife could contest the will.

    Grounds for Contesting a Will

    Under New York Law, you can contest a will based on the following grounds:

    • Lack of mental capacity: Someone can claim that the testator was not of sound mind at the time they made the will. The person contesting the will must prove that the testator didn’t understand what they owned, who their relatives were, or what was in their will around the time the will was created because of a cognitive impairment, such as dementia; a mental illness, such as depression or schizophrenia; or another factor, such as being on a mind-altering medication. Obtaining the testator’s medical records can help strengthen the case.
    • Lack of validity: Someone can claim the testator didn’t follow the proper protocols for creating a valid will. In New York, this includes signing the will at the end of the document and having it signed by two “disinterested” witnesses, among other requirements.
    • Undue influence: Someone can claim the testator only made the will because they were influenced by a person (e.g., a family member, a friend, or someone else) to divide their property in a way that went against their wishes.
    • Duress: Someone can claim that the testator only made the will because they were under threat or extreme pressure to divide their property in a way that went against their wishes.
    • Fraud: Someone can claim the testator only made the will because another person lied to them, thus influencing the way they divided their property.
    Gavel resting on table

    The Process of Contesting a Will

    Unfortunately, it’s not all that uncommon for a caregiver, friend, relative, or someone else with ulterior motives to take advantage of a person with cognitive or physical impairments—in fact, it’s one of the most common reasons wills are contested. If you believe someone took advantage of you or your loved one with a will, you may be able to overturn it with an attorney’s help. 

    Your attorney will file a claim to overturn the will with the court, along with any supporting documentation. The court will decide at trial whether the will is valid. Until the trial is complete, the executor may not distribute the estate. If the court finds the will to be invalid, they will either:

    • Throw out the will
    • Admit only a portion of the will
    • Admit an earlier will in its place
    • Not admit any existing wills and instead distribute the estate’s assets among the deceased person’s relatives in accordance with the laws of New York.

    If the court finds there is no valid will, the assets will be distributed as follows:

    • If there is a spouse, and no children, the spouse receives 100% of the estate.
    • If there are a spouse and children (biological or adopted), the spouse receives $50,000 plus half (50 percent) of the estate balance; the children inherit everything else (if there are two children, each would receive 25 percent of the remaining balance, for example).
    • If there is no spouse but there is a child or children, they will receive an equal distribution of the estate; if there are two children, for example, each will receive 50 percent.
    • Adoptive children have the same inheritance rights as biological children.
    • Stepchildren are not entitled to receive anything from the non-biological parent’s estate (but they will inherit from their biological parents).
    Two people speaking with judge

    Get Legal Help Contesting a Will

    Hiring an experienced attorney to help you contest a will can greatly improve your chances of a favorable outcome.

    Joseph A. Ledwidge PC is an expert New York estate attorney representing executors, heirs, beneficiaries, fiduciaries, and other interested parties. He and his associate counsel have 32 years of combined experience. If you entrust us with your case, we’ll plead every possible ground for a will challenge.

    Call us for a no-obligation consultation today at (718) 276-6656. We serve clients throughout the state, including Jamaica, NY, Queens, NY, and Brooklyn, NY.

  • What Does Administering a Trust Involve?

    Part of estate planning requires you to decide if you want a will, a trust, or both. Some people choose to have a will for specific items and a trust for others. There are benefits of having a trust in place beside or in addition to a will. To help you learn more about administering a trust and what is involved in a trust administration, it is important to know the basics about trusts.

    What Is a Trust?

    A trust is a legal document that describes various properties, bank accounts, investments, and other such assets owned by a person. This person is called the Settlor when creating a trust. The Settlor designates what property and assets will be included in the trust and transferred to the trust administrator or Trustee.

    The job of the Trustee is to administer the trust according to the instructions of the Settlor. The Trustee has specific requirements like ensuring they protect the property and assets of the Settlor until such time they are to be distributed after their death.

    Are There Different Types of Trusts?

    Financial Advisor Talking To Senior Couple At Home

    Two general types of trusts exist in New York. A person can have a testamentary trust or a living trust. With a testamentary trust, the trust does not become active until the Settlor dies. With a living trust, the trust becomes active while they are still alive, once it is executed correctly. Administrating a trust also begins while the person is still alive when they create a living trust.  

    In addition, there are two different types of living trusts: Irrevocable and Revocable. An irrevocable living trust is where the trust cannot be changed, amended, terminated, or modified without permission from the named beneficiary. Furthermore, any assets listed in an irrevocable trust are transferred out of the estate.

    A revocable trust, on the other hand, retains the assets as part of the Settlor’s estate. This allows the Settlor the option to modify, change, terminate, or amend the trust anytime they desire. While the Settlor is alive, any income or other financial gains continue to be distributed to the Settlor as stipulated in the revocable trust. It is only after their death that the assets and money are distributed to the named beneficiaries.

    How Does a Trustee Perform Trust Administration?

    A Trustee can have several assigned responsibilities and duties to carry out for the Settlor long before they pass away. One of the most common reasons for family disputes and legal issues is because of improper trust administration by a Trustee.

    Administering a trust requires more than just attempting to honor the wishes of the Settlor. A Trustee must also be prepared for:

    • Asset Management and Protection
    • Investing Trust Resources as Directed
    • Trust Investment Management
    • Managing Trust Distributions
    • Maintaining Accurate Trust Records
    • Adhering to the Terms of the Trust
    • Maintaining Communications with the Settlor
    • Maintaining Communications with Beneficiaries After the Settlor’s Death
    • Handling Conflicts Between Beneficiaries
    • Knowing When a Trust Has to Go Through the New York Probate Process
    • Filing and Paying Any Required Taxes

    Trust administration requires selecting the right Trustee. This is why most people retain the services of a New York probate attorney to act as their Trustee rather than a close family friend or relative.

    Couple Discussing Paperwork With Financial Consultant

    By retaining an attorney for administering a trust, they remain objective and can help alleviate any family disputes or other issues that could arise after your death. Additionally, they can offer sound legal estate, will planning, and trust administration advice to ensure your assets and property are protected and distributed according to your intentions.

    For further information about trusts and assistance in creating one, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!

  • Contested vs. Uncontested Divorce Procedures

    Going through a divorce is seldom a pain-free experience, but married couples in New York State who are seeking to dissolve their union have access to multiple options, which increases the chances of finding the type of arrangement that suits the preferences of both parties.

    For many, divorce brings up images of acrimony and tense arguments held in intimidating courtrooms, but it doesn’t have to be that way. Divorces aren’t all alike. They vary considerably in the amount of time they take to reach a resolution, as well as the specific stages in the process that must be gone through. They can end quickly and with minimal fuss, or they can drag on for years.

    The primary divide is between contested and uncontested divorces. To put it simply: Contested divorces are those where the terms must be settled in court due to persistent disagreement between the spouses; uncontested divorces are those where both parties come to an agreement without the need for a trial.

    Whether you’re going through a contested or an uncontested divorce, there are a number of tricky nuances involved in the process, so you should consult with an experienced attorney for legal assistance as early as possible. You can find the help you need by contacting Joseph A. Ledwidge, P.C., a family and divorce lawyer who offers legal services to clients in the New York City metro area. Keep reading for more information on the differences between contested and uncontested divorces in New York State.

    Divorce negotiation between couple - pairs of hands over contract

    What Is an Uncontested Divorce?

    In an uncontested divorce, both spouses are able to agree on all issues concerning division of property, child support (if any), and other relevant matters involving the apportioning of assets or responsibilities that the couple had shared during the marriage.

    As you might guess, an uncontested divorce is the less expensive and less time-consuming of the two options. It is also much less burdensome on the legal system. For this reason, the courts tend to encourage divorcing couples to figure out an agreement as amicably as possible, dispensing with the need for judicial intervention.

    An uncontested divorce does not necessarily mean that an agreement is reached without the aid of attorneys. In fact, it is highly recommended that persons going through an uncontested divorce seek out legal representation to ensure that their rights are adequately protected. Divorces, even uncontested ones, can become very complicated.

    One big advantage of an uncontested divorce is that it gives spouses an opportunity to work out an agreement that both parties find acceptable. If this isn’t possible, the courts will have to figure out how to divide assets—and that may end up being far less than satisfactory for one or both parties.

    In an uncontested divorce, there are a number of legal forms that must be filled out and sent to the court. Again, this is best done under the supervision of a legal representative.

    What Is a Contested Divorce?

    In a contested divorce, the spouses are unable to agree on one or more matters relating to the dissolution of the marriage, whether that is alimony, child custody, division of property, or another issue.

    A lot of times, there is only one point of contention that prevents the spouses from reaching an agreement—for instance, they may agree on dividing all assets equally, but can’t settle on a child custody arrangement. This is, therefore, a contested divorce. The more elements involved in the divorce case—minor children, investments, homes, sources of income, etc.—the more likely it is that a matter will arise that the two parties will be unable to agree on.

    There are other reasons why a couple might end up in a contested divorce:

    • Because New York State law requires the spouses to formally state specific grounds for divorce (see below), this can be another issue that prevents the two parties from coming to an agreement.
    • Contested divorces also include cases where one spouse does not wish to dissolve the marriage.

    It is common for a contested divorce to become an uncontested divorce, as the two parties eventually arrive at an agreement. If such an agreement doesn’t happen, the courts will have the final say in creating the terms of the divorce.

    How to Begin a Divorce Action in New York

    The divorce process begins when one spouse (plaintiff) files a Summons with Notice with the County Clerk’s Office. Then copies of these papers must be served to the defendant by a third party who is at least 18 years of age. In situations where the defendant cannot be located, the plaintiff has to obtain permission from the court to try an alternative method of service.

    The defendant, once in possession of the summons, is required to file a response with the court within a specified time period. If the defendant fails to respond, the divorce is granted by default.

    Two rings on top of textbook definition of divorce

    Acceptable Grounds for Divorce in New York

    Under the laws of New York State, divorcing couples, or the spouse requesting a divorce, must state a reason for the dissolution of the marriage. Traditionally, New York recognized only at-fault divorces—that is, one spouse had to accuse the other of mistreatment or inability to perform marital duties, making the healthy continuation of the marriage impossible.

    That changed in 2010 when New York became the last state in the union to legalize no-fault divorce, which made it possible for couples to end their marriage without needing to hurl accusations of misconduct.

    Today, New York divorce court permits couples to divorce on at-fault or no-fault grounds.

    At-Fault Grounds:

    Any of the following at-fault causes can be declared:

    • Cruel and inhuman treatment –This can include physical, verbal, and/or emotional abuse. Occasional arguments, or an isolated incident that does not fairly characterize the overall course of the marriage, generally will not count.
    • Abandonment – For at least a year, and without good cause. Abandonment can also take the form of a “lockout,” where one spouse refuses to allow the other into the home for at least a year. Another form is “constructive abandonment,” in which one spouse refuses sexual relations for at least a year.
    • Confinement in prison – For a period of at least three consecutive years after the beginning of the marriage.
    • Separation – The couple is already legally separated according to state law (e.g., with a formal Separation Agreement).
    • Adultery

    An at-fault case may be dismissed if its grounds for divorce are based on incidents that took place or were discovered more than five years before.

    No-Fault Grounds:

    Alternatively, it is also possible to file on the no-fault grounds of “irretrievable breakdown.” This means that the marriage has been in a state of failure for at least six months. As this is a no-fault cause, there is no need to assign blame to any spouse for the collapse of the marriage.

    Residency Requirements in New York State

    To get a contested or uncontested divorce in New York State, you must meet residency requirements. These can be summarized as follows:

    • One spouse must have been living in the state continuously for a minimum of two years prior to the beginning of the divorce action.

    OR

    • One spouse must have been living in the state continuously for a minimum of one year prior to the beginning of the divorce action AND the couple were married in New York State or lived in the state as a married couple.

    OR

    • One spouse must have been living in the state continuously for a minimum of one year prior to the beginning of the divorce action AND the grounds for divorce occurred in the state.

    OR

    • Both spouses are residents of New York State on the date that the divorce action begins AND the grounds for divorce occurred in the state.

    All divorce cases are handled by the Supreme Court of the State of New York. (Family Court does not deal with divorce actions.)

    Contact Joseph A. Ledwidge, P.C.

    The foregoing is an overview of the divorce process in New York State and, as such, does not cover all the circumstances that can arise in these cases. To avoid unnecessary complications, it’s always best to have an advocate in your corner. You should contact a divorce attorney who can guide you through the process and ensure your rights are protected.

    Serving clients throughout New York City, Joseph A. Ledwidge, P.C., has years of experience in legal matters relating to marriage and divorce. He handles many family and divorce law matters, from contested/uncontested divorces to prenuptial agreements.

    Call 718-276-6656 for a free consultation.

    Divorce concept: two people sawing toy house in half

  • For What Reasons Do I Need a Probate Attorney in New York?

    In New York, when a loved one dies, their estate, including all bank accounts, investments, assets, and real estate must go through the New York probate process. This process will occur whether the loved one left a will or died without one.

    Sometimes the probate process is still needed if a trust was not properly created. The process can vary and be rather complex depending on several different factors, such as:

    • Is the will clearly written with the intentions of the deceased?
    • When was the will last updated?
    • What is the current marital status of the deceased?
    • If there were recent updates, were they made by a person of sound body and mind?

    Even when the deceased makes their intentions very clear about their wishes for after their death, it does not always alleviate potential tension and disagreements between surviving family members.

    family giving their last goodbyes at the cemetery

    To address certain issues and concerns, it is highly recommended to seek assistance and guidance from a qualified probate attorney. Whether you are the executor of the estate or concerned your loved one’s wishes are not being carried out, having an attorney on your side can be beneficial.

    Other reasons why you need a probate attorney in New York include:

    1. Submitting contracts during probate that are legally binding and valid.

    For instance, a parent leaves their vacation home to their four children. Two of the children have no interest in the home, while the other two want to share it equally. A contract would be needed to sell the interest in the vacation home to the children who want to retain the home.

    2. Addressing conflict and contesting of the will.

    Sometimes surviving family members can contest the will or create conflict between siblings and other relatives. Conflict is especially common in situations where the deceased was married multiple times and had children with each marriage.

    Another case where conflict can arise is when someone believes they should be entitled to more than they were left. For instance, the deceased verbally promised them a certain possession or an amount of money. Yet, when the will is reviewed, those details are not documented anywhere.

    3. Making the New York probate process easier.

    The probate process requires a review of the court to ensure everything is in order and the will is valid. Additionally, the probate process addresses specific issues, such as:

    • Assigning an executor if one is not named in the will or trust.
    • Ensuring proper appraisal of all assets in the estate.
    • Paying any outstanding creditors.
    • Collecting on any debts owed to the estate.
    • Filing the will or trust with the probate petition with the appropriate court in New York.
    • Ensuring assets and wealth are distributed correctly to the right beneficiaries, charities, and legatees.

    Furthermore, having an attorney is vital if a loved one did not leave a will or trust or their intentions are not clear. It is equally beneficial to hire a probate attorney in New York when a loved one died without a will or trust to ensure proper distribution of their estate.

    4. Providing assistance to create a legally binding and sound will or trust.

    Young couple and insurance agent going through paperwork on a meeting

    Taking the time to create a will or trust can help avoid conflict, make your intentions clear, and provide detailed instructions on how you want your estate distributed after your death. Obtaining help from a qualified probate lawyer ensures your loved ones will not have to guess what you wanted and can prevent most conflict.

    For assistance in creating a will or trust, or representation during the New York probate process, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!

  • Child Support by Agreement

    When a couple with children is in general agreement on custody and child support, the best family law advice may be to document that agreement and ensure it meets the basic requirements to be approved by the child support court. In New York State, there are two ways to complete that process.

    We will review both paths to reaching a child support agreement, what guidelines such an agreement should follow, and how to get the help you need to have your agreement approved.

    Reaching Your Own Child Support Agreement

    Cute little girl with dad leaning over vegetable counter.

    When a breakup is civil and both parents are willing to work out all details of their proposed child support plan, this is commonly referred to as “informal negotiations.” They might engage a child support attorney to put their intentions into a legal format and advise them on any changes needed to have it approved by the family court.

    Taking this route can keep legal costs to a minimum while protecting the best interests of the children. Sometimes, even with the best of intentions, the parents might become stuck on one or more key points and need more help to reach their goal of a mutual child support agreement.

    Engaging Expert Help to Reach a Child Support Agreement

    When both parents would like to create an agreement but struggle to do so on their own, they can choose Alternative Dispute Resolution or ADR. This process uses tools such as mediation—where a professional mediator works with the couple to resolve the obstacles, or collaborative law—where their respective lawyers negotiate the key factors together to reach a child support agreement before going to court.

    So, even if the parents cannot reach an agreement themselves, they still have an opportunity to have a say in the outcome by resolving their disagreements through the ADR process. A family law consultation is a good way to begin this procedure and find out more about the resolution tools available to you.

    What Should a Child Support Agreement Cover?

    Woman lifting baby into the air.

    Each state has guidelines which cover minimum requirements for child support, as well as requirements to get custody of a child. When crafting your own agreement, it will have to be in line with state law, fully outline the details of payment amounts, frequency, and duration, as well as being a voluntary and informed choice for both parents.

    These factors must be true and documented:

    • There is an open court case between the two parents.
    • Both parents are aware of their child support rights and state guidelines.
    • The parents both consider the agreement to be in their children’s best interest.
    • Neither party is currently on (or has applied for) public assistance.
    • Both parents enter the agreement of their own free will, without being forced or pressured to sign.

    Finding Legal Guidance for Child Support by Agreement

    Reaching a mutual agreement about child support has the same legal backing as court-ordered child support, once it has been filed and approved. The process for changing the order or for child support enforcement remains the same.

    With 32 years of collective experience in Jamaica and Queens NY, the Joseph A. Ledwidge PC law firm knows how to draft agreements that will be approved by the appropriate authorities. When you need a family law attorney who understands your mutual desire to reach your own agreement for the security of your children, call us to get started.

  • Child Support by Court Order

    Because New York family law states that a child should be supported by both parents, child support can be ordered by the court. If your children are going without support from an estranged parent, or if you have received notice of child support claims against you, engaging a child support attorney can provide guidance in navigating this process.

    Let’s discuss what a child support order means, how it is created and enforced, and how to resolve obstacles or disagreements during this process.

    What Is Child Support by Court order?

    mom holding her son

    A child support order is the legal means by which a family court judge documents the requirement to pay child support and in what amount. A support order establishes the right of the state to pursue child support enforcement actions if the parties do not abide by the terms of the court order.

    What Is Included in a Court Order for Child Support?

    Following state guidelines, the court order will outline the details and responsibilities of the parents regarding financial support. These elements will likely be part of a New York State child support order:

    • Confirmation of parental status, usually by paternity testing, birth certificate, or voluntary acknowledgment of parenthood
    • Identifying the children who require support
    • Evaluation of the parents’ ability to pay
    • Establishing which parent will pay support to the other
    • Outlining the details of payment, including method, amount, and frequency
    • Establishing penalties for violation of the support order which may include wage garnishment and additional fines

    How Is a Child Support Court Order Established?

    There are typically three ways that the state determines child support by court order is necessary. These include:

    As Part of a Divorce Proceeding

    Along with determining child custody, property division, and responsibility for marital debts, the divorce order will usually establish child support. If there is an existing prenuptial agreement, this will be taken into account, but the court must approve any agreements between the parents.

    A prenuptial agreement definition of child support may not meet state minimums, so it must be reviewed during the process. The requirements to get custody of a child are also determined by state guidelines.

    By Request of an Unmarried Parent

    When the parents were never formally married, the custodial parent may petition for child support by court order. Once parenthood is established, the process moves forward according to state requirements.

    When Assistance Services Are Utilized

    When a single parent applies for public assistance, the government agency involved may notify the appropriate authorities that child support is not being received. The Child Support Agency may file on behalf of the child.

    Resolving Obstacles in Establishing Child Support by Court Order

    father teaching his son to ride a bicycle

    A New York state law known as the Child Support Standard Act (CSSA) has established a clear formula for child support which will be followed in most cases.1 There are, however, many unique situations that might bring you to a family law attorney:

    • If the non-custodial parent resides in another state, the laws of that state may apply in the resulting court order for support.1
    • If the proceedings take a long time to complete, the child support order is often backdated to the date of the initial request.
    • If the whereabouts of a parent are unknown, child support agencies will provide assistance in locating them.

    When You Need Guidance About New York Child Support Orders

    Many times, it is helpful to have an experienced child support attorney on your side during this process. Obtaining a fair and equitable support order starts with presenting the request or response in a way the family court will accept.

    If you need help navigating the child support process in New York, schedule a consultation with Joseph A. Ledwidge PC. In Jamaica, Queens, and our other locally placed offices, you will find a compassionate advocate to guide you to resolution.

    Source:

    1. https://www1.nyc.gov/site/familycourtdivision/child-support/child-support.page

  • Planning a Destination Wedding? How to Make Sure Your Marriage Is Legal in the U.S.

    It’s not hard to see why destination weddings are so popular. Getting married abroad is romantic and adventurous. It’s a chance to live out your wedding fantasy—whether it’s getting married like royalty in a medieval castle or barefoot on a white sand beach.

    A destination wedding is a vacation and a wedding rolled into one, with your most cherished friends and family members present.

    Wedding couple holding hands on a beach.

    There’s a lot more to planning a destination wedding than booking a venue and making travel arrangements, though. If you plan to tie the knot in another country, you need to make sure you understand and comply with the rules and requirements of that country and your own. A family law attorney can help.

    Here are some important things to know about getting married overseas.

    The U.S. doesn’t recognize all marriages performed abroad.

    Marriage is a declaration of love, but it’s also a legally binding agreement. Laws vary by country.

    In general, marriages that abide by the laws of the country where you get married are considered legally valid in the U.S.—but not always. You’ll need to check with the attorney general’s office in the state where you live to determine whether your marriage abroad will be recognized. The attorney general’s office will tell you which steps you’ll need to take to make your marriage valid.

    Some countries have a residency requirement.

    Some countries require you to establish legal residence for a specific number of days or months in order to get married there. Let’s look at France as an example.

    French law requires that you 1) reside in the country for at least 40 days in order to have a legal marriage ceremony or 2) have family ties in France that you can prove, such as a parent(s) who lives in the country. In either case, you must provide documentation, including:

    • Passport
    • Recently issued birth certificate (must have been issued less than six months prior to marriage date in the U.S. or less than three months prior to marriage date in France)
    • Proof of address (e.g., rental agreement, utility bill)
    • Proof of nationality
    • Proof of divorce/death certificate if previously married
    • Information about witnesses (of a civil marriage ceremony)
    • Certificat de Coutume from U.S. embassy

    To get married in France you must have a civil ceremony in a town hall (mairie), after which you can have your own secular or religious ceremony.

    If you don’t want to become a resident and don’t have a parent living in France, you’ll need a special dispensation (exception) to get married in the country, but these are rarely issued.

    Another option is to get married in the U.S. (at your local city hall, for example), and then have a symbolic ceremony in France with all the bells and whistles.

    There’s more to it than this, but you get the idea—there’s a lot to figure out when planning a wedding abroad.

    Wedded couple in front of large mansion.

    Some countries require an affidavit proving you’re eligible to get married.

    This document attests that previous legal relationships (e.g., marriages) have ended, either through divorce or death. Divorce and death certificates must be translated into the local language and authenticated.

    No agency or organization in the U.S. issues this kind of document, so you must obtain it at an American embassy or at your regional consulate office (the diplomatic office for the country where you want to get married).

    An embassy or consulate office will not attest to your marital status, but they will notarize the document with your statement of eligibility to get married; most countries will accept a notarized document from an embassy or consulate office.

    Some countries require blood tests.

    Premarital blood tests check for things like venereal disease, genetic diseases, and rubella. Some countries, including Mexico and Haiti, require both partners to get premarital blood tests. It’s possible to be denied a marriage license if you or your partner test positive for certain diseases, depending on where you want to get married. Or, you may be required to disclose the test results to your partner.

    Blood tests are also required in a few places in the U.S., including Montana, New York, and the District of Columbia. 

    Bride and groom kneeling in front of priest at church.

    Laws vary by country for religious ceremonies.

    In most countries, a local official (civil or religious) performs marriage ceremonies. If you plan to have a religious marriage in another country, you may have to obtain specific documents to get married there.  

    For example, in Spain, nonresidents are eligible to be married in a Catholic church only if they obtain a nihil obstat. It’s basically a clearance document stating that the bishop of the couple’s home church gives the okay for the couple to marry at a Catholic church overseas.

    You may need parental consent.

    The legal age to get married varies by country. As a general rule, most people under age 18 must have a written statement of consent signed by a parent(s) before a notary public. Some countries also require that you get the statement authenticated at a consular office for the country where you want to get married.

    There’s more than meets the eye when planning a destination wedding. Marriage is a contract of sorts, and each country has different requirements. If you have your heart set on a wedding abroad, make sure you understand the rules and requirements for obtaining a marriage license in the country where you plan to have your wedding. It’s a good idea to have a plan B (and C) in case the red tape becomes too cumbersome in your first country of choice.

    Get Legal Help Planning Your Marriage Abroad

    Your wedding is too important to leave to chance. The last thing you want is to discover your marriage isn’t legally valid once you return from your honeymoon. The experienced family law attorneys at Joseph A. Ledwidge P.C. can help you understand the legalities of getting married abroad.

    We can guide you through the process to ensure your paperwork is filed accurately and documents are properly translated. Most importantly, we can give you peace of mind during the already stressful process of planning the perfect destination wedding.

    Contact us online or by phone at 718-276-6656 to arrange a no-obligation consultation with an experienced New York family law attorney. We serve clients throughout the New York metro area including Queens, NY, Jamaica, NY, and Brooklyn, NY.