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.
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.
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).
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.
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?
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.
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!
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.
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.
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.
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).
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.
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.
- 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.
- 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.
- 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.
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.
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.
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!
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
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?
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.
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?
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
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.
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.
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:
- 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.
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.
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.
Marriage is a declaration of love and commitment to your partner, but it’s also a legal agreement. When you get married, you have certain responsibilities to your spouse.
New York is an “equitable distribution state.” That means marital property must be divided equitably and fairly when a couple divorces—but it doesn’t necessarily mean assets will be split equally.
A prenuptial agreement can help protect your assets after you get married. Read on to learn the pros and cons of prenuptial agreements.
What Is a Prenuptial Agreement?
Also called a prenuptial contract or “prenup,” a prenuptial agreement is a contract between two future spouses. It’s often drawn up by a family law attorney and spells out how property will be divided after a couple divorces or if one spouse dies.
In New York, a prenuptial agreement must be drafted before a couple gets married, and it goes into effect as soon as they marry. The agreement must be in writing and signed by both spouses before a notary public. Oral agreements and unsigned agreements are not legally valid.
Who Should Get a Prenuptial Agreement?
We tend to think of rich people and celebrities getting prenuptial agreements, but people of modest means can benefit from having one.
Even if you don’t consider yourself wealthy, it’s impossible to know how your life might change over the years. A prenuptial agreement can protect any assets you acquire during your marriage if you and your spouse get divorced down the line.
There are other considerations. If you’re a single parent, a prenuptial agreement can help you protect your child’s inheritance or personal savings if you and your future spouse eventually divorce. It can also be helpful if you want to keep certain assets separate, like a family home or business.
If you don’t have a prenuptial agreement, the court gets to decide how to divide property after you die or if you divorce.
Pros of Prenuptial Agreements
Prenuptial agreements can be customized to your specific needs and situation. They can be beneficial if:
• You have substantial wealth and want to protect it.
• You want to protect the inheritance rights of children and grandchildren from a previous marriage.
• You have a business or professional practice and want to protect it if you divorce.
• Your future spouse has significant debt (a prenuptial agreement can protect you from responsibility for that debt).
• You want to outline the details of decision-making and responsibility sharing before you get married.
• You want to limit how much spousal support you must provide after a divorce.
Cons of Prenuptial Agreements
There are also disadvantages to having a prenuptial agreement:
• Some people find prenuptial agreements distasteful and worry that such an agreement creates a sense of distrust before a marriage even begins.
• If you’re a low- or no-wage earner, a prenuptial agreement might make it difficult to sustain your lifestyle after divorce.
• You might give up your right to inherit your spouse’s estate when they die.
• You might compromise on something in the prenuptial agreement that creates a burden or financial hardship down the line.
• If you contribute to the success and growth of your spouse’s business, you may not be able to claim a share of that increase in value.
In short, a prenuptial agreement has advantages and drawbacks. It can do more than protect assets. It can also protect kids and grandkids from a previous marriage and help outline how decisions are made and each spouse’s responsibilities during marriage.
Prenuptial agreements often have a silver lining: They encourage future spouses to discuss expectations before they get married. This can help prevent disagreements about hot-button issues like finances that often lead to divorce.
Get Professional Help When Drafting a Prenuptial Agreement
Prenuptial agreements aren’t one-size-fits-all. They can and should be customized for your situation. The experienced family law attorneys at Joseph A. Ledwidge P.C. will work with you to draft and review a prenuptial agreement that satisfies the needs and wishes of you and your future spouse.
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.
Like a house or a car, in the event of a divorce, a business is viewed as an asset. Going through a divorce while owning a business can be a messy situation, but there are New York laws that are aimed to protect the business owner while also being fair to the spouse.
If you’re facing the situation of a divorce while also being a business owner, it’s beneficial to have a divorce lawyer who can explain your rights and protect your assets. Keep reading to learn more about what you can expect during a divorce as a business owner.
Marital vs. Separate Property
When a marriage is dissolved, the marital estate is divided. This includes any owned homes, bank accounts, cars, and other common assists. Business assets are distributed based on state law. In this instance, the court will determine if the business and business assets are marital property or separate property.
What determines if property is marital or separate? Separate property includes property that is:
• A gift
• Acquired prior to the marriage
Separate property also includes any property that is designated as separate in a prenuptial agreement or postnuptial agreement. Property that doesn’t fall into one of these four types of separate property is designated as part of the marital estate and will be divided as appropriate.
This means that any business assets acquired during the marriage will be divided and distributed. Any assets owned before the marriage are considered to be separate. Any business appreciation that occurs over the course of the marriage may be designated as marital property.
If the spouses co-own the business, the business and its assets are considered marital property. The same stands true if the business was started post marriage.
Community Property vs. Equitable Distribution
Divorce, as it pertains to business assets, is as clear as mud. There are other factors that come into play during divorce settlements. Business assets are also handled differently, dependent on whether the assets are in a community or equitable distribution state.
In community property states, almost all property gained during a marriage is considered to be joint property. Any property that was owned before the marriage is determined to be separate. States with community property laws allow marital assets to be split 50/50.
On the other hand, states with equitable distribution laws determine the division of the marital estate based on a “fair” division for each spouse. There are many factors that are considered to determine who gets what in an equitable distribution scenario, including the age of each spouse, the length of the marriage, and the future earning potential of each spouse.
Trust Us to Protect Your Rights
Navigating a divorce on your own can be a challenge and, when business ownership is thrown into the equation, the situation becomes even more complex. Divorce laws and related property laws are extremely nuanced. To ensure that your rights are protected during the divorce, it’s beneficial to hire a lawyer that specializes in marriage and divorce cases.
Our team at Joseph A. Ledwidge PC offers some of the top divorce lawyers in the state. If you’re looking for a divorce lawyer in Brooklyn, NY to protect your rights and your assets, we’re the firm for you.
Contact us today at 718-276-6656 for a free phone consultation. We look forward to working with you and ensuring your business assets are designated in a legal and fair way.
Listing a beneficiary(s) on retirement and life insurance accounts is not only smart, but many financial institutions require it. It’s common to ask: If I’ve named beneficiaries, do I really need to go to the trouble of creating a will or trust to avoid probate and the possibility of needing a New York probate attorney?
The answer is: In most cases, yes. Read on to learn why.
Why You Need a Will
Probate is the legal process through which a deceased person’s estate assets are distributed to beneficiaries and heirs. Designating a beneficiary(s) on your retirement accounts and life insurance policy can help you avoid probate since beneficiary designations are legally binding and supersede your will (if you have one).
Your beneficiaries will only need to provide a death certificate to the administrator of the IRA/401(k) or insurance policy in order to have the account/assets transferred.
There’s a lot more to consider than whether assets from retirement accounts or insurance policies will easily pass to your beneficiaries without the need for probate after you die.
Who will sign your tax return? Who will pay your bills and deal with your creditors?
If you’re married, you may think the obvious answer is your spouse. The reality, though, is that your spouse can’t automatically take legal steps on behalf of your estate. You need to designate them or someone else as your executor, and creating a will is the way to do that. Your executor effectively becomes your estate’s legal representative.
Here are other reasons to create a will and not rely on beneficiary designations alone:
- Financial institutions are not infallible; they may lose/misplace records listing your beneficiaries.
- You may forget to update beneficiaries after major life changes, such as marriage, divorce, or the birth of a child.
- Your attorney loses all power once you die; only an executor/estate trustee can manage your estate after you die.
- What if you and your spouse die at the same time (in an accident, for example) and your spouse is the beneficiary on your accounts? A will allows you to list backup beneficiaries.
In short, everyone needs a will. Relying on beneficiary designations is not enough.
Why You Also Need a Living Trust
A will is an important document for indicating who should get what when you die, but creating a will doesn’t guarantee your estate won’t go to probate. In fact, a large percentage of estates go to probate even with a will. That’s why you need a living trust.
In New York, creating a living trust can help you avoid probate for virtually any asset you own, including real estate, bank accounts, retirement accounts, vehicles, household goods, and other assets.
You’ll need to transfer ownership of your property to yourself as the trustee of the trust and name someone as your successor trustee after your death; your successor trustee will have the authority to transfer your assets to beneficiaries named in your trust without the need for probate court proceedings. An estate attorney can help you create a living trust.
What if I Don’t Want to Create a Will or Trust?
If you don’t create a will or trust, there are still ways to avoid probate for most of your assets. Assets that don’t need to go through probate include:
- Retirement accounts—for example, IRAs and 401(k)s—for which a beneficiary was named
- Life insurance proceeds
- Funds in payable-on-death (POD) bank accounts
- U.S. savings bonds with a payable-on-death designation
- Pension plan distributions
- Wages/salaries/commissions owed to the deceased person
- Vehicles and household goods that are passed on to immediate family members under state law
- Property held in joint tenancy with right of survivorship
- Real estate held in tenancy by the entirety—a form of joint ownership allowed only for married couples in New York
- Property held in a living trust
Also, New York offers simplified probate proceedings for “small estates.” If property (excluding real estate and funds that must be set aside for surviving family members) has a gross value of $30,000 or less, you can use the simplified small estate process in New York.
Even if you have significant assets, you may still be able to use the simplified process. For example, suppose an estate consists of a $500,000 house that’s jointly owned with right of survivorship, a $100,000 bank account with a named payable-on-death beneficiary, a $200,000 IRA, and a vehicle owned solely by the deceased that’s worth $15,000. The only asset subject to probate, in this case, is the vehicle; theoretically, then, this estate could use the simplified probate process.
Why Naming Beneficiaries Is Not Enough
Going back to the original question about whether beneficiary designations are enough for retirement and life insurance accounts … if you’ve designated beneficiaries for these accounts, the assets can be transferred to them without a will or trust.
This doesn’t resolve the issue of not having an executor to sign tax returns and deal with creditors and other issues. If you don’t have a will or trust, the probate court will have to appoint an administrator for your estate. In the state of New York, the law gives spouses priority. You may not want your spouse to act as your executor after you die, or your spouse may not want that role—this is an important consideration.
It’s also important to consider who your beneficiaries are. If your beneficiaries are very young, for example, you might want account proceeds to be held in a trust until they’re older and mature enough to handle an inheritance, especially a large one. When you create a trust, you designate a capable trustee to invest and distribute the assets in the best interests of your beneficiaries.
The bottom line: The best way to ensure the smooth transition of assets after you die is to create a will and revocable (changeable) living trust.
Get Expert Help with Estate Planning and Probate Administration
Navigating trusts and estates law and understanding probate requirements is complicated. We can help.
Joseph A. Ledwidge PC is an expert New York probate attorney representing executors, fiduciaries, heirs, beneficiaries, and other interested parties. He and his associate counsel have 32 years of combined experience and can help you avoid probate through skilled use of trusts and other means.
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.
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