• The Pros and Cons of Prenuptial Agreements

    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.

    prenuptial agreement on a table

    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.

    hand of a man put on an engagement ring on the finger of the bride

    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.

  • Divorce and Business Ownership

    lawyer and client sitting at table with divorce decree and wedding rings

    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
    • Inherited
    • 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.

    family Law book with legal gavel

    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.

  • Are Retirement Accounts and Life Insurance Part of Probate, and Do I Need a Will or Trust?

    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.

    Two men negotiating over a will

    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.

    Last will and testament papers with pen and glasses

    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.

    Revocable Trust typed on paper

    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.

  • What Is a Trustee and What Are Their Duties?

    A trustee is a person or entity (such as a corporation) formally appointed to manage the assets (real estate, retirement accounts, etc.) of a trust; the trustee does this for the benefit of the beneficiaries of the trust.

    It’s common in families for parents to appoint one or more of their kids to be trustees.


    What Is a Trust?

    last will and testament document with pen and glasses

    In trusts and estates law, a trust is a fiduciary relationship (meaning a relationship involving trust) in which one person (the trustor) formally gives another person (the trustee) the right to hold assets on behalf of a beneficiary or beneficiaries. 

    One of the main goals of creating a trust is to avoid probate, which is the process by which a deceased person’s estate is distributed to heirs and designated beneficiaries; the probate process also handles paying off creditors.

    While ultra-wealthy families might come to mind when you hear the word trust, they’re not just for rich people—trusts are a useful way to manage assets for people of different wealth levels.


    Is an Executor the Same as a Trustee?

    No. An executor carries out a person’s wishes as outlined in their will. They are responsible for settling the estate, initiating court procedures, filing the deceased person’s tax returns, and distributing assets to beneficiaries, among other duties.

    A trustee, on the other hand, is responsible for managing assets that will be held in an ongoing trust (in other words, assets that will not be immediately distributed), communicating with beneficiaries, and filing ongoing tax returns, among other duties.

    Often the executor and the trustee are the same person. This is why many professionally drafted wills reference an “executor(s)” early on and then later mention a “trustee(s).”


    What Are the Duties and Responsibilities of a Trustee?

    fiduciary duty concept written on a paper

    Trustees have several duties and powers. First and foremost, they must act in accordance with the terms of the trust and the law. Other duties and responsibilities include:

    Understanding the terms of the trust, including who the beneficiaries are
    Ensuring trust assets are safe
    Investing the trust assets to ensure assets are productive for current and future beneficiaries
    Distributing trust assets in accordance with the trust agreement
    Making decisions, such as when beneficiaries are to receive payments
    Filing tax returns as needed and keeping records of statements, tax returns, and other documents
    Communicating regularly with beneficiaries and providing them with statements of accounts and tax reports

    Trustees have a duty to act in the interests of the trust’s beneficiaries, to act with reasonable care, and to not personally profit from the trust. A trustor can appoint a family member (such as a child or sibling) or hire a professional trustee, who, legally, can charge for their services.

    A trustee plays a vital role in managing a person’s estate after they die. It’s a big responsibility. An estate planning attorney can help you understand in more detail the duties of a trustee.


    Get Expert Help with Estate Planning and Probate Administration

    lawyers consulted on various lawsuits

    Navigating trusts and estates law and understanding the duties and responsibilities of trustees and executors is challenging. 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 the 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.

  • What Are My Inheritance Rights After My Biological Parent Dies?

    It’s a common question, and the answer is: It depends.

    In general, even biological children have no legal right to inherit a deceased parent’s property. This is why it’s so important for parents to list their children as beneficiaries on accounts and create a will and trust through a reputable estate planning attorney.

    If your parent died, and you’re confused about your inheritance rights, consult with a New York probate attorney. Read on to learn more.


    Parent Died with a Valid Will

    last will and testament document with pen and glasses

    In general, a will is valid if it has been written by someone of legal age (usually age 18) and of sound mind (this is called “testamentary capacity”).

    The will must be signed, dated, and witnessed by two “disinterested” witnesses, meaning they will not personally benefit from the will; these are just a few of the conditions that make a will valid.

    A valid will should mention all children and clearly indicate what each child is entitled to. If the will is clear and all children are accounted for, each child’s share of the property will be distributed.

    It’s not always so clear cut, though. Sometimes a will might be outdated—if a parent created a will before their last child was born and never updated it to include the new child, for example. In this case, many states will still recognize the new child’s rights to some of the assets. The state may assume that the parent accidentally, not intentionally, disinherited the child.

    Another common situation is when a parent remarried before they died and left their entire estate to the new spouse. In this case, the stepparent may be able to completely disinherit the child or children of the deceased parent unless the will states otherwise.

    Even if a child is not named in the will, it’s still possible to pass on certain assets through the designation of a beneficiary. For example, a parent can make what’s called a beneficiary deed to leave real property (real estate) to a child. A parent can also designate beneficiaries on other types of accounts, including bank accounts, certificates of deposit (CDs), retirement accounts like IRAs and 401Ks, and insurance policies and annuities.

    So, if you were not named in the will but you’re the listed beneficiary on financial or insurance accounts, these assets can be transferred to you without reference to the will.


    Parent Died Without a Will

    lawyers consulted on various lawsuits

    If your parent died without a will, it’s called “intestacy.” According to the New York Estates, Powers and Trusts Law (EPTL):

    • If there is a spouse and there are no children, the spouse receives 100 percent of the estate.
    • If there is a spouse and there are 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).

    Again, if you’re designated as a beneficiary on accounts like IRAs and 401Ks, these assets can be transferred to you without reference to a will if one exists.


    Get Expert Help with Estate Planning and Probate Administration

    Navigating trusts and estates law and understanding your inheritance rights 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 the 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.

  • Challenging Paternity in New York State: What You Need to Know

    Every child has a biological father, but, in the state of New York, a child born to an unmarried mother has no legal father. Unmarried parents must establish paternity (a legal term for fatherhood) in one of two ways:

    1. By signing a form acknowledging paternity
    2. By petitioning a court to determine paternity

    Even if you signed an acknowledgment of paternity form at the time your child was born, there are things you can do to challenge paternity if you believe you may not actually be the child’s biological father. A paternity attorney may be able to help. Read on to learn more.

    What Legal Paternity Means for Fathers

    Father Holding Their Child

    Legal paternity means your name will appear on the child’s birth certificate and you are responsible for providing the child with certain benefits, including:

    • Financial support (child support, social security, veterans benefits, and inheritance rights)
    • Your name on the birth certificate
    • Medical or life insurance (from either parent if available)
    • Access to information about your genetic and family history so the child can learn of any inheritable medical problems

    If you’re deemed the legal father of a child, you also have certain responsibilities to the mother of the child, including shared parental responsibility and financial support.

    Who Can Petition for Paternity?

    The state of New York allows the following individuals to petition the court to determine paternity:

    • The mother
    • The person alleging to be the father
    • The child
    • The child’s guardian, next of kin, or another person acting in a parental role
    • A representative of a public welfare agency
    • A representative of a charitable or philanthropic organization

    Determining Paternity: Then and Now

    Before DNA testing became available, the only way to determine paternity was with blood type. Although blood testing has become more sophisticated over time, it is not a perfect science and has limitations for accurately determining paternity.

    Today, DNA tests can determine whether a man is a child’s father with almost 100% accuracy. All it takes is a simple swab of the cheek.

    While DNA testing kits are available over the counter in many pharmacies, New York state requires DNA tests to be ordered by a court or medical professional to establish legal paternity.

    Grounds for Challenging Paternity

    Paternity DNA Lab Test Results

    Medical tests to determine paternity are usually accurate, but not always. The situations below are grounds for challenging paternity:

    • Tainted lab results (evidence of errors in lab results or a lab that has a history of substandard practices)
    • Proof of infertility or sterility
    • Proof that test results were tampered with
    • Proof of the mother’s infidelity during the marriage (when an opposite-sex couple is married, the man is presumed to be the father unless otherwise proven)

    How to Challenge Paternity

    Section 516-a of New York’s Family Court Act allows a person to rescind an acknowledgment of paternity within 60 days of the date the acknowledgment became effective, or within 60 days of an administrative or judicial proceeding relating to the child.

    If you signed an acknowledgment of paternity more than 60 days ago, you still may be able to challenge it if any of the following apply:

    New facts: New information has come to light indicating you may not be the father.
    Duress: You signed the acknowledgment of paternity under duress (e.g., threats of violence).
    Fraud: There is evidence of fraud.

    The first step is usually to file a complaint with the court. The court may then order tests, including blood and DNA tests for you and the child. They may also seek evidence, such as medical documents, to determine paternity.

    Once the court has reviewed all the evidence, it will issue an order naming the legal father. The parents must then work out issues around child support and custody.

    What About Same-Sex Couples?

    In same-sex parenting situations where the parents were not married when the mother became pregnant or when the child was born, it’s important to establish parentage.

    In New York, it used to be that if a same-sex couple separated, a non-biological parent had no legal rights of parentage after the breakup.

    This changed in 2016 when the New York State Court of Appeals ruled that the same-sex partner of a child’s biological parent should be legally recognized as a parent, even in cases where the couple was not married and the non-biological parent did not adopt the child.

    This decision overturned a 25-year precedent that previously left same-sex parents with no recourse to visit or gain custody of their child after a breakup.

    Get Help Legally Challenging Paternity

    Father Holding Child's Hand

    The stakes are high. If you’re established as a legal parent of a child, by law you must financially support the child.

    The laws on paternity and parentage can be complicated. Considering the enormous amount of responsibility that comes with being a legal parent, you deserve a fair process to determine paternity. A skilled paternity attorney can help you understand whether you have a case to challenge paternity and help you resolve child custody issues.

    The law offices of Joseph A. Ledwidge PC have a track record of success helping clients challenge paternity and resolve joint custody and child support issues. We start by listening, and then we develop a legal strategy to fully meet your needs.

    Whether you need a child support lawyer, child custody lawyer, or just an experienced family attorney in Queens, Manhattan, and throughout NYC, schedule a free phone consultation at 718-276-6656 today.

  • How Does One Become Legally Emancipated?

    Legal emancipation is the process of parents or legal guardians relinquishing their rights over a minor child before the time they reach the age of majority, which is 18 in New York. Once a child is emancipated, they are considered an adult, except they cannot vote until they turn 18 nor consume alcohol until they turn 21.

    The thought of being emancipated from one’s parents can seem appealing to many teenagers. The growing pains associated with becoming a young adult can often lead to family disputes where the teen’s and parents’ objectives do not coincide with each other.

    For instance, parents might have specific rules the teen must follow. However, the teen feels they should be allowed more freedom to do what they want when they want, and to not be held to any specific household rules.

    Mother argue with her teenage son

    Before you think getting emancipated will solve all the issues with your family, you need to make sure you understand exactly what emancipation entails. Once emancipated, the teen must be able to financially support all aspects of their life, including but not limited to:

    • Health Care
    • Health Insurance
    • Food
    • Housing
    • Utility Bills
    • Clothing

    In addition, the teen will have to work full-time to cover these living expenses. They may also still have to attend school.

    Most teens do not fully think about the financial impacts emancipation will have on their lives. They can also overlook other legal aspects—like they can be held responsible for any contracts they sign and can be sued.

    Emancipation of Minors Process in New York

    Unlike other states which have an emancipation of minors process or statute, there is not one in New York. Emancipation typically occurs in New York during another court procedure, such as a child support hearing, custody hearing, or general family court petition.

    New York requires parents and legal guardians to support minors until they turn 21. Once they turn 21, New York recognizes they are emancipated. Prior to turning 21, there are some other situations where the state can recognize emancipation, as follows:

    • The minor gets legally married.
    • The minor joins the military.
    • The minor is 18 years or older and works a full-time job.
    • The minor has completed a 4-year college degree before their 21st birthday.

    Courts, on the other hand, can decide a minor is emancipated if they meet the following conditions and there is a valid reason for emancipation:

    • The teen is 16 years or older.
    • The teen has a full-time job they work year-round.
    • The teen fully supports themselves without any financial support from the parents.
    • The parents have no control over the teen.
    • The teen is not in the foster care system.
    • The teen lives apart from their parents.

    programmer working late night at his home

    Rights of Emancipated Minors in New York

    If the court finds a minor to be emancipated, then the minor has specific legal rights as follows:

    • The teen can reside in their own home.
    • The teen can go to school in the neighborhood where they live.
    • The teen is allowed to keep all of their earnings from their full-time job.
    • The teen can request child support from their parents if the parents were responsible for the teen leaving home.
    • The teen can apply for and receive certain public assistance benefits.

    However, emancipation is not viewed as permanent in New York. If the teen’s situation changes, parents can still be held responsible to support the child until they turn 21.

    While emancipation may seem appealing to many teens, it is not a process that should be taken lightly. There are valid reasons why a teen might want to become emancipated.

    It is highly recommended to speak with family law attorney Joseph A. Ledwidge PC to get answers to any questions you have and about whether it is possible to seek legal emancipation in New York. Please feel free to call 718-276-6656 for a free phone consultation today!

  • The Breakdown of Family Law

    Family law encompasses many subjects, all dealing with domestic relationships and the children born as a result of these relationships. When family matters must enter a courtroom to be resolved, family law is what governs which procedures, regulations, and rules apply. This breakdown of them will offer some clarity if you need legal assistance for a domestic matter.

    judge gavel with books on table

    Before Marriage

    Family law can apply even before a couple enters into a marriage or another domestic partnership. A prenuptial agreement signed by both partners legally clarifies the financial intentions of each party. This offers financial protection to each party in the event of a future separation or divorce.

    Marriage, Other Unions, and Property

    Marriage falls under the topic of family law. However, living together also falls under this category. Depending on the state you live in, same-sex unions will also come under the family law designation.

    Should a marriage or other union deteriorate and you find yourself filing for divorce or getting an annulment, this will also be a family matter. Property acquired during the marriage, as well as alimony payments, will need to be settled fairly, and these issues are addressed in court if the parties cannot reach a settlement otherwise.

    newborn baby holding mother's finger


    Along with domestic partnerships, children are also part of family law. Couples who wish to adopt children or who have children via surrogacy will need to adhere to family law regulations. The protection of children against neglect and abuse, as well as matters relating to juvenile offenses and their adjudication, is also included here.

    Reproductive rights and the paternity of a child are both subjects of family law. The custody agreement and visitation are typically sorted in a courtroom setting, and visitation may or may not require supervision, depending on the circumstances of the parental relationship. This is also true when documents relating to these matters must be modified.

    Monetary Matters Related to Children

    When a couple’s domestic union dissolves, the parent with custody is entitled to child support payments, which are determined in family court. These payments are meant to help the parent meet those financial obligations related to caring for the child.

    The Rights of Family Members

    The direct relatives of parents, as well as the parents themselves, all have certain rights with regard to the children of dissolved unions. Family law helps ensure these rights are protected and adequately represented in court.

    Family Law Is Complex

    Every case has its own specific circumstances and challenges that require expert knowledge to resolve. A separation from spouse requires the rights of each party in a family law case to be supported to the fullest extent, property to be fairly divided, and the amount of support received to be fair for all parties.

    The attorneys at Joseph A. Ledwidge PC possess a combined 32 years of expertise in family law. We are prepared to represent clients for all family law matters, from alimony to visitations. Your result matters; get in touch today for a free consultation from a family law attorney.

  • Deceased Relative Debts: Who Is Responsible?

    A loved one’s death is a significant loss that, if you are responsible in some way for their wills and estates, can also leave you with the job of sorting out their final accounts. Many have discovered debts in their loved one’s name, which need to be repaid. Yet who is responsible for a deceased person’s debt? You might be surprised to learn that there is more than one answer.

    What Is an Estate, and Why Is It Important?

    An estate comprises everything of value that a person owns at the time they pass away. Generally speaking, any bills left behind after a loved one’s death must be paid from their estate. This can be done by selling their assets to raise money for the debts or be as simple as writing creditors a check from their bank account. What’s left after these payments can then be distributed via the probate process.

    If there isn’t enough in a person’s estate to cover their debts, it may simply be that creditors don’t get paid. However, this only applies to certain kinds of debt. Other kinds can end up the responsibility of family members. Let’s take a closer look at these different debt types and what debts are forgiven at death.

    Closeup of credit card

    Money Owed on Credit Cards

    If your loved one has a balance pending on one or more credit cards and had a joint account with someone, that person will have to pay the debt. However, should there be no assets left in a loved one’s estate to pay these bills, creditors will not receive any money. This is because credit card debt is unsecured, meaning that the lender has no rights to claim assets for the purpose of debt repayment.

    However, there are many ways around this. For example, a credit card company can send your loved one’s account to a collection agency, which may hound you with phone calls to try to get you to pay them. As well, they can order a lien to be placed on your loved one’s assets until you pay them, which can make it impossible for you to pay any other debts.

    A credit card company may also try to sue you for the money owed, which can lead to garnished wages.

    Money Owed on a Mortgage

    If your loved one co-owned their home with another person, or if the house will be inherited by a specific individual, the co-owner or devisee (a person to whom real estate is left by the terms of a will) will be responsible for the remainder of the mortgage payments. In the event that your loved one was the only one who owned the home, their estate is responsible for paying this secured debt.

    Money Owed on Home Equity Loans

    Another secured debt, an outstanding amount left on a home equity loan must be repaid. If the lender wants the full amount owing right away, the house may have to be sold if there are insufficient funds in the estate. However, anyone who is inheriting the home can ask the lender about the possibility of taking responsibility for these payments.

    Money Owed on a Vehicle

    If you are responsible for your loved one’s estate, you will have to pay any outstanding car loans from that estate if there are sufficient funds to do so. Like mortgages, car loans are secured debts. That being said, if the loan cannot be paid for, the asset—which is the vehicle—becomes the collateral and can thus be seized following the placement of a lien on it by the lender.

    Should a friend or family member inherit the vehicle, it will be their responsibility to continue paying the loan. Otherwise, they run the same risk of repossession.

    Graduation cap on top of bundles of cash

    Other Loans that Are Owed

    If your loved one had a student loan that was granted privately from a family member, that debt should be repaid by their estate. Once again, if there was joint ownership of the loan via a co-signer, then the co-signer is responsible. As well, because student loans are unsecured, a lender may have no choice but to go unpaid. As far as what debts are forgiven at death, other lenders may dissolve loans immediately following notification that the person has passed away.

    Common Issues That Are Completely Avoidable

    There are many things that can go awry when trying to settle a loved one’s outstanding debts, even if they obtained estate planning services. However, none of these is impossible to rectify.

    Pay Old Debts First

    Before accepting any money, beneficiaries must pay any old or outstanding debts left by their loved one. In some cases, a beneficiary can be faced with some unwelcome surprises in the form of hidden debts.

    In New York State, it is assumed that creditors will do their due diligence to collect money owed, so it is not mandatory to post a notice to creditors in your local newspaper. The statute of limitations on debt after death states that creditors have six years from the date an executor was appointed to make their claim.1 Creditors who don’t do so have their claims rendered invalid.

    Never Speak to Creditors

    Another common issue has to do with speaking to creditors or collection agencies. Among the tactics they will use to try to recover their money, members of these organizations will resort to feigned empathy and a friendly and conversational tone to try to coerce repayment.

    However, you are not obligated to speak to any creditor regarding your loved one’s debts. The best thing to do is to never make any commitment for payment and to end the conversation as quickly as possible.

    Man looking at phone

    Taking Personal Responsibility for a Loved One’s Debt

    “Are beneficiaries responsible for a deceased person’s debt?” is a very common question. Unfortunately, some have ended up paying for their loved one’s debt from their own pocket after having a conversation with a creditor.

    Although creditors are legally permitted to contact the relatives of a loved one to get the contact information for the person responsible for paying their debts, they are not legally permitted to try to coerce you into paying the debt yourself. None of your loved one’s beneficiaries is responsible for the personal payment of their outstanding debt.

    The above is true even if your loved one’s estate is insolvent or contains more debt than assets. If this is the case, you may not receive an inheritance, but you won’t be responsible for debt repayment, either.

    Any money that is in the estate will be used to pay for funeral expenses, secured loans, preferential debts (social insurance and tax contributions) and credit cards or personal loans, in that order.

    Deceased Relative Debts Can Be a Complicated Process

    Even if you do your homework and your loved one left detailed instructions, you can still encounter unexpected problems with settling their debts. The worst thing about going through this process is that you are already feeling emotionally vulnerable and overwhelmed by what needs to be done, and creditors are perfectly willing to take full advantage of this.

    You also need to ensure that your loved one’s wishes are followed exactly as they requested, as this can also lead to liability on your part. Having an estate lawyer on your side, you can communicate to creditors that, despite your grief, you will not be taken advantage of. You can also ensure that your attempts to execute their wishes are well within legal boundaries.

    However, you need to ensure that the person chosen to represent you is well-versed in New York State probate law. When it comes to your loved one, there is simply no replacement for an attorney who has the right amount of knowledge and experience in probate law.

    The lawyers at Joseph A. Ledwidge, PC have 32 collective years of experience in probate and estate administration law. No matter the legal issue surrounding your loved one’s estate, we are well-prepared to represent your interests. At our firm, your result matters. Discover the benefits of working with attorneys who understand your cost and time concerns as you deal with your loss. Contact us today to arrange your consultation.


    1. https://statelaws.findlaw.com/new-york-law/new-york-civil-statute-of-limitations-laws.html

  • How to Administer an Estate

    In the period of time following the passing of a loved one, it can be difficult to know exactly how to proceed. This is especially true of following probate procedure and administering an estate, which can be a complex and lengthy task if there the decedent held many assets or claims are disputed.

    Administering the estate in the correct manner is essential to ensure the wishes of the will are met, state and federal trust and estate laws are followed, and everyone receives their fair share of an inheritance. In this guide, we’ll talk you through the basic steps of probate and estate execution.

    Appointing an Executor

    The executor is the person tasked with dealing with the bulk of the estate administration. They will identify and catalog the deceased’s assets, pay off outstanding debts, finalize tax payments, and ensure distribution is in accordance with the will.

    Choosing an executor is almost always the first step once the probate process has begun. If one has not been explicitly named in the will, then they will be chosen by the court. In most cases, the court-appointed executor will be the surviving spouse or closest relative.

    the word probate on a stamp

    The Next Steps

    Once an executor has been appointed, it will be their duty to carry out the following steps. As probate law varies from state to state, the order and timing may vary slightly. In general, however, administration is carried out in the following order:

    • Location of Assets – All assets, including real estate, money, stocks, and possessions must be recovered and inventoried. Note that some assets won’t go through probate, such as properties held in living trusts, joint bank accounts, life insurance payouts, and retirement funds with beneficiaries.
    • Assessment of Value – The executor must then determine, usually through a third party, how much each asset was worth at the time of death. Many states require that this final inventory of assets be submitted to the court, along with how the values were reached.
    • Notification of Creditors – All creditors of the decedent must be identified and notified to determine final debts owing. An advertisement in the newspaper is usually placed to alert creditors who would be otherwise unknown to the executor.
    • Settlement of Debts and Taxes – All debts are paid off with the assets of the estate, liquidating physical property as necessary. Estate taxes will also be paid if required by the state.
    • Finalization of Tax Returns – The executor will file a final tax return for the deceased, for their personal income during that year.
    • Distribution of Estate – Finally, any remaining assets will be distributed to beneficiaries according to the will. Any assets left to minors may need to be placed in trust, which the executor will also have to oversee.

    sign for your house

    Legal Complications

    While attempts have been made to streamline estate administration—the most notable being the Uniform Probate Code—this process is not always as straightforward as it may seem. Difficulties can arise if:

    • The will is contested
    • The deceased is intestate (i.e., does not leave behind a will)
    • Debts cannot be fully repaid
    • The assets are especially complex or located in other states

    Comprehensive estate planning is crucial to avoid these costly, time-consuming, and often emotionally taxing complications. Without the right estate attorney, there’s no guarantee that an estate will be handled the way it was intended to be.

    Is your estate in the right hands? If you want to be sure, or if you have any questions about administering a loved one’s estate, you need an attorney who will put your needs first. Contact Joseph A. Ledwidge PC at (718) 276-6656 for a free phone consultation.