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power-of-attorney--300x200News outlets have recently reported that Senator Dianne Feinstein has given a power of attorney to her daughter.  Concerns over the Senator’s mental competency have arisen as a result.  For the reasons discussed in this post, appointing an agent by power of attorney does not necessarily mean that one is incompetent to handle one’s legal and financial affairs.

In New York State, there are various types of powers of attorney, governed by a provision of the General Obligations Law.  In all cases, the person making the power of attorney is the principal who appoints a person or persons to act on one’s behalf, an agent.  The standard form of power of attorney appoints one or two agents, who may or may not be required to act together.  Up to any of fifteen legal actions can be authorized or all fifteen actions can be authorized.  Some examples of the actions that could be authorized include real estate transactions, banking, insurance and tax matters.  The document needs to be initialed and signed by the principal, as well as notarized and witnessed by two persons.  The agent cannot be a notary or witness to the document, but the agent needs to sign a portion of the document before a notary accepting the role as agent.  This type of power of attorney is effective immediately and is not dependent upon whether a person is competent.

The standard power of attorney can also limit the agent to acting with respect to a specific matter.  For instance, if the principal will not be attending her house closing, she can appoint her attorney for the limited purpose of all matters required to complete a specific transaction.  In this case, only some of the fifteen potential actions will be authorized.  This limitation protects both the principal and the agent, since the agent cannot conduct actions beyond those required for the closing.  The agent appointed could be a spouse or other relative, a friend or one’s attorney.  Depending upon the closeness of the relationship and the degree of trust, the principal will decide whether the authority should be immediate or limited in any way.

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sanfran-300x300Tony Bennett was beloved by those young and old not only as a talented singer, but as a World War II veteran and civil rights icon.  His recent death at the age of 96 was not unexpected.  This post will identify the legal issues that may be raised when a person such as Tony Bennett passes.

Mr. Bennett could be considered to have been in a New York State of Mind, having been born and dying in New York State.  He was considered to be well-liked by all, except for potentially his two ex-wives who may have said “I’ve Got You Under My Skin” as they completed their divorce proceedings.  We have posted previously as to whether an estranged or divorced spouse has the legal right to inherit.  Even a promise to include an ex-spouse in one’s Will, as may be desirable in resolving a divorce proceeding, is not enforceable in New York.  Unless Mr. Bennett had explicitly left assets to his ex-wives in a Will or Trust, these ex-spouses would not have a valid claim to his estate.

The admired crooner was married to his third wife at the time of his death.  Potentially his most recent wife had a conflict with his four children, whose mothers were either his first or second wives.  In addition, two of his four children assisted Mr. Bennett in his career, so he may have wanted to leave them more assets or they stand to gain other financial benefits from having worked alongside their father.  It should be noted that Mr. Bennett’s two daughters were also the children of his second wife and but were born before their marriage.  If Tony had no Will, an estate administration would need to be conducted and proof of paternity would need to be established so that his daughters could legally inherit from his estate.

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rise-help-up-support-climb-300x192This post comes with a “spoiler alert” warning.  Like many, this author has become obsessed with the Max show Succession, not merely as a television viewer, but for the legal issues raised by the storylines.  We  will discuss the multiple legal issues covered in the Emmy award-winning series.

The jaw dropping images of real estate are practically a character on the show.  The townhouse on Fifth Avenue across from the Metropolitan Museum of Art was the primary residence of Waystar/Royco’s founder and patriarch Logan Roy.  The home was shared with his third wife, who obtained the property in their divorce.  After Logan’s death, Marcia and Logan’s oldest child Connor were visiting the home.  Marcia and Connor started a discussion whereby Connor expressed interest in buying the home from Marcia, who said that she was looking for sixty to seventy million dollars.  Connor said he would pay sixty-three million dollars, and they verbally agreed to the deal.  A verbal agreement to sell real estate is not binding in New York State.  The statute of frauds requires that contracts pertaining to real estate be in writing.  Marcia could have backed out of her agreement to sell the property to Connor.  However, Connor and his wife were in control of the townhouse in a later episode, so Marcia must have followed through with her oral agreement to sell the property to Connor.

Estate matters also figure prominently in the series.  Connor introduces a “sticker system” to distribute personal property in the townhouse that he purchased.  Logan’s children were to affix stickers to personal property in Logan’s townhouse to indicate which items they wanted.  Then, the “second tier bereaved,” such as Logan’s last mistress, would have an opportunity to select items.  While this may be a relatively good method with which to distribute personal property, the question arises as to why Connor was in charge of this process.  Was he nominated as Executor of Logan’s estate?  It would not be realistic for Connor to have been officially appointed as Executor within days of Logan’s death.  Another possibility is that Marcia owned these items as part of the acquisition of the townhouse in her divorce and that she decided to sell the items to Connor along with the townhouse.

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hennepin-300x169Several prior blog posts discussed the Supreme Court case Tyler v. Hennepin County, Minnesota, which addressed to whether the government could keep surplus funds in tax lien foreclosures.  Geraldine Tyler is a 94 year old woman living in Minnesota who owed $2,300.00 in unpaid property taxes for her condominium.  Due to her age and safety concerns, she moved to a nursing home and the condominium was sold by the county to pay her unpaid property tax bill.

The property was sold by the County at auction for $40,000.00.  Ms. Tyler’s unpaid tax bill was only $15,000.00 once interest and late fees were included.  So what happened to the extra $25,000.00?  Under existing law in Minnesota, Hennepin County (the County in which the condominium was located), kept the excess funds for itself.

Ms. Tyler then sued, claiming that allowing the County to keep the funds in excess of what she owed in taxes was an unconstitutional taking of her property.  The relevant clause is located in the Fifth Amendment of U.S. Constitution and states that “Nor shall private property be taken for public use, without just compensation.”

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tyler-216x300A prior blog post discussed a case now before the United States Supreme Court relating to surplus funds in tax lien foreclosures.  The case involved a 94 year old woman in Minnesota who owed $2,300.00 in unpaid property taxes.  The property was sold by the county for $40,000.00.  The county then kept the excess funds from the sale, and, under the existing law, did not return the surplus funds to the former homeowner.

Several states, including New York, have similar laws.  In New York State, if your property is sold to pay an overdue tax lien, any funds received from the sale belong to the government, and not to the person whose property was seized, even if they greatly exceed the amount owed in delinquent taxes.

The U.S. Supreme Court recently heard oral arguments on this case.  During these arguments, Justice Elena Kagan asked, if the property was worth one million dollars, and the tax bill was only five dollars, would the county keep the excess funds?  The attorney representing Hennepin County in Minnesota basically answered in the affirmative.

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collectible-figures-values-300x223Some of our clients have valuable personal property, such as artwork, antiques, baseball cards, figurines and the like.  They may wish to leave such collections in their Wills to a particular person.  In other cases, none of the potential survivors is interested in possessing and storing such a collection.  This post will address the best means by which to manage collectibles, known as personal property, in estate planning.

Collectibles by their nature are of interest mostly only to the collector, who may scour small stores and dealers during his lifetime to obtain such items.  The thrill is in the hunt for the unique baseball card that may complete a set and to then enjoy the display of such item in one’s home.  Collections of personal property are not only a financial investment to the collector, but provide a lifetime of enjoyment to the collector.  Potentially one family member may be interested in acquiring the collection after the person’s death.  In such a case, an experienced attorney will advise that the collection be appraised and mentioned specifically in one’s Will, so that it is clear that a particular person should inherit the collection.  Then, the person who will receive the collection may receive less from any remaining inheritance to compensate for the value of the collection.  For instance, if one child is interested in antique furniture owned by her mother, the mother or the Executor eventually appointed by the Surrogate’s Court can have the furniture appraised.  The child who will receive the furniture may receive less cash from the balance of the estate to compensate for the value of the furniture, so that the estate distribution is fair to all involved and the person who appreciates the collection receives it.

Another option is for the collector to give portions of the collection to family members during his lifetime, so that he has the satisfaction of observing the appreciation of family members who receive the items.  This is also helpful if the collector is downsizing and selling her home and may not have room for such a vast collection in the new home.

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mediation-300x150Recently, New York Courts, especially in those in Westchester County, where our offices are located, are encouraging the use of mediation to resolve disputes which have been filed as lawsuits in the Court.  What is mediation, and how does it differ from arbitration?  Mediation is the use of an independent third party, known as a mediator, in an attempt to resolve a dispute that initially commenced in Court. Many Courts now have a mediation program, and are referring cases to mediation, and, in some cases, ordering that the parties use a mediator to attempt to resolve a Court dispute.

Legally, a mediation is different from arbitration.  In arbitration, the parties usually are contractually obligated to use an arbitrator (also an independent third party) by the terms of a previously executed document such as a lease to resolve a dispute.  There are organizations such as the American Arbitration Association (AAA) whose purpose is to provide arbitrators to resolve disputes.  The main difference between arbitration and mediation is that arbitration, when contractually mandated, results in a binding decision reached by the arbitrator after he hears the case.  Once the arbitrator makes a ruling, either party (usually the prevailing party) can file a motion in the appropriate Court to enforce the arbitrator’s decision as a judgment.  For example, if the arbitrator rules, after hearing the evidence from all parties, that one party owes the other $50,000.00, that decision can be entered in Court as a binding judgment, after motion made to enforce the arbitration decision.

Conversely, mediation is generally done on the consent of all parties, and is not binding.  It is an attempt to mediate the dispute between the parties, and can often replace discovery, Court hearings and a trial.  In general, the parties, after appearing in Court for a preliminary conference, can consent to use a mediator in an attempt to resolve the dispute.  More frequently, the Judge in the case may order the parties to use a mediator.  In such cases, the Court generally provides the parties with a list of potential mediators, and the parties jointly choose a mediator.

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