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Almost anyone can file for bankruptcy protection. There are certain requirements such as having a
permanent address, ownership of property or a business in the United States. Each state also has
their own residency requirements. Analysis of your circumstances would be required in order to
determine what chapter you should file and what debts would be eligible for discharge.
No. You don't even have to be insolvent. Many times, people are able to continue to pay their financial obligations but the amount that they pay has placed a severe burden on them. They have barely enough money left over at the end of each month for necessities. The choice to file is a personal one that should be made after you have considered certain things such as if you earn enough to pay your debt; how much you owe; if bankruptcy will get rid of the type of debt you owe; if you are you facing any type of collection activity such as a lawsuit or wage garnishment and how long it would take you to pay off your debt.
Most debt is dischargeable however, there are some that are not. In a Chapter 7, income taxes, property taxes, child support, alimony or maintenance, fraudulent debt, most types of student loans and debt that is incurred in relationship to a DWI, or restitution for a criminal offense are not dischargeable.
Yes, provided you are current on your payments and the equity that you have in your home and/or car does not exceed the allowable exemptions.
No. In some cases, there is no joint debt and debt is held by only one spouse or the other. In that case, only the indebted spouse may want to file. The other spouse's income has to be listed on the bankruptcy Petition but they will not be listed as a debtor. If, however, one spouse is a co-signer, if they do not file, the creditor has the right to pursue a judgment against them.
Provided that the debt is listed on the petition and is discharged, you do not have to pay. The debt has essentially been erased. You cannot be sued for the discharged debt and all collection activity must cease immediately upon filing.
Yes. Once bankruptcy is filed, there is an automatic stay that stops all collection activity. The Bankruptcy Court will notify your creditors that you are a debtor in bankruptcy and provide them with you case filing number. All collection activity must cease at that time. A creditor who continues to pursue an action is in violation of federal law and subject to sanctions. Once the debt is discharged, the you are no longer obligated for payment of the underlying debt.
Estate planning is a process allowing you to arrange how you want your assets to be managed and distributed upon your death. Sometimes, if you have limited assets, limited beneficiaries, and limited instructions on how to distribute your assets to the beneficiaries, planning is pretty straightforward. On the other hand, the more assets, the more beneficiaries, and the more instructions may require an estate plan that is more complex and varied.
Generally, there are two components of estate planning with one involving the legal aspects of it and the other involving the non-legal aspects of the plan. Your estate planning attorney can help with both. Legally speaking, your lawyer will review your personal and financial situation and create documents that address the latter. Non-legally speaking, your lawyer will develop an investment strategy for retirement purposes.
An estate plan will include the documents that accommodate your specific needs. It may involve some or all of the following:
Probate is the legal process of transferring the property from a deceased person's estate to their heirs or beneficiaries. It is overseen by the local probate court.
Dying without a will means you die intestate. Your assets and belongings will get passed to your heirs according to your state's intestacy laws.
In rare cases, the differences in state laws could make it invalid. More commonly, if you moved to a state that views marital property differently from your former state of residence, the change in laws could result in complications. It is wise to revisit your will with an attorney in your new state after moving.
While you do not need a lawyer to write a will, doing so is a considerable risk. A last will and testament that was not written by a lawyer or that was created using an online form are more likely to be challenged, deemed invalid, or leave significant assets unaccounted for, which can create confusion and unforeseen outcomes.
People need to have testamentary capacity to make a valid will. This often requires an understanding of the property being devised in the will, who is going to receive it, and the purpose and function of a will. People with Alzheimer's or dementia may struggle with testamentary capacity. The best way to make sure they have a will in place is to hire a lawyer to help.
If you die without a will, your estate will pass to others through your state's intestacy laws. If you have no children, then property will be disbursed to family members. If there are no heirs according to your state's intestacy laws, then the state may acquire the property. So, even if you do not have children, you still need a will if you do not want the state to make decisions for you about who gets what from your estate.
Keep in mind you do not have to create a will to benefit only family. A will allows you to pass your estate in a way that will serve what matters most to you: this could be preserving the financial wellbeing of your partner, parents, or siblings, but also setting money aside for the care of a pet, or assisting a charitable organization aligned with your values.
No. It is crucial to update your will after getting a divorce so that your most recent wishes are reflected in it.
It depends on the language in the will. If your will specifies an action that will happen to unnamed offspring (for example: “All of my property equally to my children”), the interpretation would be different than if you made a specific bequest to a named child or children. You should always revisit your will after having a child.
A will – also called a last will and testament – comes into effect when its creator dies and directs the executor on how to transfer the property in the estate. A living will, on the other hand, comes into effect when its creator is alive but incapacitated – it tells others what the creator's preferences and medical decisions are regarding their healthcare.
A trust is a pool of assets that is set aside to be managed by a trustee, for the benefit of someone else, called the beneficiary.
A trust sets aside some assets for a trustee to manage for the sake of a beneficiary. The assets set aside in the trust do not go through probate, simplifying and expediting its transfer out of the estate. The trustee must follow the instructions set out by the trust.
Yes. Many trusts are testamentary trusts, and are created in the decedent's will. Lots of other trusts are made during the person's life to set aside some assets outside of their will.
No, trusts can be created by anyone who wants to set aside money for someone but who does not want to give them the money in a lump sum. They are especially common when the beneficiary is underage or is unable to manage their own affairs.
If your goal is to protect your assets from Medicaid then an Irrevocable Trust is what you need. This is because Medicaid considers any assets that you can withdraw from a trust as assets for Medicaid and Medicaid will require you to use those assets towards the cost of your care. An Irrevocable Trust can, however, protect your assets in the event you enter a nursing home.
However, if your goal is to avoid probate and you want maximum control, a Revocable Trust may suit your needs and as its name states, a Revocable Trust can be revoked by the creator. In some instances both an Irrevocable and a Revocable Trust may be recommended.
Medicaid will look back 5 years to see what assets you transferred during the previous 5 years, including the transfer of assets to a trust. Therefore, it is important to plan sooner rather than later.
A trust can avoid the probate process and fees associated with Surrogate's Court and streamline the transfer of your assets. It can also protect your assets and avoid the pitfalls of placing assets directly into a child's name. A trust can also provide for management of your assets should you become incapacitated.
When spouses jointly own property and then one spouse passes away, the property is automatically passed to the surviving spouse. An example would be the marital home owned by both spouses.
A guardian is a person who is responsible for someone else's well-being. People often appoint a guardian for their underage children in their will or for their adult children with special needs. These legal guardians can make legal decisions on behalf of their charges, much like a parent.
Naming a legal guardian for your underage children is a common provision in a will. You also have the ability to appoint a conservator for adult children who may be unable to make certain decisions.
If you do not appoint a legal guardian via a will, the court will appoint one upon your death. For this reason, it is important even if it seems like commonsense to make sure you designate a guardian in your will.
A common way to ensure a special needs child continues to receive the care they need is to appoint a guardian for them and to create a trust fund in their name. Special needs child trusts are specific for this purpose.
A common way to care for pets after their owner passes away is to state in the will who is to care for the animal and then create a testamentary trust for the benefit of the pet.
The costs for an estate planning attorney depends on multiple factors. First, what all do you want in your estate plan? How much in the way of assets do you have? The more complicated your estate plan, the more costs you will expend. Second, how does the attorney charge? Is it by flat fee, which is most common among estate planning attorneys, or by hourly rate? In the former, less services may be included in the fixed rate, but in the latter, hours can add up quickly. You want to be sure exactly what you are getting (and not) for the price you are paying.
A power of attorney is essential for people who are unable to make important medical or financial decisions on their own behalf, usually because they are incapacitated or suffering from a medical condition. There are five types of powers of attorney, each with their own purpose:
Many people assume that only the wealthy need to have a Will. However, the truth is that many people, with and without great wealth, need to have a Will in case the unexpected occurs.
People who should have a Will include but are not limited to:
Only people who do not have assets, a spouse, and/or children may not need a Will.
A Will needs to be created and often updated when certain events occur:
Whenever you have a major life change, it is time to make or update your existing Will.
A Will states who should inherit your assets when you die. If you have children, you can designate who you want to have custody of your children if you pass away. A Will also allows you to appoint an executor for your estate. This person will be in charge of administering your estate according to the terms of your Will when you die.
There are certain things that are best dealt with through other means rather than a Will. Things that are not appropriate and should be avoided in a Will include:
An estate planning attorney can advise you on the best way to handle these matters. Many of them can complement your Will and work well in an estate plan.
In New York State your parents can disinherit you from their will. There should be specific disinheritance language, otherwise it can be challenged during probate.
There is always a possibility someone will challenge your Will after you pass away. Whether or not that challenge is successful is a different question. Some of the most common reasons Wills are challenged include:
Having a lawyer help with the process of creating your Will can help prevent successful challenges.
It is possible to create a Will without the assistance of a lawyer. However, New York State is very specific regarding what is required for a Will to be considered valid. If you create the Will on your own, and it does not meet the legal requirements for validity, it may not be enforceable.
If you or a loved one has been injured, your first step is to contact an attorney. Please contact our firm at 315-255-3368 or complete the contact us form on this page. The lawyer will assess whether or not your case is strong enough to be likely to have a favorable outcome for you. If so, you may be able to recover compensation for lost wages, medical bills and other damages.
Personal injury law in New York allows for injury victims to recover compensation for physical pain and suffering, emotional trauma, lost wages, medical expenses and other damages. An experienced personal injury lawyer will be able to determine your eligibility for compensation and hire expert witnesses to help prove your claim.
The New York personal injury statute of limitations for filing a lawsuit is three years from the date of the accident or injury. The statute of limitations for New York wrongful death claims is two years from the date of death. Similarly, the time limit for filing a medical malpractice lawsuit is two years and six months. Once the New York statute of limitations expires, the injured victim will be prohibited from filing a lawsuit to recover damages. If you believe that you have been injured you need to contact an attorney as soon as possible.
In most cases, you will have to prove that the person who caused your injury was negligent. To do so, you must show that this individual owed you a duty to not injure you, but failed to uphold this duty. Furthermore, you must prove that there was a connection between this breach of duty and your injury. Lastly, you must prove that you suffered damages as a result.
The more evidence that you have the better your chances are when pursuing an injury claim. If you've been injured, it's important to ensure your legal rights are protected. Write down everything about your accident, including names and contact information of witnesses. You may also want to obtain evidence of your injury or accident, such as a photograph of a totaled car. Next, contact an attorney as soon as possible!
The Will is required to be probated only when the decedent died possessing assets valued at $50,000 or greater or if the decedent died leaving Real Property. This does not include assets for which there are designated beneficiaries (e.g., joint accounts, “in-trust-for” accounts or insurance proceeds not payable to the estate).
You are not required to hire an attorney to take care of a probate proceeding on your behalf. If you feel comfortable doing so, you may handle a simple probate yourself. However, many probate matters are challenging and you would be better served by having an experienced probate attorney handle your case. Some complications that may arise include difficulty in locating interested parties for jurisdictional purposes, defects in the language of the Will and the potential for someone contesting the Will.
If your loved one died without a will (intestate) and there were assets the estate will still need to be administrated. The procedure is referred to as administration by the Surrogate's Court. Under an administration the estate is distributed under rules of succession. See NYS EPTL § 4-1.1
A simple probate may take a few weeks depending upon the Surrogate Court Schedule. With more complex matters probate can be a lengthy process. Testa Law Firm will make sure that the process is completed as quickly as possible.
Generally the cost of Probate in New York State is between 2.5% to 10% of the total value of the gross estate. The main probate costs are the executor's commission and attorney fees.
Executing an estate can often be a very time consuming process, the Executor is entitled to a commission as compensation for their time and efforts. An Executor commission is set by New York law. See SCP § 2307. Commissions range from 2-5% depending on the size of the Estate.
New York probate attorney fees are normally the same as the executor's commission set by New York law, described above, but may vary based on the complexity of each case.
Court filing fees range from $215 to $1,250, depending on the gross value of the estate. Other court costs (such as hiring a process server, purchasing a bond, publication fees, etc.) may cost additional hundreds, or even thousands of dollars.
The probate process includes filing all final income tax returns and possibly estate income tax returns. Tax preparation fees range from a few hundred to over a thousand dollars, depending on the complexity of the return.
Professional appraisals are needed when an estate tax return is required or when the heirs or creditors disagree as to the value of the estate assets. Appraisal fees vary widely depending on the type of property.
In most cases a simple residential real estate closing is billed at a flat rate ranging from $795-$1195 depending on the complexity of the transaction. Commercial transactions are billed at an hourly rate. We are happy to work with you on the best fee arrangement to suit your needs.
No, all parties involved in a real estate transaction are entitled to their own representation. It can sometimes be confusing when the bank offers you the services of their attorney. The bank attorney represents the best interest of the bank not the buyer. Bank attorney services are often times offered to a buyer at a discounted rate. Testa Law Firm will match the bank attorney rate. We recommend retaining your own attorney who will represent your interests.
The closing process generally takes 60 days if there is a lender involved. With a cash purchase the closing takes about 30 days. It is important to remember that the contract often gives an elastic “on or about” closing date, this is because there are a variety of factors that can impact the closing time line. Please see Real Estate Closing Process for more detail.
The basic mechanism by which real estate is transferred is a deed. In order to be effective, a deed must adequately (and accurately) describe the property being conveyed, and it must identify the person making the transfer, and the person receiving it. In addition, the deed must be signed and delivered to the recipient. In most jurisdictions, there is an additional step: the deed must be recorded. The reason for recording is that most jurisdictions maintain “Official Records” which list the parties to a transfer of real property. This is very important, because it enables owners to be “registered” on the official records and to give notice to the world that a piece of property has changed hands.
In Cayuga County you must file the Deed along with an RP-5217 and TP-584 with the County Clerk. The fee to file a deed is $40.00 plus $5.00 per page, the RP-5217 is $125.00 and the TP-584 is $5.00. These are typically the buyer's expense.
The seller must pay deed stamps which are claimed on the TP-584. The cost of Deeds Stamps is the $2.00 for every $500.00 of the purchase Price.
Title insurance is your policy of protection against the loss if a claim is made against your ownership because of fraud, forgery, judgments, unpaid real property taxes, liens, or other defects in title. The title insurance company will, at its own expense, defend the title and will pay losses within the coverage of the policy if they occur.
In most cases the buyer will be required by the lender to obtain a Lender's Policy of Title Insurance in order to obtain financing. In some cases the buyer may also elect to purchase an additional Owner's Policy of Title Insurance. If the property is a foreclosure it is recommended to also obtain the owner's policy.
A lender making a loan that is to be used in connection with a purchase of real estate wants to be guaranteed the money will be paid back, and they want more than a signature on a promissory note. One security mechanism is for the borrower to use the real estate in question as security for the loan. That is, the borrower agrees that if he/she cannot make the payments on the loan, the lender can “look to the property” for repayment. The legal method by which this is done is called a mortgage. A mortgage is a document by which the borrower agrees that if he/she cannot make the payments on a loan, the lender may step in and sell the real estate and apply the proceeds of the sale to repay the loan. A Mortgage may also be known as a “Deed of Trust.”
The lender will require that the mortgage be filed with the County Clerk. The fee to file a mortgage is $40.00 plus $5.00 per page. You will also have to pay the Mortgage Tax. In Cayuga County the Mortgage Tax is figured as follows:
1% mortgage tax over $10,000.00 ¾% mortgage tax under $10,000.00 One or two family dwelling over $10,000.00 deduct $25.00.
In any transaction, the parties should deal honestly and forthrightly with each other. Anything less is a species of fraud – either deliberately lying, or telling half truths when questions are asked. The rule of full disclosure is one that requires the seller of property to disclose fully all he/she knows about the property being sold.
The Seller of a property is required to fill out a property condition disclosure. Click here to view a Property Condition Disclosure.
The Seller must disclose everything they know about the property even if it may prevent the buyer from purchasing the property.
Ex. The basement of the property floods in the Spring. It is November and there are no signs of flooding the seller must still disclose that the basement floods in the spring.
Failure to fully disclose information can result in a lawsuit. The seller and only the seller fills out the Property Condition Disclosure. The seller should not be coached on how to fill out the disclosure. If the seller does not know the answer to a questions on the disclosure the seller much state as much.
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