FAQs

Feel free to call us with any questions or problems you may have at any time.

Unlike the deed, the abstract is a valuable document that you will need in the future and which may be expensive to replace if it cannot be located. Therefore, you may wish to allow the Abstract Company to hold the abstract for you, as it will be their responsibility to replace it if it is lost. In this case, simply confirm that the Abstract Company is holding your abstract and keep the name of the Abstract Company and the abstract number with your real estate records. If you intend to hold your own abstract, be certain to keep it in a safe place where you can locate it if you need it in the future.

Some lenders retain abstracts until the mortgage is paid off. Otherwise, the abstract is usually held by the Abstract Company that worked on your purchase. If you wish, you can direct the abstract company to send it to you.

Since the original deed is no longer of significance once it has been recorded, it is not a valuable document and does not require any special attention. However, it is a good idea to keep it with your real estate documents as it may be of use to you in the future.

Once the deed is recorded in the County Clerk’s Office, it will be sent to you by the County Clerk, usually within 6-8 weeks after closing. It is not unheard of for the recorded deed to be lost at some point before the buyer receives it. This is not a problem. Once the deed has been recorded, the transfer is final. Therefore, the original deed is no longer necessary. Your attorney will make certain the original deed gets properly recorded, following which you can always obtain a certified copy of your deed from the County Clerk, showing it has been properly recorded.

Since you never know who might have been given a key before you bought the house, it is always a safe practice to have the locks changed.

Typically, one key is delivered to the buyer by either the real estate agent or the seller’s attorney at closing and the rest of the keys, the garage door opener and any other information and documentation regarding the house is left for the buyer in the house. However, any other arrangements that are more convenient can certainly be made.

Similar to the deposit on the contract, money held in furtherance of a closing is held in escrow and does not earn interest for the buyer, the seller or the attorneys.

Funds cannot be released until the transfer is completed, which means when the transfer documents have been recorded in the County Clerk’s Office. This can take anywhere from several minutes to several days. Usually, the closing documents are recorded within several business hours after the closing. Once the closing documents have been recorded, the proceeds can be released.

The transfer is final when the closing documents are recorded in the County Clerk’s Office. Since most closings take place at the bank attorney’s office rather than the County Clerk’s Office, the documents must first be delivered to the County Clerk for recording before the transfer is considered finished.

Yes.

You will be able to review a preliminary closing statement with your attorney at closing. You will typically receive your final closing statement and closing documents within a week following your closing.

A “Closing Statement” is a written statement, prepared for you by your attorney, which indicates how your money was applied at closing. This may be used by you, both to document and recall your expenditures, and as proof of payment of various expenses for tax purposes.

These are forms that the Federal Government requires be given to you by your lender in connection with your mortgage loan. They are intended to disclose to you the true costs and expenses that you incur in financing the purchase of your home.These forms are prepared by the buyer’s lender and will list most of the amounts paid and received by the buyer, the seller and the lender in connection with a real estate transfer. However, you are obligated only with respect to the figures and information stated on your note and mortgage documents, regardless of what is stated on the Loan Estimate or Closing Disclosure. Buyers will receive the Loan Estimate after applying for their loan, and in most cases they will receive their final Closing Disclosure three days before closing. Prior to 2015, the information in these forms was found in the Good Faith Estimate, Truth in Lending Statement, and HUD Statement.

The buyer receives a credit against the purchase price in the amount of the deposit. This means that the amount the buyer is required to pay at the time of closing is reduced by the amount of the deposit. The deposit itself is either used to pay obligations of the seller (such as real estate agent commissions) or released to the seller.

This is necessary since New York State law requires a seller of residential property to provide carbon monoxide and smoke detectors when the property is transferred and you will be required to sign a sworn statement at closing that this is the case.

Once the closing date has been established, the seller should contact the utility company and advise them to terminate their service in the seller’s name as of the date of closing and the buyer should contact the utility company to request the service be transferred to the buyer’s name as of the date of closing. If this is done substantially simultaneously, there is usually no additional service charge to transfer the service account which would otherwise be charged to the buyer if the seller were to terminate the service and the buyer were to thereafter request new service to the property.

Contact your real estate agent and attorney immediately. If you notice this during your walk-through inspection, it can be addressed and hopefully resolved prior to closing. Otherwise, it may be necessary to pursue the seller for the return or cost of the improperly removed items or for the cost of removing and disposing of items that should have been removed prior to closing, as the case may be.

This is determined by your contract. Absent a provision to the contrary, the seller may remove anything that is not attached. However, anything that is attached is considered a “fixture” and may not be removed.

Contact your attorney. If the problems are sufficiently significant and you notice them during your walk-through inspection, they can be addressed and hopefully resolved prior to closing. If you notice them after closing and they were misrepresented to you by the seller or the real estate agents prior to closing, you may be in a position to seek legal remedies from the seller. Otherwise, you may be out of luck.

You are not responsible for any changes that are the result of “ordinary wear and tear” or deterioration under normal usage. Anything else, however, regardless of how minor, would in fact be the seller’s responsibility until the transfer of title to the buyer.

The real estate agents can assist in scheduling this inspection. If you are not working with real estate agents, the buyer can arrange this through his/her attorneys or directly with the seller.

It is usually your obligation to do so pursuant to the terms of your contract. This permits the buyer to determine that the property is in substantially the same condition as when the purchase offer was made.

Yes. It is important that you do a “walk through” of the property to make certain that the property is in substantially the same condition as when you submitted your purchase offer. Once you have closed, you are deemed to have accepted the property in its present condition (except for matters which were misrepresented to you by the seller). Therefore, you must raise any objections prior to closing. If you discover any problems during this inspection, contact your real estate agent and attorney immediately.

Once you accept your mortgage commitment, notify your insurance agent that you intend to purchase a new home. Your agent will usually request a copy of your mortgage commitment, since it sets forth certain information regarding your lender’s requirements for your insurance. Your insurance agent will prepare your policy and provide you with the documents you will need in order to close. Be prepared to pay a full year of your insurance premium to your agent when you have the policy prepared. Your mortgage lender will not allow the closing to be scheduled without this insurance in place and proof that this has been done.

Although you are certainly entitled to do so, the documents are typically long and technical. Consequently, most people prefer not to read them. Your attorney has reviewed documents of this nature many times, is aware of their content and purpose and is aware of what to look for that might be of concern or importance to you. Most people choose to rely on the experience and expertise of their attorney to review the closing papers, explain their purpose, and address any questions or concerns that might be appropriate.

If these items are included in the purchase and sale contract as part of the purchase price, no additional payment is required. If these items are part of a “side” agreement, they can be paid for at closing or at any time following closing. It is often most convenient to make arrangements for doing so at closing.

Again, depending on the urgency of completing the closing, it may be possible to simply delay the closing of your sale until you are prepared to close on your purchase. If this is not possible, it is not unusual to reach an agreement with either the buyer of your home or the seller of the home you are purchasing, to allow you to either stay in your home following closing, or move into your new home before closing. Any such agreement should be discussed with your attorney and put into writing, as discussed earlier. If such an agreement cannot be reached, you may need to make other temporary living arrangements until your purchase closes.

Depending on the urgency of completing the closing, it may be possible to simply delay the closing of your purchase until you are prepared to close on your sale. If this is not possible, you can apply for a bridge loan. This is a temporary, short-term loan that provides you with the funds necessary to close on your purchase and which is later paid off with the proceeds upon the sale of your home.

The requirement to provide certified funds is not an issue of trust. We are legally and ethically prohibited from writing checks from our trust account unless the funds to back those checks are on deposit in our trust account. We are not permitted to write checks on your behalf using any funds other than those belonging to you. If you were to bring us a personal check, the check will not clear for several days and, as such, your funds will not be on deposit in our trust account when we are writing our checks on your behalf. However, certified funds do not need to clear and are immediately available to be used upon deposit. We are therefore able to deposit your certified check and immediately write the checks necessary to close your transfer.

It is usually necessary for you to bring only one certified check, in an amount sufficient to cover all of your costs and expenses. We will deposit your check into our trust account and we will write all of the individual checks necessary to pay your costs and expenses associated with the closing. Occasionally, specific circumstances require different arrangements to be made. If this should occur, this will be discussed with you prior to closing.

The amount of money required to close is determined, at least in part, by the closing expenses and adjustments. These figures are calculated based upon the closing date and, therefore, cannot be calculated until the closing has been scheduled. Unfortunately, on occasion this allows us to provide you with very little advanced notice of the exact amount required. As the time for closing approaches, however, it may be possible to provide you with an approximation of the amount of funds which will be necessary for closing. Hopefully, this will assist you in making any preliminary plans for the transfer of funds in anticipation of determining the actual figures.

Closing costs and expenses cannot be calculated until the buyer’s lender provides certain figures which are not available until the closing date is set. As such, it is impossible to provide you with your actual closing figures until after the closing has been scheduled. We make every attempt to calculate your closing costs and expenses promptly upon the scheduling of your closing, so that we may provide you with your closing figures as soon as possible. Unfortunately, due to the fashion in which the closing date is scheduled (as discussed above), on occasion there is little advance notice of these figures.

Once the closing is scheduled, we will calculate all of your adjustments and determine all of your closing costs and expenses, including those expenses charged by your lender. We will then advise you of the sum total you will need in order to close the transaction.

A “Loan Estimate” is just that—an “estimate” of your closing costs and adjustments, made by your lender in “good faith” and to the best of its ability. This estimate is made at a very early stage and is based upon various assumptions that are not in the control of your lender. Consequently, some of the figures in the Loan Estimate may not be accurate.

Since each transaction is unique, it is best to discuss any questions you may have regarding fees with your attorney. Since most real estate transactions have the same basic elements in common, we are typically in a position to charge a fixed fee for those services, which can be determined at the outset. However, circumstances may arise which require special attention not contemplated in our basic fee. Under such circumstances, it may be necessary for us to charge a supplemental fee for the additional legal services which are required. Any such fee would be based upon the additional amount of time and effort expended on your behalf. Buyers should take note that the fees charged to you by our firm are solely for our representation of your interests. If you are obtaining a bank loan, an additional attorney’s fee will be charged by your lender to pay for an attorney to represent their interests. Although you are required by your lender to pay these fees, in order for the bank to agree to loan you their money, the bank attorneys do not represent you. Their sole obligation and responsibility is to the bank.

“Closing adjustments” are credits or debits to either party to allocate responsibility for expenses already paid or to be paid. Property taxes are an expense that typically needs to be “adjusted” at closing. For example, if the seller has paid a full year of property taxes but sells the house to the buyer only five months after the taxes were paid, the seller received only five months of benefit from the payment of these taxes and the buyer will be getting the remaining seven months of benefit. Therefore, this payment is “adjusted” at closing by the buyer reimbursing the seller for 7/12ths of the yearly payment, which represents the seven months of taxes that were paid by the seller for the buyer’s benefit.

“Closing costs” are all of the expenses incurred, over and above the purchase price, in connection with closing. The buyer and the seller are each responsible for various closing costs associated with the transfer. Although your attorney will notify you of many of these costs, please be aware that your attorney has no control over a majority of these charges. Most of them are charged by the government, surveyors, abstract companies, real estate agents or, in the case of a buyer, by the buyer’s lender. The responsibility for payment of these charges is established either by law or by your contractual agreements.

You will be notified as far in advance as possible. Unfortunately, due to the fact that many people want or need their transfer to take place as soon as it is ready to close, the advanced notice can be as little as a day or two.

Possibly, but not necessarily. The contract closing date is a target date. As such, the closing does not usually fall precisely on that date. Many things must be prepared and obtained by the seller, the buyer and the lender before a closing can be scheduled. Once all of these closing requirements have been met, a closing can be scheduled. If at all possible, the specific date and time of the closing is scheduled to accommodate the schedules of those who will need to attend. However, various deadlines, difficulties and/or other uncontrollable factors may require the closing to be scheduled at a time that is not completely convenient for everyone.

Typically, when everything is in order, the buyer’s attorney will schedule the closing. Usually, however, the specific closing date and time is dictated, in large part, by the availability of the lender’s attorneys.

Sellers can usually be represented by their attorney at the closing. Buyers must usually appear personally, but should be accompanied by their attorney. On rare occasions, under unusual circumstances, lenders may permit the closing to be attended by the buyer’s agent pursuant to a Power of Attorney. This must be authorized by the lender in advance and may create additional difficulties.

Typically, sellers do not need to attend closing. Sellers often sign the necessary papers before the closing, which are then delivered to the closing by their attorney. Buyers, on the other hand, typically need to attend the closing since the lender requires them to be present to sign all of the mortgage lending documents at that time.

Because you agreed to do so as a condition of borrowing money from the bank. This is one of many services rendered by the bank attorney in connection with your loan. Although the bank attorney does not represent you, this is simply another charge or closing cost, which the bank passes along to you, the customer, in order to loan you the money.

A closing provides a definite time and place for the transfer of the property to occur. In today’s world of advanced technology and communication, a closing is probably not essential in that the necessary information, documentation and funds are capable of being exchanged without the need for a meeting. In certain cases, closings are in fact handled “through the mail”. However, most transfers are completed at a closing simply because the lender requires one. Fortunately, a closing rarely results in unnecessary expense, since the tasks accomplished at closing are necessary to complete the transfer and would have to be accomplished at another time and place if not at the closing.

A “closing” is a meeting to exchange information, documents and funds in order to complete the transfer of real property. In most transfers, (where the buyer needs to borrow money in order to buy the house), two closings actually occur simultaneously. One is a closing or completion of the buyer’s loan. This is a transaction between the buyer and the buyer’s lender, for the purpose of funding the purchase. The loan closing is necessary in order to proceed with the other closing, which is the closing or completion of the transfer of title from the seller to the buyer.

Most banks will agree to extend the commitment beyond the expiration date. However, you may be charged a fee to do so, and you cannot extend the commitment indefinitely. Therefore, it is important to make every effort to be ready to close the purchase before the commitment expires.

Your lender commits to lending you the money you have requested for a limited period of time. The “expiration date” is the date following which the lender will no longer commit to lending you the money. Therefore, it is necessary to close the purchase on or before the expiration date.

It depends on the nature of the information requested. Some of the items will be provided by your attorney. However, some of the information typically required in a mortgage commitment is in the possession of the borrower. You can provide this information directly to the bank. If you are not sure if you are expected to provide certain information or if you have problems obtaining or providing the requested items to your lender, make sure you discuss this with your attorney. Do not assume someone else will take care of it or it may not get done in time!

No, not unless you have any questions or concerns. However, your attorney does need to be advised when you receive and accept your commitment and your attorney does need to receive a copy of your commitment once you have accepted it. Do not rely on your bank to do so. Send your attorney a copy of your commitment letter once you have received and accepted it.

Yes. If it is acceptable to you, you need to sign it and return it to your lender to notify them that you agree to borrow the money under the terms of the loan commitment. However, you should not sign it until all your questions or concerns have been addressed and any necessary changes have been made to the written commitment.

Contact your lender immediately to correct any errors in the commitment and/or to answer any questions you may have.

Yes. You should do so as soon as you receive it to make sure that the terms and conditions recited are consistent with what you had agreed to.

The bank will send it directly to you once you have provided them with all the information requested and they have approved your application.

When a lender approves a borrower for a mortgage, they “commit” to lending a certain amount to the borrower upon certain terms. A “mortgage commitment” is the written statement to the borrower from the bank, committing to lend funds to the borrower and setting forth the terms of the loan.

A “Loan Estimate” is the statement provided by a lender to a borrower which estimates the various costs and expenses the borrower is likely to incur in buying a house. Although this statement can assist a buyer in determining his/her potential costs, it is only an estimate as to many of the costs recited and may not reflect all the costs you may actually incur. Therefore, it should not be relied upon as a complete or accurate statement of your costs. However, the Loan Estimate is a useful tool in determining, with a high degree of accuracy, the fees to be charged to you by your lender.

A “point” is 1% of the mortgage amount. Bank charges are often calculated based on a percentage of the amount being borrowed. For example, a lender may be willing to agree to a lower mortgage interest rate upon the payment of 2 points, or 2% of the amount being borrowed.

No. By entering into a contract containing a mortgage contingency, you are agreeing to use your best efforts to obtain a mortgage commitment. Your refusal to cooperate with your lender, in good faith, would be deemed a breach of your contractual obligations.

You are permitted to order title policy from whatever company you wish. Therefore, if you wish, you can request your lender to order the insurance for you. However, our firm has a relationship with a title insurance agency which enables us to obtain title policies for our clients. Given this relationship, we benefit financially if we purchase the policy for you. However, we feel that obtaining this policy for you affords us a greater degree of control over this process and we also believe it allows us to provide you with the best service available. In that title insurance rates are set by the state, you are charged neither more nor less as a result of allowing us to order the policy for you.

The rates for all title insurance policies issued in New York State are regulated and fixed by the state. Therefore, you will pay the same amount for title insurance, regardless of where you purchase it.

You are permitted to order title insurance from whatever company you wish. However, your attorney generally takes care of ordering both the mortgagee and fee title insurance policies for you. Our firm has a relationship with multiple title insurance agencies which enables us to obtain title policies for our clients. Given these relationships, we benefit financially if we purchase the policy for you. However, we feel that obtaining this policy for you affords us a greater degree of control over this process and we also believe it allows us to provide you with the best service available. In that title insurance rates are set by the state, you are charged neither more nor less as a result of allowing us to order the policy for you.

It is always beneficial for the buyer of a home to purchase a fee policy of title insurance. Although your attorney may be in a position to review and approve the title you are acquiring when you purchase a property, he/she is not in a position to guarantee that problems will never arise with respect to the title to the property you have purchased. This is not a reflection on the ability of your attorney, since there are potential problems that may arise that cannot be determined at the time of your purchase. Therefore, even if your attorney does his/her job perfectly, certain legal situations may arise that could jeopardize your claim to title to your property. A fee policy of title insurance is the best way to guard against any potential financial loss as a result of any such unforeseen situation. Your attorney can advise you of the cost of a fee policy of title insurance and can assist you in obtaining such a policy.

Yes. There is a type of title insurance that protects a buyer’s/owner’s interest in the property. This is called an “owner’s” or “fee” policy. The word “fee” is a legal term referring to the nature of ownership of the property, not to the cost of the policy. A fee policy insures the owner from financial loss if a problem is discovered in the future with respect to the ownership of the property.

There are various types of title insurance. The type of title insurance required by a mortgage lender is called “mortgagee” insurance. This insures your lender from any financial loss if a problem is discovered in the future with respect to your title to the property. Your lender requires you to get this policy to protect their interest in your home as security or collateral for the money they are lending you to buy the home. This insurance does nothing to protect you or your interest in the property.

If you want them to lend you their money—yes! Although you are fully entitled to refuse to provide them with any information, they are equally entitled to refuse to lend you their money as a result.

In most cases, you do. If you have any questions regarding what you are asked to provide, ask your attorney.

By making prepayments, you will finish paying the loan quicker and in this way you will owe less interest over the life of the loan. However, it is important to understand that making prepayments does not reduce your monthly payment throughout the life of the loan, nor does it relieve you of the obligation to make the regular monthly payment as is required by the loan.

A “prepayment” refers to paying all or a portion of the mortgage before it is due or required to be paid. Some lenders do not permit prepayments and some lenders will charge a penalty if prepayments are made.

A “balloon payment” is a mortgage payment that pays off the entire outstanding unpaid balance owed on the mortgage and which is made before the monthly payments would otherwise pay off the mortgage.

Interest is charged on the amount that is borrowed (called “principal”). As payments are made to reduce the principal, the amount of interest owed each month is less, since it is being calculated on a lower amount of principal. However, in order to avoid confusion, the amount of each monthly payment does not change as the amount of interest due decreases. Instead, the monthly payment remains the same and a calculation, called an “amortization”, is made which allocates a smaller portion of each monthly payment toward interest (since the amount of interest due decreases as the principal of the loan decrease) and allocates a larger portion of each monthly payment toward principal. Therefore, at the beginning of the loan, the largest portion of the payment is going toward interest, whereas near the end of the loan, most of the payment represents a reduction in the principal.

“PMI” stands for “Private Mortgage Insurance” and “MI” (previously referred to as “MIP”) stands for “Mortgage Insurance”. PMI is charged by banks and conventional lenders and MI is charged in conjunction with VA and FHA loans. Both PMI and MI are types of insurance, which are required by the lender if the borrower does not provide a substantial amount of cash (typically at least 20%) toward the purchase of the property. In such cases, the property is less likely to provide adequate security for the loan, since it may not sell for enough to pay off the loan and foreclosure expenses if the borrower defaults on the loan. PMI and MI provide insurance to the lender to cover this potential loss. Although the borrower pays the cost of this insurance, it is entirely for the benefit of the lender and not the borrower.

Each of these are specialized types of mortgages offered by various governmental organizations, usually to encourage certain types of prospective buyers by offering mortgages at lower rates to those who qualify. You may wish to ask your real estate agent or mortgage broker if you qualify for any specialized mortgage program.

An “ARM” is an “Adjustable Rate Mortgage”. Unlike a conventional mortgage, where the interest rate is fixed throughout the life of the loan, the interest rate for an ARM will adjust at fixed intervals throughout the life of the loan in proportion to increases or decreases in certain stated economic indicators. The benefit of ARM’s is they are usually at lower initial rates. The risk to the borrower is that rates may increase above what they would have been for a fixed rate mortgage.

A “bridge loan” is a temporary, short term loan that is intended to “bridge” a financial gap during a short period of time that someone needs money temporarily. It is usually required when someone is buying a house but cannot schedule the sale of his/her existing home before his/her purchase. Consequently, the buyer does not yet have the money from his/her sale to put toward the purchase, as was intended. In this case, the buyer obtains a “bridge loan” for this amount, to bridge the gap of time between the purchase and the sale. When the sale occurs, the buyer uses the money received to pay off the bridge loan.

Your mortgage lender will have a procedure for advising them or your intentions in this regard.

You want to lock-in when you feel the interest rates are as low as they are going to go before your lock-in period has expired. There are many publications and financial advisors who will offer opinions in this regard. However, the ability to anticipate changes in interest rates is far from an exact science.

You will be subject to the prevailing rates when you close. However, most lenders allow you to “lock-in” your rate within a certain period of time after your application. If you lock-in your rate, your loan will be at the rate when you locked in and you will not be required to pay a higher rate if the rates go up before you close. Of course you usually won’t benefit from a decrease in rates either.

The amount you borrow depends on the amount you need as well as the value of the property being purchased. Most mortgage lenders will only agree to loan a percentage of the value of the house (known as the “debt-to-equity ratio”). Other types of loans and lenders allow the buyer to borrow the entire purchase price and sometimes even more, to cover closing costs and expenses. Remember that the size of the loan, the length of the loan and the interest rate all go into determining the size of your monthly payment. Also, when determining if you can afford a house, and the mortgage required to buy the house, it is important to realize that the purchase price is just one of the expenses involved. Taxes, insurance, utilities, maintenance costs and other necessary expenses are often overlooked.

A “private mortgage” is a loan to purchase property, which is obtained from a source not typically in the business of lending money. Often this will be a relative or the seller. Unless the private mortgage lender is a relative, a lender who is not in the business of lending money is usually not able to provide the borrower with terms that as are attractive as the traditional lenders. However, if a buyer is unable to qualify for a traditional loan (i.e. bad credit, no credit history, insufficient income, etc.) a private mortgage lender may be willing to take the additional risk in exchange for the higher return on the loan. A seller may be willing to do so in order to sell the house, which might not otherwise be possible if a prospective buyer couldn’t get a mortgage.

A “mortgage broker” is someone who finds a mortgage for you that best suits your needs and requirements. (Not to be confused with a “real estate broker” who sells or finds a suitable home for you). In effect, the mortgage broker “shops” for your mortgage so you don’t have to. Typically, the lender will pay for the services of the broker, as compensation for bringing them the business—you! Be aware, however, that not all brokers work with all lenders. As such, it is important to determine how many lenders your broker works with and the type and diversity of these lenders. Otherwise, you may be limited in your choices. It is something like buying a car from a dealer. Although a Ford dealership will have various different types of vehicles to offer you, they will only offer you a Ford, and you will never know of the many other options that were available to you.

There are many different lenders and many different types of mortgages available. Mortgages vary in the interest rate, the length of the loan, the method of paying for taxes and insurance, the costs associated with borrowing and the rules and requirements of the lender. Each buyer needs to “shop” for the mortgage that best meets his/her needs. In determining where to apply, make sure to consider the fees and closing costs charged by the lender, as these vary greatly. Many of the costs associated with the purchase of a home are “hidden” in the fees charged to you by the bank and it is important that you are aware of these fees up front.

If there is no application fee or other cost associated with making the application, you may wish to do so once the seller has accepted the purchase offer. Certain lenders permit prospective buyers to apply before they even make a purchase offer. The bank then will “pre-approve” the buyer for a certain loan amount, subject to the buyer finding an acceptable house. If the lender will be charging an application fee or other non-refundable fee, you should delay making your mortgage application until both attorneys have approved the contract and certain “preliminary” contingencies (if any) have been satisfied.

The word “mortgage” is typically used to refer to a loan to buy real property. Technically, however, the document that evidences the borrowing of money is called a “Note” or a “Promissory Note”. The note outlines the terms and conditions of the loan. A “Mortgage”, on the other hand, is the document that ties the real property to the loan as collateral or security for the repayment of the loan. If the Note is not paid in accordance with the agreed upon terms, the Mortgage allows the lender to sell the real property in order to pay off the loan. Contrary to popular belief, the fact that the bank holds your mortgage does not mean that the bank “owns” your house. You own your house. The bank simply has the right to use the value in your house to pay off your obligation to them, if you fail to do so.

A “bill of sale” is the formal document that transfers ownership of personal property from the buyer to the seller and shows transfer of this ownership. That is, a deed transfers real property (i.e. land and the permanent buildings on the land) and a bill of sale transfers personal property that may be transferred with the land (i.e. refrigerator, washer, dryer, window treatments, etc.). Although a bill of sale may be recorded in the County Clerk’s Office, this is not usually done. Therefore, it is a good idea for a buyer to retain a bill of sale in a safe place in the event title to the personal property should ever be an issue.

Once the deed is recorded in the County Clerk’s Office, the transfer is considered to be “of record” or official. Thereafter, the original deed is no longer required as proof of the transfer of ownership since copies of the County Clerk’s records are sufficient. Nevertheless, your deed may be useful to you in the future and it is helpful, although not necessary, to save it for future reference.

A “deed” is the formal document that transfers ownership of real property from the buyer to the seller and shows evidence of this transfer. This gets recorded in the County Clerk’s Office of the county where the property is located.

Probably. If you required insurance, it means the problems were not resolved but were insured. Although the insurance policy provided to you by the seller is good for as long as you own the property, it is personal to you only and is not transferable to any subsequent owner. Assuming the title problems have not been cured during your ownership, it is likely that any buyer will similarly require you to provide title insurance for them. Interestingly, however, certain problems can “disappear” simply by the passage of time. After some problems become a certain age, they are no longer considered significant and would not be considered to be valid title objections. If this were the case, it is possible that you would not be required to provide title insurance, even though you had required it when you purchased. However, this is unusual.

The type of title insurance required by your lender is different from the type of insurance you would obtain for yourself. The insurance required by your lender (called a “Mortgagee Policy”) protects only the lender and provides no protection to the buyer (even though the buyer pays for the policy). The policy obtained by a buyer (called an “Owner’s Policy” or “Fee Policy”, referring not to the cost for the policy but the nature of the ownership of the land) protects the buyer. Fortunately, if you need to provide your lender with a Mortgagee Policy, you do not need to buy an entirely separate Owner’s Policy. Instead, for an increase in the premium (but far less than the cost of two separate policies), the title insurance company will provide a policy that will protect both the lender and the buyer.

Certain defects can remain hidden, despite the most thorough title investigation Various irregularities may occur in recorded documents or in the circumstances surrounding these documents (i.e. invalid documents, forged documents, typographical errors, lack of authority by those signing the documents, documents signed by incompetents or minors, documents affected by undisclosed marital status, documents affected by death, documents executed under fraud or duress, etc.). In addition, various irregularities are not disclosed by documentation (i.e. county clerk error, misapplied payments, missing information, etc.). This can result in problems that cannot be uncovered by your attorney. Many such problems may not be discovered for years.

Marketable title is title that is free from observable title objections. Insurable title is title that, while it may not be free of title objections, an insurance company has considered the title risks to be so remote or small as to be willing to assume certain financial obligations which would arise if the title issues became a problem. Title insurance is necessary in order to transfer property where all title problems cannot be resolved and marketable title cannot be provided. Title insurance is advisable in all cases, as it provides additional financial protection to a buyer, even with respect to marketable title (as is further illustrated by the answer to the next question).

Just like health problems are insurable or accidents are insurable, title problems are also insurable. For the payment of a one-time premium, an insurance company will “insure” against financial loss which may result from a title problem in the future. This doesn’t keep a problem from occurring (any more than health insurance prevents an illness or liability insurance prevents an accident) but it provides monetary reimbursement should it occur. This monetary reimbursement, however, does not extend beyond the buyer’s purchase price for the property. For example, let’s assume a buyer purchases vacant land for $1,000 and obtains title insurance with respect to various title issues. The buyer then builds a house on the land so it is now worth $100,000. To the buyer’s dismay, someone raises an issue to his/her title to the property so he/she makes a claim against the title insurance policy. At most, the insurance company is obligated to the buyer for $1,000—the original cost to the buyer to purchase the property. For an additional cost, a “Market Value Rider” can be purchased which will increase the payment on a claim to account for appreciation in the value of the property. This does not, however, apply to any increase in the value as a result of improvements made to the property.

By signing a contract for the sale of property, a seller agrees to provide the buyer with good title. This means it is the seller’s obligation to take whatever steps are reasonably necessary and appropriate to resolve any legitimate title problems. The refusal to do so could result in a lawsuit by the buyer against the seller for breach of contract. However, certain problems simply cannot be resolved. In this case, the buyer can either agree to accept the property with the title defect, can agree to accept “title insurance” with respect to the problem or can elect to cancel the contract.

Fences are a historical way of marking boundaries to land. However, whether by accident or design, most fences are not installed on actual boundary lines. This can create a problem of determining ownership. There is a law in New York, as in most states, that the exercise of control over land, under certain conditions and over an extended period of time, can actually cause ownership of land to be transferred from the true owner to the person who controlled it. This is similar to the concept of “squatter’s rights”. Since fences may be one indication of control over land, the inaccurate placement of a fence may be an assertion of “squatter’s rights” over that land. To eliminate this potential problem, various documents may be required to acknowledge the inaccurate placement of a fence and to confirm that there is no claim of “adverse possession”.

Any title issues that were observable and relevant at the time you bought your house should have been addressed and resolved at that time. However, various title issues may have arisen or become relevant or significant after you closed on your house. Many of these issues can arise without you ever knowing that they are occurring. Since these are new issues, they could not have been resolved when you bought the house and must be addressed when you are selling.

In the Purchase and Sale Contract, the seller agrees to provide the buyer with good title to the property. As such, if the title exam discloses problems in the title, it is the seller’s obligation to try to correct them.

A “title exam” is the review or examination of the abstract to determine the sufficiency and status of the ownership or title to real property. The buyer’s attorney or a title examiner engaged by the buyer’s attorney will undertake or obtain a title exam of the property prior to closing to make certain that the buyer will be obtaining good title to the property being purchased.

In most cases, the buyer and the buyer’s lender require a new or current survey which is guaranteed or certified to them to be accurate. As such, the contract usually requires the seller to provide a new map. However, surveyors will often charge less to revise an existing survey than to prepare an entirely new map. Therefore, an existing survey is often useful. Under certain circumstances (usually when no lender is involved), the parties may be able to agree to use an existing map (or no map at all) in order to save time or decrease cost. This would need to be recited in the contract and you should consult with your attorney before he or she approves the contract on your behalf, to determine if this might be an appropriate option.

An “instrument survey map” is a map of real property, prepared by a licensed land surveyor in accordance with accepted standards and using very precise measuring equipment. The accuracy of an instrument survey is certified or guaranteed to certain specified individuals or entities by the surveyor.

When a buyer purchases a parcel of real property, the abstract contains all the information in the County Clerk’s Office as of the date of the purchase. When the buyer later goes to sell the parcel, time has passed and additional documents may have been recorded in the County Clerk’s Office which affect the property. Rather than start over, the existing abstract is simply brought up to date. The process of adding this additional information to an existing original abstract is called a “redate”.

An abstract is prepared by a professional who is trained to search the county records. (This is why an abstract is sometimes referred to as a “Title Search”). The original abstract is guaranteed or “certified” to be accurate and therefore can be relied upon by a buyer. A copy is not certified and, therefore, does not carry the necessary guarantee as would the original, certified abstract.

It is usually a thick document on legal sized paper (8 ½” x 14”), bound at the top, usually has a colored back cover, will have various numbered entries listed throughout and the first page is usually a cover page with the name of the company that last worked on preparing the abstract. These companies usually have the words “Title Company” or “Abstract Company” in their name.

The original abstract is usually sent to the buyer after the closing, retained by the buyer’s lender, or held by the abstract company that worked on it last. Your attorney can assist you in locating your abstract if you are unable to find it.

A document is recorded in the County Clerk’s Office whenever property in that county is sold or mortgaged or whenever some legal action occurs which affects title to property located anywhere in that county. These documents are recorded by category and in chronological order for all properties in the county. An “abstract” or “abstract of title” gathers, into a single and chronological listing, relevant information regarding whichever of these various documents apply to a single parcel of property. In effect, it is a history of the chain of title to that property.

Depending on the nature of the problem discovered, you may have the right to pursue reimbursement from the inspector for the oversight. However, not all problems or defects are within the scope of an inspection, and it may not have been the inspector’s fault for failing to discover the problem. If the problem was intentionally hidden from you or misrepresented to you by the seller, you might have the right to sue the seller. Therefore, it is important that you inspect and investigate the condition of the property to your full satisfaction before you buy. Remember: “Buyer Beware!”

If the problems affect your willingness to purchase the property under the terms of the contract, you should advise your real estate agent or attorney immediately. You will need to discuss how you wish to address your concerns. In the most severe cases, you may wish to cancel the contract and walk away from the deal. However, if the problems are less severe, you may wish to require various repairs to be made by the seller prior to closing or you may wish to negotiate a reduction in the purchase price, in exchange for which you would assume responsibility for any necessary repairs. In any event, these issues should be addressed promptly. If the problems are minimal and/or were anticipated when you made the offer, you may wish to simply accept the condition of the property without regard to the inspection results.

It is always helpful to have another person to hear what the inspector says and to ask questions. However, the seller should not be present at the time of the inspection since the inspector may not feel as free to talk to you in the presence of the homeowner, especially regarding observations of improper maintenance or repairs. If you are buying the house with another person and you can’t both be present at the inspection, you may wish to carry a portable tape recorder with you and record the comments of the inspector during the inspection, for later review and discussion.

Although you are not required to be at the inspection, it is highly recommended. While the report will disclose the inspector’s conclusions, much valuable information and understanding can be obtained by accompanying the inspector, asking questions and listening to his/her comments and suggestions, which may not necessarily be reflected in the final report.

Yes. Typically the inspector will provide you with a written report, outlining exactly what was inspected, what was observed and often any suggestion or recommendations for repairs or further inspections.

Absolutely. This may well provide the inspector with valuable information to assist in the inspection.

In the case of a general home inspection, this is typically scheduled by the buyer, often with the assistance of the real estate agent. In the case of the more specific types of inspections, such as well, septic or environmental inspections, the ordering of the inspection is usually coordinated between the buyer, the seller, their attorneys and their real estate agents.

The best way to locate a qualified inspector is to obtain a referral and recommendation from someone you trust. Ask your friends and relatives who may have had the need for an inspector in the past. Your attorney and/or real estate agent may be able to assist you in this regard. Once you have obtained the name of a potential inspector, you may wish to check out his/her reputation through the Better Business Bureau and/or the Better Contractors Bureau. You may also wish to obtain references from the inspector and contact people who have used his/her services in the past.

Again, this is a determination that must be made by each individual buyer. If a buyer has a specific issue or concern, the inspection may be limited to that concern. Typical examples of these are a well inspection, septic inspection, radon testing, furnace inspection, roof inspection, chimney/fireplace inspection, termite/pest inspection or environmental inspection. If the buyer is concerned about the general condition of the property or is interested in a professional evaluation of the entire property, a more general property inspection is required (which may or may not include some of the specific types of inspections referred to above). The cost of inspections vary widely and will depend both on the extent of the inspection and the experience and qualifications of the inspector. New York State has licensing requirements for home inspections. It is extremely important to determine an inspector’s credentials and the intended extent of the inspection before you hire him/her. Your attorney and/or real estate agent may have had experience in working with various inspectors and may be able to assist you in this regard.

A professional inspection of a home is not required. Every buyer must determine whether such an inspection is advisable under the specific circumstances. Issues such as the age of the home, the apparent condition of the home and the knowledge and experience of the buyer should all be taken into consideration. In addition, the Property Condition Disclosure Statement provided by the seller may disclose certain conditions that warrant an inspection. In making this decision, keep in mind that the purchase of a home is one of the largest purchases a person makes in a lifetime, in addition to which, a house is a large and complex structure. It is often well worth the additional expense of an inspection for the information and peace of mind it can provide.

Product liability cases may involve dangerous and defective drugs, medications, and other medical or pharmaceutical devices. Pharmaceutical companies and drug manufacturers are required to adhere to industry standards and FDA regulations to ensure that their drugs are safe. They have an obligation to warn consumers of any potential adverse effects which could result from consuming the drug or medicine or using the device. Disclosure of initial negative effects is required so that a consumer can make an educated decision, weighing all of the pros and cons, before utilizing the product. Unfortunately, manufacturers sometimes fail to disclose all of the known dangerous side effects, or they fail to perform adequate testing before widespread use or distribution. Sadly, some companies have been known to put profits over people by failing to disclose known dangers. These companies should be held responsible for enjoying lucrative profits while putting the health and welfare of consumers at risk.

If you have been harmed or injured as a result of a defective drug or medical device, the attorneys at Lacy Katzen LLP may be able to help.

A manufacturer, wholesaler, distributor, retailer, processor of materials, or maker of a component part that sells a product in a defective condition may be liable for injury that results from use of the product when the product is used for its intended or reasonably foreseeable purpose. A product may be defective as a result of a manufacturing flaw, a defective design or inadequate warnings or instructions. Lacy Katzen LLP’s personal injury attorneys can help you determine if you have a claim.

Under New York law, a dog owner will be held responsible for your damages if he or she was aware of the dog’s propensity for the bad behavior that caused your injury. In the case of a bite, we must demonstrate that the owner knew or should have known of the dog’s tendencies towards this behavior. It used to be said that a dog got “one free bite” before its owner is on notice of a problem. This is not quite true. Other behavior can demonstrate vicious propensities under the law such as growling, baring of teeth, lunging and even a “Beware of Dog” sign. A dog owner can also be held responsible for injuries caused by other behaviors of which he was aware such as chasing and jumping.

Report the incident to your local dog warden or police right away. They can help you gather information about the dog and determine if it has been vaccinated. Call an attorney as soon as possible. Dog bites need to be investigated quickly. There may be a vicious dog hearing if the owner was issued a ticket. The animal may be relocated or even euthanized, making it difficult to investigate its behavior.

Yes, if possible. There are time limitations that apply to bringing a claim, some as short as 90 days. There are also time limits to claims for insurance benefits, some as short as 30 days. Some reports may need to be filed in as little as 10 days. There may be information or evidence that needs to be preserved. We may want to photograph the scene of your injury before it changes. You may need to file a claim for insurance benefits.

Special time limits apply to claims brought on behalf of children, including those injured at birth. Because these time limits may not be as long as one might expect, it is important to act quickly. Lacy Katzen LLP’s personal injury attorneys can help you determine if you have time to file a personal injury claim.

The general rule in New York is that workers injured at work are limited to compensation from their employer’s Workers’ Compensation insurance carrier even when an employee or co-worker is negligent. However, an injured worker can file a personal injury claim when the injury was caused by the negligence of a third party (someone other than the employer or co-worker). For example, an injury might be caused by the negligent design of a piece of equipment or machinery, or the negligence of someone employed by another company. It is important to determine if the person who caused your injury is really a “co-worker” as defined by law. The person may be an independent contractor or employed by someone else. Lacy Katzen LLP’s personal injury attorneys can help determine if you have a personal injury claim arising from a workplace injury.

Property owners have an obligation to keep property reasonably safe and free from dangerous conditions. Dangerous conditions on property may result from the failure to comply with municipal building or fire codes, to provide adequate lighting, to provide safe railings, to clear ice and snow in a timely manner, to eliminate tripping hazards, to fill potholes, and to level uneven surfaces. If you fell due to the negligence of another, you may have a claim. Lacy Katzen LLP’s personal injury attorneys can help you determine whether you have a claim by considering where you fell, when you fell, what caused your fall, and your injuries.You should contact an attorney promptly so that the condition of the scene can be properly documented.

Unfortunately, the law in New York does not permit recovery for emotional injury except in special circumstances where an immediate family member witnesses a serious injury or death. There can be recovery for pain and suffering your loved one endured before death, as well as damages for economic loss to his or her family or dependents. Economic losses include lost earnings and other services provided by your loved one that have an “economic value” such as yardwork, household chores and even parental guidance.

Yes. In fact, there are several different time limits that apply in any death claim. The rules in applying these time limits can be tricky and shorter than the time limits for other types of claims. It is important to contact an experienced personal injury attorney who knows how to apply these time limits as soon as possible. Lacy Katzen LLP’s personal injury attorneys can help you determine if you should pursue a claim.

A person must be appointed by the court to pursue a wrongful death claim. Parents, spouses, children, other family members or legal dependents may be eligible to file a claim. Minors will need an adult guardian to bring a claim on their behalf. Often, more than one person is eligible to bring the claim. If family members disagree about who should pursue the claim, proceeding promptly may become important.

If your loved one has died as a result of someone’s negligence, there are two types of claims. A wrongful death claim is brought by the survivors of the deceased person to recover their economic losses. A survival claim is brought on behalf of the deceased person to recover any pain and suffering that occurred prior to death. These claims can arise from many situations such as car, truck and motorcycle accidents, medical negligence, nursing home negligence, work site injuries and defective products cases.

The vast majority of personal injury cases settle without ever going to trial. Our careful selection of claims and our meticulous case preparation makes it more likely that your case will not go to trial. However, we are willing to try your case if necessary to obtain a fair result. Our willingness to try your case makes it more likely that you will receive a fair settlement offer.

You should hire a personal injury attorney so as to best protect your rights and to put yourself in the best possible position to receive compensation for your claim. Perhaps you think that you should negotiate directly with the insurance company. The insurance adjuster for the person who caused your injury may try to convince you that you should not hire an attorney. But should you really take advice from the insurance company that represents the other side?

Before you even consider attempting to handle your own claim, there are some things you should know. First, an experienced personal injury lawyer knows when to resolve your claim. If you settle your claim too early, you may be barred from receiving compensation for new injuries that arise after the case is settled.

Second, an experienced personal injury lawyer can help you evaluate any offer that you might receive so that you know whether you are getting fair compensation for your injuries. The insurance company is a business. It maximizes its profits by paying as little as possible on every claim.

Third, anything you say can be used against you should your case proceed to trial. Insurance adjusters or private investigators may be sent to take a written or recorded statement. You will be asked to provide authorizations so that the insurance company can obtain information about you. It may ask for information to which it is not entitled. The insurance company might lead you to believe that it will settle your claim if you provide all of this information. After you have provided the information, the insurance company may tell you that it does not wish to make you an offer of settlement or may make an unreasonably low offer. An experienced lawyer can guide you through the process and ensure your claim is resolved fairly.

Fourth, preparation often needs to be done to put your case in a position to receive a reasonable settlement offer. The attorney may need to gather physical evidence, witness statements and even expert reports to put your case in the best position to settle. When you are not represented by an attorney, you do not have the leverage that a lawsuit will be the response to an unreasonable settlement offer. Insurance companies keep records about attorneys. They know which attorneys are serious about pursuing their claims and which attorneys settle almost all their claims. Any settlement offer that you receive may very well reflect your lawyer’s experience and reputation. You have no experience or reputation with the insurance company.

Finally, if you represent yourself, you may make a mistake. You may settle your claim too early, only to find out that you have additional injuries and may have significant additional medical costs which were not considered when you accepted your settlement. You may miss a filing deadline and be barred from bringing a claim at all. You may fail to identify all available insurance coverage. You may not realize that there are liens against your settlement. If you settle your claim without addressing these claims against your settlement, you may be liable for reimbursement, fines and penalties. Just as an experienced accountant may pay for himself by getting you a bigger refund on your tax return, an experienced personal injury lawyer is a valuable resource that is essential to the proper handling of your claim. At Lacy Katzen LLP, our personal injury lawyers have been helping injured people and their families for 70 years.

Personal injury cases are handled on a contingency basis. This means that the attorney receiving a fee is “contingent” upon you getting a recovery in the case. In other words, the attorney only gets paid if you win or settle your case. If you are successful in your claim, the attorney will be paid a percentage of what you recover. This type of fee arrangement eliminates the risk to the client that they will have a large legal bill to pay if they do not recover on the case. Clients who have sustained an injury have already suffered a loss. They may have unpaid medical bills or be out of work due to their injuries. Most would not be able to bring a claim if they had to pay an attorney by the hour. This type of fee arrangement enables all injured people, regardless of their financial means, to be represented by highly skilled attorneys.

No. Lacy Katzen LLP’s litigation attorneys offer free consultations.

A personal injury claim seeks compensation for injuries caused by another’s negligence. These injuries can arise out of just about any kind of situation that causes an injury. An injury might be the result of a car accident, truck accident, motorcycle accident, work or construction site accident, defective or dangerous products, dangerous property conditions or dog bite. Perhaps you or a loved one has been injured due to a defective drug, medical device or because of negligent care and treatment by a doctor, physician’s assistant, nurse practitioner or hospital. A claim could arise out of negligent care at a nursing home that results in injury, suffering or even death.

A prenuptial agreement is basically a Separation Agreement (see above) that parties negotiate and sign before they are married (and before they have marital difficulties) which outlines how the parties will address and resolve any marital issues in the event they later separate or divorce. Doing a prenuptial agreement (at a time when both parties are “agreeable”) while not “necessary” can help to avoid difficulties and disagreements that often accompany the ending of a marriage.

Yes, the law entitles you to return to any maiden name or prior surname upon the granting of a divorce. This is specifically recited in the Judgment of Divorce.

Yes, since a QDRO can only be done following a divorce, it is not part of the divorce process. Obtaining a QDRO can be an extensive, involved and complicated process which involves your spouse, your spouse’s attorney, the court and the plan administrator. If you are entitled to share in multiple retirement accounts or benefits, a separate QDRO is usually required for each account. As a result, the additional cost of obtaining a QDRO can be substantial. However, it is a necessary expense to secure your interest in these retirement benefits.

No.

No, but it is advisable to do so. Since a QDRO secures your interest in your spouse’s retirement benefits, the longer you wait, the longer you have not secured your interest and the greater the likelihood that something could impact your interest. In addition, if you wait a substantial period of time, relevant data and information may no longer be available which can make the preparation of a QDRO substantially more difficult and potentially impossible.

If you are entitled to a share of your spouse’s retirement, the Judgment or Decree of Divorce will establish your rights in this regard. However, the Judgment does not transfer this interest to you, but merely identifies your rights. You need a QDRO to direct the plan administrator to transfer the funds into your own account and/or send you a check for your share of any monthly pension payments. Otherwise, your interest will remain in your spouse’s account and/or your share of the monthly payments will be sent to your spouse, and you will need to rely on your spouse to provide you with your interest. This tends to be a highly unreliable method of receiving your interest and is difficult to enforce if it isn’t done.

Actually, it’s “QDRO”, which stands for Qualified Domestic Relations Order. A QDRO is a special court order which directs the plan administrator of a qualified pension or retirement plan to distribute retirement benefits to the spouse of a participant. In the absence of this order, the plan administrator is not permitted to distribute the funds to anyone other than the participant. (See the “Qualified Domestic Relations Orders” page under the Family Law practice area).

A Judgment of Divorce is a court order. The failure to meet the obligations under a Judgment of Divorce is a violation of that court order and, consequently, an application can be made to the court, seeking further judicial assistance in enforcing the terms of the order. (See the “Post Divorce Enforcement and Modifications” page under the Family Law practice area).

Your divorce documents are all filed in the Office of the County Clerk of the county where your divorce was granted. You, your former spouse or your attorneys can obtain copies of any documents on file, but they are otherwise private. The Clerk can also provide you with “Certified” copies of your documents, which is often a requirement if you are using the copies for formal purposes. The Clerk will charge a nominal fee to provide you with copies.

No, in fact once you are divorced, you are not permitted to file jointly since you are no longer married. Prior to a divorce, however, it may be in the best interests of both of you to consider filing a joint return since you both might save money by doing so. You should consult an accountant to make this evaluation. Of course, filing a joint tax return with an estranged spouse can be difficult and requires a good degree of cooperation. It also requires an agreement as to how the refund (or obligation) will be shared between the two of you.

Not necessarily. Courts will often require coverage to continue until the divorce is complete. However, following a divorce, you are no longer related to your spouse and your spouse cannot continue to cover you under as a family member. However, you may be entitled to continued coverage under the COBRA provisions but who will pay the cost of this coverage would need to be determined and this coverage is not indefinite.

Not necessarily. The answer to this question requires the consideration and analysis of multiple factors before a decision can be reached.

For people who have signed a Separation Agreement or who are granted a Judgment of Divorce on or before December 31, 2018, alimony payments (referred to in New York as spousal maintenance payments) that are made pursuant to those Agreements or Judgments (or subsequent modifications to those Agreements or Judgments) will still be tax deductible to the party paying the maintenance and includible as taxable income to the party receiving the maintenance. However, for Agreements signed or Judgments granted after December 31, 2018, maintenance payments will no longer be deductible to the party paying the maintenance and will no longer be considered as taxable income for the receiver party receiving the maintenance.

Spousal maintenance (often referred to as “alimony”) is the payment from one spouse to another, upon a separation or divorce, as a contribution toward his or her support. The law provides for a calculation, based on each spouse’s income, that establishes a presumptive amount of maintenance (if any) to be paid, both while a divorce is pending and following a divorce. These amounts are not necessarily the same. The law also provides for a presumptive duration of post-divorce maintenance payments, based on the length of the marriage. However, the law further provides for a deviation from these presumptions, upon appropriate circumstances, based on multiple factors that are to be taken into consideration in determining the appropriate amount of maintenance while a divorce is pending and the amount and/or duration of post-divorce maintenance.

You are not obligated to the creditor for your spouse’s debts. However, debts that were incurred by either party during the course of the marriage are presumed to be “marital” and responsibilities for marital debt will be allocated equitably between the parties. There are, however, various reasons that the presumption will be rebutted, including when one party receives the benefit derived from the obligation and equity demands that the party receiving the benefit be responsible for the obligation.

An interest in a professional practice or a business, to the extent it was obtained during the marriage, is considered a marital asset that is subject to equitable distribution between the spouses..

An advanced degree or professional license is not considered to be a marital asset to be valued and divided between the parties. However, in determining equitable distribution of other marital assets, the court is required to consider a spouse’s direct or indirect contribution, during the marriage, to the other spouse’s development of an enhanced earning capacity. Therefore, while enhanced earning capacity is not considered to be a marital asset to be divided, it can be a factor in determining the division of other marital assets.

Yes, if you were married more than 10 years. This is governed by the Social Security regulations and is not and cannot be changed by a divorce.

Yes, if it was accumulated during the marriage. Amounts accumulated in retirement accounts during the marriage (plus gains or minus losses) are subject to division. A calculation is applied to pension benefits to determine the spouse’s interest in monthly retirement payments.

New York is an “Equitable Distribution” state, meaning that all marital assets (and debts) are divided equitably or fairly between the parties. Although equal is often fair, it is not always the case.

No. The only assets that are subject to division in a divorce are “marital assets”. Generally, anything that was accumulated by either party during the marriage is considered to be marital property. However, anything accumulated by either party prior to the marriage, anything inherited by either party (even if during the marriage) and anything received as a gift by either party from someone other than their spouse (even if during the marriage) is not considered marital property and is not subject to division.

The IRS establishes rules for claiming head of household filing status. The right to claim head of household cannot be agreed upon or determined by the parents and, instead, the IRS rules will govern.

Through 2017, the IRS allowed separated or divorced parents to determine which of them would claim their minor children as a tax deduction. However, income tax deductions for minor children have been eliminated as of 2018. Consequently, for tax years 2018 and beyond, minor children can no longer be claimed as a tax deduction by either parent.

Possibly but not necessarily. This depends on the specific circumstances.

When the child reaches 21 years of age, or earlier if the child is self-supporting. It is possible to agree upon certain other events that would terminate the obligation for child support before age 21 or extend it beyond age 21.

Childcare required to permit both parents to remain gainfully employed or to pursue education are also allocated on a “pro-rata” basis, in accordance with the respective incomes of the parents. (See the “Child Support Issues” page under the Family Law practice area).

Both parents are required to contribute to the cost of health insurance and health care for the children. These expenses are generally allocated on a “pro-rata” basis, in accordance with the respective incomes of the parents. (See the “Child Support Issues” page under the Family Law practice area).

You can’t. There is no obligation to account for the use of child support and, in fact, there is no obligation to use child support for the children. However, once support is paid, the custodial parent is responsible for the expenses of the children and if these expenses are not being met, an application can be made to court for the failure of the custodial parent to properly support the children.

All expenses of the children are covered by child support payments, with the exception of health insurance, health care, child care and college expenses, which are independent of child support payments.

Child support can be modified upon a showing of a substantial change of circumstances. It is also reviewable every three years and upon a 15% or greater change in gross income, but may be reviewed more or less often upon mutual agreement. (See the “Post Divorce Enforcement and Modifications” page under the Family Law practice area).

No.

Yes, but only under limited and compelling circumstances and only upon approval of the court.

Child support payments are determined by law (referred to as the “Child Support Standards Act”.) The amount is calculated based on income and the number of children being supported and, therefore, is different for each individual. (See the “Child Support Issues” page under the Family Law practice area).

Under most circumstances, if a child is not yours, you would not be responsible for the support of the child. However, there are certain exceptions and presumptions that may modify this general rule. If you are not sure a child is yours, it is usually wise to confirm paternity. (See the “Paternity Issues” page under the Family Law practice area).

Parents are generally charged with the support of their minor children. Consequently, except under unusual circumstances, most parents are required to provide for the support of their minor children.

At age 18. However, courts will consider the wishes and preferences of children at a younger age. The weight given to the wishes of a child will depend on a number of different factors and not exclusively on age.

Yes, but it would typically be necessary to show some degree of a change of circumstances from when the custodial arrangement was previously established.

Yes. However, they are less than those of parents, depend on the specific circumstances and, again, are based on the best interests of the children.

You can get as much (or as little) time with your children as you and your spouse can agree upon. If you are unable to agree, the court will make this determination, based on the best interests of the children after considering the specific and unique circumstances.

The determination of custody of minor children is based solely on “the best interests of the children”. If you and your spouse are unable to agree upon (or reach a compromise) in this regard, the court will make a determination (after a hearing or trial) as to what is in your children’s best interests and will establish custody accordingly. (For a further discussion, see the “Custody Issues and Disputes” page under the Family Law practice area).

A Separation Agreement is a written document, signed by both spouses, which establishes all of your marital rights and responsibilities as if you were divorced. The terms of this Agreement are negotiated and established by the spouses (usually with the assistance of their attorneys) and therefore judicial intervention is not required. The Agreement provides that, should the parties seek to be divorced at any time in the future, the terms of the Agreement will be the terms of the divorce. Consequently, once the parties have entered into a Separation Agreement, since all of the marital issues have been resolved, the divorce is substantially uncontested.

Not necessarily. If you and your spouse (with the assistance of your attorneys if necessary) can resolve your marital issues without involving the courts, the terms of your resolution can be recited in a document (commonly referred to as a “Separation Agreement”, a “Property Settlement Agreement” or an “Opting-Out Agreement”) which can then be presented to the court for review and approval, all without you needing to go to court. However, if you cannot resolve your differences, going to court to seek a judicial determination of your issues would be necessary.

If your spouse asserts fault-based grounds for a divorce, you can oppose the divorce by requiring your spouse to prove the grounds asserted. No such proof is required for a “no-fault” divorce. However, a “no-fault” divorce cannot be granted until all other issues are resolved.

No, there is no “waiting period” for a “no-fault” divorce. (However, some of the other grounds for divorce have time-based requirements that may apply.)

New York no longer requires “grounds” to be proven to become divorced. Either spouse may simply assert that the marriage has been “irretrievably broken” for six months or greater in order to be entitled to a divorce. (However, before a “no-fault” divorce will be granted, all financial and child-related issues must be resolved or otherwise determined by the court.)

In order to commence a divorce action, New York law requires that the initial documents be personally delivered to your spouse (by an adult other than you). Consequently, it is necessary to locate your spouse in order for this to be done. Under certain very limited circumstances, the Court may consider granting permission to serve your spouse in a different fashion, but this is extremely unusual.

No. There are various requirements involving New York residency and other contacts to New York which must be satisfied before New York will consider a divorce matter.

One attorney cannot represent two parties who have potentially different legal interests. However, there are various Dispute Resolution Alternatives that may reduce or avoid the necessity of each party retaining an attorney or may limit the level of services required from an attorney. (For a further discussion, see the “Dispute Resolution Alternatives” page under the Family Law practice area).

Yes.

Yes.

Typically, each spouse pays for his/her own attorney’s fees. However, under certain circumstances, your spouse may be required to pay for or contribute to your attorney’s fees, particularly if your spouse earns substantially more than you or if you have insufficient funds to retain an attorney to pursue or defend a divorce.

Since everyone’s situation is different, the amount of time it takes to resolve any outstanding marital issues and to provide the Court with the necessary information and documentation required to complete a divorce is also different. Further, if you and your spouse are unable to reach an agreement on any issues, the Court will need to make a determination after an evidentiary trial, which takes additional time. Given the steps that need to be taken, it is likely that any divorce will take several months to complete, but disputed divorce matters can take much longer.

Attorney’s fees in divorce matters are based on the amount of time expended by your attorney on your behalf. Since everyone’s situation is different, and certain matters are more complex than others, there is no fixed or standard cost for a divorce. (For a further discussion, see the “Attorney’s Fees” page under the Family Law practice area).

Technically no. You are always entitled to represent yourself. However, if you need assistance, only a licensed attorney can represent you. There are many issues and potential pitfalls involved in divorce matters and it is usually a good idea to seek legal counsel.

No. A revocable trust does not protect assets from long-term care costs; you will still require asset protection planning.

Non Lawyers are working for the nursing home, and they typically want you to spend down your assets privately paying the nursing home. They cannot provide legal advice to you and as a result will not provide what lawful asset-protection strategies are available to protect your assets. Further, without legal planning, if there is a Medicaid penalty period assessed and/or an unpaid nursing home bill not covered by Medicaid benefits even after the non-lawyers obtain Medicaid benefits for you, you are on your own and, in many cases, a lawsuit will be commenced by the nursing home for the unpaid bill.

Typically, the spouse living in the community is allowed to keep between $74,820 and $137,400 in total assets, subject to Medicaid gifting rules.

However, if we undertake asset protection planning, we can often avoid the need to spend down assets and protect substantially all assets for the spouse, again subject to Medicaid gifting rules.

Transferring the house is a planning option based on each individual’s circumstances. For the vast majority of cases, the house or one half of its equity can be protected after a client enters a skilled nursing facility depending on each circumstance.

With proper planning your house may be protected. Planning is still available after a client enters a nursing home, in many cases.

Not necessarily, we can typically undertake lawful asset protection planning to save approximately one half to potentially all assets for a single person depending on whether or not there were sizable gifts made during the past 5 years or other exemptions that may be available. Even if gifts were made during the five-year period, there may still be planning available to protect those gifts and in many cases, protect additional gifts. We may be able to save substantially everything if the nursing home bound individual has a spouse living in the community.

Medicare Part A can cover, in full, the first 20 days of a rehabilitative nursing home stay only after a qualifying 3-day hospital stay and can cover a portion of the nursing home stay for up to 100 days.

This means that the property will be transferred to the buyer in the same condition as when he/she inspected it prior to submitting the purchase offer, subject to normal wear and deterioration. The seller is not making any specific representations as to the condition of any property transferred “as is”. In other words, “what you see is what you get” and “buyer beware”. This does not permit a seller, however, to make false statements or misrepresentations about the condition of the property or to hide or conceal the condition of the property.

This is a form the seller is required to complete and provide to a prospective buyer before the buyer makes a purchase offer. It is intended to communicate certain information to a prospective buyer regarding the seller’s knowledge of the condition of the property. The seller is not expected to investigate or research any of the questions raised in this form. However, the seller is obligated to fully and completely disclose any requested information to the best of his/her knowledge. As such, it is important for the seller to be truthful and as accurate as possible. Nevertheless, while this statement can give a buyer a better understanding of the property, it should not be relied upon as a complete, accurate or definitive statement. In the event the seller fails to provide a completed Property Condition Disclosure Statement, the buyer may be entitled to receive a $500.00 credit at closing from the seller.

There is no interest accrued on the deposit. By law, the real estate agent or attorney must hold the deposit in an escrow account for the benefit of the parties and such escrow accounts do not generate interest to either the real estate agent, the attorney or the parties.

Typically, the deposit is held in escrow by one of the real estate agents or, in the absence of real estate agents, by the seller’s attorney.

If the transfer fails to close because a contingency cannot be satisfied, it gets returned to the buyer. Similarly, the deposit is returned to the buyer if the transfer fails to close as a result of the fault or breach of the seller, in addition to which the buyer may be entitled to sue the seller for any damages sustained as a result of this breach of contract. However, if the transfer fails to close as a result of the fault or breach of the buyer, the buyer may be required to forfeit the deposit to the seller. In addition, the seller may also be entitled to sue the buyer for further damages sustained as a result of the breach of contract.

The seller receives the deposit and the buyer gets a “credit” or a reduction of the purchase price in the amount of the deposit. In other words, it is as if the deposit were returned to the buyer who then uses it to help pay for the purchase of the property.

The deposit made by the buyer at the time of the signing of the contract is intended as a good faith showing of the buyer’s sincerity and commitment to the proposed transfer by committing funds which the buyer could forfeit if he/she backs out. As such, the size of the deposit is directly related to the purchase price, the ability of the buyer and the resources available to the buyer. The size of the deposit has no material bearing on the substantive terms of the contract itself. Of course, the larger the deposit, the less likely it is that a buyer would back out and risk forfeiting the deposit.

If a good faith effort is made to satisfy a contingency and it can’t be done in the required timeframe, either the parties can agree to extend the timeframe or either party can elect to terminate the contract without further obligation to either party.

This depends on the specific contingency. Usually the party who benefits from the contingency, or their attorney or real estate agent, is responsible for taking the steps necessary to try to satisfy the contingency.

A “contingency” is a provision contained in a contract which makes it necessary for a specified event to occur in order for the contract to remain in effect. If the event doesn’t occur within the required timeframe, the contract may be terminated. Typical contingencies include an Attorney Approval Contingency (i.e. if my attorney doesn’t approve the contract, I can cancel it), a Mortgage Contingency (i.e. if I don’t qualify for a mortgage, I can cancel the contract); a Purchase Contingency (i.e. if I don’t find another house to buy, I can cancel my contract to sell); a Sale Contingency (i.e. if I can’t sell my house, I can cancel my contract to buy); an Inspection Contingency (i.e. if an inspection of the property by an expert discloses problems I wasn’t aware of, I can cancel the contract), etc.

No. The written contract is considered to reflect the entire agreement between the parties and no discussions or oral agreements will be considered to be part of the deal. Any such discussions should either be written into the contract, added to the contract as a written addendum which is signed by both parties or added to the contract as part of your attorney’s approval.

The other party is also bound by the terms of the contract. The refusal to proceed according to the terms of the contract constitutes a breach of contract, which would entitle you to seek to require the other party to perform under the terms of the contract and/or to pay money damages as a result of the breach. It is essential that you discuss your options and alternatives with your attorney should this occur.

No. By entering into a contract containing a mortgage contingency, you are agreeing to use your best efforts to obtain a mortgage commitment. Your refusal to cooperate with your lender, in good faith, would be deemed a breach of your contractual obligations.

No, not unless the terms of the contract allow for you to do so (see the answer below regarding “contingencies”). Unlike some other types of contracts, there is no grace period following the signing of the contract when it can be cancelled or “rescinded”. Once the seller has accepted a purchase offer, it becomes a legally binding and enforceable contract. Therefore, before submitting or accepting a purchase offer, it is critical that you are certain that you want to proceed upon the terms and conditions in the agreement.

Yes. The contract governs most every aspect of your transaction. You need a copy, both to refer to while reviewing it with your attorney and to refer to throughout subsequent stages of the transaction. However, once the transfer has closed, the contract is no longer of great significance.

Usually, your real estate agent will assume the responsibility of providing your attorney with a copy of the contract. To assist the real estate agent in doing so, it is helpful to be aware of your attorney’s name, address, telephone number, e-mail address and fax number. If there are no real estate agents involved, it is usually the responsibility of each party to provide his/her attorney with a copy of the contract.

Yes. The contract should be made subject to your attorney’s approval before you sign it. It is very important for you to discuss the contract with your attorney after you have signed it. There are a number of things your attorney will need to confirm and/or discuss with you before he/she can approve it on your behalf. To have your attorney approve the contract without first discussing it with you would defeat a good portion of the purpose for requiring the approval in the first place.

Only a limited number of people are authorized by law to prepare real estate contracts for you, among these are real estate brokers or salespeople (i.e. Real estate agents). If you are not working with a real estate agent, you are entitled to prepare the contract yourself. This is rather risky, however, as there are many issues and concerns that should be addressed in a contract and the failure to do so might well lead to substantial difficulties in the future. Instead, you should contact your attorney to prepare the contract in accordance with the terms and conditions you decide.

Maybe. Although you don’t need to sell a home in order to purchase a home, you may not be freely able to cancel your lease or rental agreement when you purchase a home. If you are a month-to-month tenant, you are usually required to give your landlord notice of your intention to vacate a full rental-month in advance (i.e. not simply 30 days but a full period of time covered by a monthly rental payment) or you could be obligated for an additional month’s rent. If you have a lease for a period of time (i.e. a number of years), you may remain obligated for the entire balance of the lease, unless other arrangements are made with your landlord.

Yes. Terms of an occupancy agreement can be negotiated at the time of the contract. In this way, both parties are aware of the need for occupancy from the start and potential problems can be avoided in the future. The standard contract form, used by most real estate agents, contains an optional provision regarding occupancy. However, a separate occupancy agreement should still be prepared by your attorney, incorporating all the significant terms and conditions of the occupancy–not just those set forth in the purchase agreement.

Under these circumstances, the buyer and the seller, through their attorneys, will typically reach an agreement that will either allow the seller to stay in the house past closing, or the buyer to move into the house before closing, as the case may be. Since the circumstances of each situation are quite different, the terms of such an agreement will vary from case to case. In any event, any such agreement should be in writing, signed by both parties and structured in such a way as neither party is required to assume any cost or responsibility which should properly be the obligation of the other party. For example, if the seller remains in the house after closing, the seller is typically required to reimburse the buyer for any mortgage, insurance and tax obligation of the buyer during the seller’s extended occupancy. Similarly, if the buyer takes possession early, the buyer would typically offset the seller’s mortgage, tax and insurance expenses. Various other issues, such as utilities, liability, damages and the like, should also be addressed in an occupancy agreement. Therefore, it is important that your attorney handle the preparation of this agreement. However, this is not always possible and it may be necessary to make alternate arrangements for temporary housing or temporary financing, pending the second closing.

sale of one’s current home and the purchase of one’s new home must occur at substantially the same time, in order to avoid either being without a home or owning two homes for a period of time. However, which contract should be entered into first is a matter of personal preference and is often determined by one’s own needs and expectations. For example, if you intend to search until you find your dream house, you may be better off finding it first, since it may take quite some time to do so and your existing home may sell before you have found what you are looking for. On the other hand, if there is an abundance of appropriate housing on the market and you anticipate your house may be difficult to sell, you may be better off selling your home first since it may take quite some time to do so and your inability to sell your home would make it impossible for you to perform on any purchase contract you may have entered into.

This is another question for which there is no definitive answer and every situation is different. Each party must make this decision based upon his or her unique needs and circumstances. With respect to price, it is a good practice to evaluate one’s circumstances before either listing a home for sale or looking for a home to purchase, and to determine ahead of time the lowest price you would be willing to accept or the highest price you would be willing to offer, as the case may be. In this way, your evaluation of a potential purchase offer won’t be affected by the emotions and the fast pace which inevitably surround negotiations. Always be willing to “walk away” if the deal doesn’t fit your circumstances. A deal that doesn’t fit your circumstances is no deal at all.

If a seller receives a purchase offer from a prospective buyer, which is acceptable, the seller simply signs the offer as his/her acceptance and the accepted offer becomes a contract. If, however, the seller requires any changes to the offer in order for it to be acceptable, the seller proposes these changes to the buyer in writing. This is called a “counteroffer”. Since a counteroffer is actually a further proposal, the buyer must accept it before it becomes a contract. Similarly, the buyer may make a counteroffer to the counteroffer, and so on, until both parties agree upon the terms of the transfer. However, at any stage of the process, if either party simply rejects the offer or counteroffer of the other party without making a further counteroffer, the negotiations are terminated and no contract is established.

In most types of contracts, dates are critical. This is not the case with real estate contracts where dates tend to be more like “target” or “control” dates and are not necessarily adhered to strictly. As such, the closing date stated in a real estate contract is not necessarily the date on which the closing will occur. For this reason, the closing date as recited is not always critical. Nevertheless, it should be set with sufficient time allowed to accomplish what needs to be done in order to prepare for closing. Your real estate agent is able to suggest an appropriate closing date, subject to confirmation by your attorney. In addition, either party may take appropriate steps, when necessary, to compel the closing to occur on or following the date recited in the contract.

This means that the seller is extending credit to the buyer to buy the property. Rather than taking money for the sale, the seller takes a private note and mortgage, or “paper” for all or a portion of the sale price. Of course, the loan needs to be paid back with interest over time.

A “private mortgage” is a loan, secured by real property, that is obtained from a source not typically in the business of lending money.

The decision of whether or not to accept a purchase offer is entirely up to the seller. However, when property is listed for sale with a real estate agent, the seller is “offering to sell” at the terms set forth in the listing. Therefore, if a prospective buyer offers to purchase the property under the exact same terms as set forth in the listing, the seller must accept the offer. However, if the buyer’s offer differs in any way from the listing (such as including any contingencies or conditions), the seller is free to reject the offer.

There is no definite answer to this question and each situation is unique. In making a decision on how much to offer, it is important to have as much information and experience as possible. It is generally advisable to consider the opinion of real estate agents, or other professionals who are familiar with the specific facts and circumstances.

Although real estate agents often make suggestions and recommendations regarding the terms of a contract, it is ultimately the buyer and seller who determine the agreement. The “negotiation” is done by the prospective buyer making an “offer” to the seller. The seller either agrees to the proposed terms or suggests changes by making a “counteroffer”. This, in turn, is either accepted or “countered” by the buyer, and so on. In the case of a particularly complex or difficult transaction, it is often beneficial to have an attorney handle the negotiation of the contract.

In most cases, all the real estate agents (both the real estate agent who lists the house for sale and the real estate agent who brings the buyer to the house) are paid a commission for their services by the seller. As such, all the real estate agents in such cases are all legally considered to be working for the seller. This doesn’t mean that a real estate agent who works with a buyer to find a suitable home isn’t helpful or trustworthy—only that their ultimate responsibility is to the seller. A buyer who wants a real estate agent to work for them–and not for the seller–may enter into a specific agreement with the real estate agent to work exclusively for them as a buyer’s agent, and pay them for their services.

There are various types of title insurance. The type of title insurance required by a mortgage lender is called “mortgagee” insurance. This insures your lender from any financial loss if a problem is discovered in the future with respect to your title to the property. Your lender requires you to get this policy to protect their interest in your home as security or collateral for the money they are lending you to buy the home. This insurance does nothing to protect you or your interest in the property.

Generally, it is not necessary for your attorney to review the contract before you sign it, AS LONG AS the contract is subject to your attorney’s approval. If the contract is subject to attorney approval, this gives your attorney the opportunity to review the contract discuss it with you, and make certain changes or modifications as may be appropriate to properly reflect your agreement. However, if the contract is not subject to attorney approval, you should NOT sign the agreement until your attorney has had the opportunity to review it with you.

Lack of care or outright abuse can result in serious harm to nursing home residents. Sometimes unable to speak up for themselves, elderly residents can be at the mercy of their caregivers. Common problems are residents injured in falls because inadequate precautions are taken, residents who are injured while wandering, bedsores, infections, inadequate nutrition and even intentional abuse. Every nursing home resident deserves to be treated with dignity and respect. New York law protects nursing home residents. If someone you love has been injured as a result of neglect or abuse, contact Lacy Katzen LLP’s litigation attorneys to discuss your claim.

You may have a claim related to a medication error if you suffered harm from the error. Medication errors can be committed by pharmacists, nurses or doctors. Typically, these occur when a patient is given the wrong medication, the wrong dose, or has an adverse reaction that the health care provider knew or should have known might occur. Our litigation attorneys can assist you in determining whether you have a valid medication error claim.

Maybe. Birth injuries can result in harm that will affect your child for a lifetime. Special, extended time limits apply to claims brought on behalf of children. Lacy Katzen LLP’s litigation attorneys can assist you in determining if you still have time to make a claim.

Yes. While there are certain risks to every procedure and not every bad outcome will support a medical negligence claim, no consent form can release a health care provider from responsibility for truly negligent actions. If our attorneys can demonstrate that negligence or a failure to meet the standard of care occurred resulting in harm, you may still be able to bring a claim.

Yes. In fact, the statute of limitations for medical claims is shorter than that for most types of negligence claims. You should contact an attorney as soon as possible if you have been harmed by medical negligence. The deadlines are even shorter for claims involving a municipal health care provider such as a county, state or federally operated facility.

Medical malpractice and nursing home negligence cases are handled on a contingency basis. This means that the attorney receiving a fee is “contingent” upon you getting a recovery in the case. In other words, the attorney only gets paid if you win or settle your case. If you are successful in your claim, the attorney will be paid a percentage of what you recover. This type of fee arrangement eliminates the risk to the client that they will have a large legal bill to pay if they do not recover on the case. Medical malpractice and nursing home negligence clients have already suffered a loss. They may have unpaid medical bills or be out of work due to their injuries. Most would not be able to bring a claim if they had to pay an attorney by the hour. This type of fee arrangement enables all injured people, regardless of their financial means, to be represented by highly skilled attorneys.

No. Lacy Katzen LLP’s litigation attorneys do not charge a legal fee for initial consultations for individuals with medical malpractice or nursing home negligence claims.

Medical negligence cases can be difficult to evaluate because of the complex medical questions involved. Every case has unique circumstances. Lacy Katzen uses nurse consultants and physicians to evaluate claims.

Medical malpractice is negligence committed by a health care provider. It can be a doctor, surgeon, nurse, physician’s assistant or pharmacist. The negligence can occur at a hospital, doctor’s office, surgical center, urgent care facility or nursing home. A health care provider is expected to provide treatment that meets the standard of care in the community. When a health care provider fails to meet this standard and causes harm to the patient, you may have a claim for medical malpractice.

At Lacy Katzen, we are committed to representing our clients effectively and economically. Matters can be handled under several types of fee arrangements depending upon the situation. These include hourly billing, contingency fee (where the firm is paid a percentage of the client’s recovery) or some combination of these billing methods. We understand that expense and uncertainty can make litigation a daunting concept. At Lacy Katzen LLP, we are committed to representing our clients both effectively and economically. We pride ourselves on full transparency with clients, and where appropriate, on our creative, alternative fee arrangements.

Although individuals are permitted to represent themselves in court, self-representation (sometimes known as proceeding “pro se”) presents many risks. Pro se litigants typically lack formal training, practical experience, and knowledge of procedural rules that can be important to a successful outcome.

Lawsuits must be filed within certain time periods known as “statutes of limitations.” This is the time established by law within which you must bring a claim. There are different time periods for different types of matters and even for different types of parties. For example, certain defendants, such as governmental entities, get the benefit of shortened time limitations. Also, there are exceptions to the time limitations that might extend your time. For instance, children get extra time under the law within which to bring their claim. If you fail to start a lawsuit within the time limits, your claim may be dismissed. Our attorneys can help you navigate these sometimes tricky issues.

Sometimes litigation can’t be avoided, but you can take prudent steps. For example, consult with a trusted attorney before entering into an agreement, lease, sale or business relationship, and don’t rely simply on oral representations. If you find yourself in a dispute with another party, contact an attorney as soon as possible. It may be possible to resolve the dispute before litigation is started or to take steps to protect your interests early.

If you get sued, you need to consult with an attorney immediately. Once served with a summons you only have a short period of time to respond – usually 20 days. If you do not respond in a timely way, the other party may be able to enter a judgment against you . It is important to consult an attorney to be certain that you respond on time and that you include in the response any defenses you may have as well as any claims you may have against the other party. Defenses and counterclaims that are not asserted in a timely fashion may be waived.

The main benefits of ADR include lower costs and faster resolution of cases.

Arbitration is an alternative ADR technique. The parties have their dispute determined by an arbitrator, which could be a single person or a panel of people, instead of a court and jury. Unlike mediation, the decision of the arbitration usually binds the parties.

Mediation is a non-binding ADR technique where a neutral third party, known as a mediator, listens to each party’s position and seeks to achieve a negotiated resolution. Mediation is typically not binding, meaning the mediator cannot force a resolution. However, some courts require litigants to participate in the process.

ADR is a technique where the parties to a dispute voluntarily allow a neutral third party to influence or determine the outcome for the dispute. These techniques include mediation and arbitration.

It varies widely: some litigated claims can be resolved quickly, whereas others may take much longer to conclude. Each case is different and depends on, among other things, the complexity of the legal issues and facts, cooperation of the parties and the volume of cases being handled by the court.

Most cases do not go to trial, principally due to the costs and risks involved for all parties. Many cases settle, and others are resolved by use of pre-trial motions for accelerated judgment. These motions ask the court to make a determination on the case based upon a question of law that does not require a trial. These include motions for summary judgment and motions to dismiss.

Litigation begins with the filing of a lawsuit. Generally, the defendant responds to the lawsuit by serving an answer. Once the defendant responds, the parties often exchange relevant information through a process called discovery. After discovery is complete, the lawsuit can be resolved by the court or a jury at trial or by use of alternative dispute resolution techniques like mediation or arbitration. Even after the court makes a final determination, either party may appeal. At any point in the process, the parties can resolve the matter out of court if they are able to negotiate a settlement that is agreeable to all parties.

Just about any kind of dispute can be litigated. Litigated claims can include personal injury , medical negligence, nursing home negligence, motorcycle, truck and auto accident claims, defective products, and business and contract disputes.

Litigation is the process by which disputes are resolved through use of the court system.

There are trusts, called Special Needs Trusts, which can be established in your Will for a beneficiary who is disabled. A Special Needs Trust allows the beneficiary to keep receiving public benefits like SSI or Medicaid. Having a sibling or other person “hold” assets for a disabled person can present significant risk, as that person may die, become disabled, get divorced, or file for bankruptcy, exposing the assets intended for the disabled beneficiary.

Certain assets, such as life insurance, retirement plan and annuities, pass outside of your Will directly to beneficiaries on file with the company holding the asset. Coordinating beneficiary designations with your Will is a key component of an effective estate plan. Otherwise, assets may not pass as intended or may not fund trusts established by your Will. For retirement plans subject to income tax, properly designating beneficiaries is critical; opportunities to defer income tax on retirement assets may be lost and reduce the long-term growth potential for the retirement assets.

That depends on what other assets you own and if there is any estate tax owed. Your beneficiaries could be required to pay taxes with no orderly process to do so. If your Will sets up trusts for minor children or disabled beneficiaries, there may be nothing available to fund the trusts if all accounts are Transfer on Death. This is why planning to comprehensively coordinate all aspects of your estate plan for your loved ones is cost effective and beneficial.

You get what you pay for. Often those forms are not specific to New York State. You will end up with a signed Will form which, if not properly executed, may not be legally valid. A one-size-fits all form does not capture the legal expertise that goes into estate planning; that includes reviewing your assets (probate and non-probate) and coordinating your Will, trusts, beneficiary designations, and proper titling of your accounts, and taking estate and income tax issues into consideration, working with you, your accountant and your financial advisor to achieve a comprehensive estate plan.

You will also have access to periodic review of your estate planning when tax laws change or when documents need to be updated due to statutory revisions. Finally, the cost of probating your “form Will” could be very costly if a judge has to resolve issues or the Will or its execution is contested.

New York State imposes a default estate plan for you; it is called the law of intestacy and the statutes dictate that your closest relatives will inherit your assets.

A Living Will is an expression of your intentions regarding medical care should you have a terminal or incurable condition. In the event this occurs, you can direct that medical care should be withheld, unless it will alleviate pain or suffering.

Because you can choose the person to make healthcare decisions for you if you cannot make them for yourself.

Your family must undertake an expensive guardianship proceeding in court to get someone appointed to act as your guardian, who will have authority to handle your affairs.

Because if you become incapacitated or incompetent, it allows your designated agent to act in your place to handle your affairs, such as paying your bills. Further, a properly drafted Power of Attorney allows your agent to implement strategies to protect your assets from the cost of long-term care or make gifts of your assets to minimize potential estate or income taxes.

Your Last Will and Testament allows you to appoint an Executor and Trustees, designate how and to whom your assets are distributed upon your death, whether to family members, non-relatives or charities, and also allows you to establish trusts for minor or disabled beneficiaries. Your Will is also important for estate tax planning purposes and also allows you to appoint a Guardian for a minor child, and Trustees to handle trust assets for a minor or a disabled beneficiary.

Estate planning seeks to ensure that if you die or become disabled, your personal and financial matters are handled according to your objectives, while minimizing the financial and emotional cost.

Each estate is unique, the amount of time to administer an estate depends upon whether there are objections to the Will or appointment of the Executor, the time necessary to locate and notify beneficiaries and other interested parties, whether sufficient assets are available to pay debts or if it is necessary to negotiate with creditors, and if an estate tax return is necessary, when the estate receives a closing letter indicating no additional estate tax is due.

While the Will reading has made for many dramatic moments in movies and television throughout the years, this is not required in New York State.

A person or entity must having standing, or a financial interest in the outcome, to be able to contest a Will. For example, a child disinherited by a parent should have standing the challenge the parent’s Will. Even if someone has standing to contest the Will, the person must prove to the Surrogate’s Court that the Will was invalid in order to change the distribution provisions or prevent the appointment of the Executor.

New York State law requires that certain family members (called “distributees”), beneficiaries and fiduciaries named in the Will receive notification of a probate proceeding, so that they have an opportunity to appear in the Surrogate’s Court and present any objections to the Will or the appointment of the Executor.

The probate estate includes any assets owned individually by the decedent at death that do not name a beneficiary, such as bank accounts, taxable investment accounts, real estate, personal property such as cars and jewelry. Assets such as retirement plans (401(k), IRA, 403(b)), life insurance and annuities often pass directly to beneficiaries designated by the decedent. In some cases, if no beneficiary is named, these assets may be included in the probate estate. Other assets may be jointly owned, in which case the asset will pass automatically to the surviving joint owner. Transfer on death designations allow a decedent to direct that an asset pass outside of the probate estate, directly to named beneficiary(ies).

New York State law allows Executors to receive payment in the form of a commission, which is determined as a percentage of the decedent’s probate estate. The commission rate ranges between 5% and 2%, decreasing as the size of the probate estate increases.

In addition to collecting assets and paying debts of the decedent, an Executor may need to file an estate tax return for the estate, file a final personal income tax return for the decedent and a fiduciary income tax return for income received by the estate. Prior to closing the estate and distributing the remaining assets to the beneficiaries, an Executor may need to prepare an accounting detailing the assets collected, expenses paid and proposed distribution to each beneficiary.

Once an Executor is appointed, the Executor can begin to collect the decedent’s assets, open up accounts in the name of the estate, sell assets such as real estate and marketable securities to provide the estate with liquid funds, and pay expenses, and settle any of the decedent’s debts.

Although a person may be named in a Will as an Executor, that proposed Executor does not have the authority to administer the decedent’s estate until they are officially appointed by the Surrogate’s Court after probate of the Will. This appointment is called granting “Letters Testamentary” to the Executor. Those Letters Testamentary are proof to financial institutions and others that the Executor has the Surrogate’s Court approval to act on behalf of the estate.

Probate is a court proceeding where a decedent’s Will is presented to a judge to prove its validity and authorize the appointment of Executors, Trustees and Guardians named in a decedent’s Will. In New York State, the Surrogate’s Court oversees probate matters in each county.

Estate administration is the process of collecting and transferring assets from a decedent to the decedent’s beneficiaries. The process may involve a probate proceeding in the Surrogate’s Court to appoint Executors, Trustees and Guardians named in the decedent’s Last Will and Testament, working with beneficiaries to transfer and retitle non-probate assets, such as retirement plans, annuities and life insurance, and preparing and filing federal and state estate tax returns, along with the decedent’s final income tax return and fiduciary income tax returns for the estate.

A Client may always request an update by utilizing a dedicated email address. If the client has multiple accounts, a status report may be requested and a client is advised of the status of every open account on a periodic basis.

We typically remit to a client once a month. A client will receive a detailed statement of account with the remittance. The monthly statement identifies monies recovered by the firm and disbursements incurred. Attached to such statement will be a net remittance check, representing all monies collected, less the firm’s fee and disbursements in the event the matter is on a contingency fee basis. If the matter is hourly, you will receive an itemized statement reflecting the work performed during the preceding month along with a bill for services rendered.

Claims are not settled without first obtaining the client’s approval, unless the settlement is within the client’s pre-arranged settlement criteria.

Our fees are discussed and agreed upon prior to accepting your claim and incorporated into the acknowledgement or retainer. Normally, the fee is contingency and is only earned when we collect from the debtor. Other fee arrangements include hourly charges, if preferred. In the event the debtor submits a counterclaim, you will be responsible for an hourly charge to be agreed upon between us.

It depends upon the court. If City Court is used, we request an advance of $350. If Supreme Court is used, we request an advance of $550. These amounts will cover the filing fee and process server fee.

After judgment is entered, enforcement proceedings are immediately commenced. Income execution to garnish wages, restraining notices to banks and information subpoenas to locate other assets are utilized. All legal avenues are taken to enforce your judgment.

Your file is advanced the appropriate number of days depending in how the debtor was served for us to enter judgment. In the event an answer is received, the file is coded accordingly and the matter is discussed with you for the next course of action. Typically, the matter can be resolved through a summary judgment motion or a negotiated settlement between the parties.

In the event contact with the debtor fails to produce a payment arrangement, our office will prepare a Summons and Complaint and send it to you to review and sign off on it through a verification page. Once it is returned to our office, we will file the Summons and Complaint with the appropriate court to initiate suit.

You will receive an acknowledgment of the claim placed with our firm and the terms agreed upon for us handling the placement.

Once you agree with the terms by executing the acknowledgment or retainer agreement, an initial demand letter is mailed to the Debtor. Our initial demand letter complies with all requirements of the Fair Debt Collection Practices Act (FDCPA) in the event the collection is considered a consumer credit transaction.

In addition to the demand letter and within the first month of placement, our staff will verify the information you provide us, skip trace if necessary and return any phone calls the debtor made to us in an attempt to settle the matter.

If settlement cannot be reached or an amicable payment arrangement entered into by the debtor, immediate litigation is recommended when the debtor has a known asset such as a place of employment or owns real property.

Lacy Katzen LLP handles claims throughout the entire State of New York.

When estate planning or business succession planning is done properly, all eventualities are taken into consideration including the possibility of your own incapacitation. As head of a business, succession planning will provide the proper legal authority for others to step in and operate the business including contract negotiation to purchase supplies. Additionally it is possible that certain banks, suppliers, and government agencies would be unwilling to continue business if there is no incapacitation plan in place.

Determine the goals you want to achieve with succession planning by considering the core values of your organization and how they might be achieved through succession. Take into account organization-specific statistics on turnover, retirement, and promotion to target important outcomes for your organization. We have found that reviewing your goals with your banker, your accountant, your insurance agent and your attorney helps to ensure that your goals can be met and that efforts to meet your goals are well coordinated.

Your business succession plan will be developed to fit the specific needs of your business. Common questions that need to be considered to develop the plan are:

• Who takes over the immediate day-to-day control of your business in the event you are incapacitated?
• Is it clear to your employees, business associates, and family who will take over in your absence and will they accept that person as their leader?
• Does the individual designated to take over have the legal authority to do so?
• Will your family continue to benefit financially from the success of the business if you are incapacitated?
• If you become permanently disabled, or retire, who will take over your business?
• Will your business be included in the probate of your estate?
• If your business will be part of your estate, what will happen to the value of your interest in the business if it is sold and how will the value of your interest be determined?
• If your business is a family owned business, have you prepared the next generation to take over?
• Have you set up the proper legal structure for the business to facilitate the transfer to the next generation?
• What will the tax implications be for your business should you die?
• Does the business have sufficient liquid assets to cover any tax debt that might be owed when you die?

To ensure that the financial interest you have made in your business is protected if you retire or are involved in a catastrophic event.

Business succession planning is the process of taking the necessary steps to ensure your company always has the right leaders in place in the event of sudden changes occurring. Examples of sudden changes include but are not limited to death, incapacity, serious illness, accident, or retirement. Succession planning keeps your business moving forward when one of these sudden changes occurs.

Unfortunately, there are no personal injury protection or no-fault insurance benefits for motorcyclists. Although some motorcycle policies include medical benefits, the coverage is frequently insufficient to pay your medical bills. Often you may be limited to the benefits available under your personal health insurance, Medicaid or Medicare to immediately pay your medical bills.Only a personal disability insurance policy or disability insurance through your employer may be available to pay for your lost wages. In the case of a motorcycle accident resulting in serious personal injuries, a claim against the at-fault driver may be your only source of recovery for unpaid medical bills, lost wages and other damages.

No. The rules that apply to motorcycle cases are very different from those that apply to car accidents. Motorcycles do not have the benefit of no-fault insurance benefits. They also do not have the same restrictions in bringing a claim and do not need to meet the same “serious injury” threshold. Motorcyclists are particularly vulnerable on the road. Many drivers do not act prudently around motorcyclists and follow or pass too closely. Some drivers find motorcycles difficult to see and pull out or turn in front of them, leaving the motorcyclist no time to react. Serious injuries to motorcyclists who are involved in even minor accidents are common. If you are in a motorcycle accident it is important that you contact an attorney as soon as possible. Prompt investigation of the scene can be particularly important since a seriously injured motorcyclist may have no recollection of the event. Our litigation attorneys can assist you with a prompt investigation to preserve evidence that may be critical in pursuing a claim.

Your insurance policy should provide something called “Uninsured (UM) or Underinsured (UIM) Motorist Coverage.” This coverage is very important since many people on the road are either uninsured or carry the minimum insurance policy limits allowable by law. Their insurance benefits may not be sufficient to compensate you for serious injuries. Be certain to purchase the same limit for your UM or UIM coverage as you do for your liability coverage. If you are seriously injured in a motor vehicle accident, you can make a claim under your own insurance policy to cover the injuries caused by another driver who is underinsured.

Do not make any admissions at the scene. Do inquire if anyone is injured and call for help as needed.
Report the accident as soon as possible to your insurance carrier. A failure to notify your insurance carrier may result in your insurance carrier disclaiming coverage for the accident. Ask your insurance company if you are required to file a report with the New York State Department of Motor Vehicles known as a DMV-104. Failure to file the report may result in suspension of your license.
If you receive a traffic ticket, talk to an attorney before pleading to any charge. A gulity plea can be used as an admission of negligence if a claim is brought against you for personal injuries.A guilty plea, even to a minor infraction can be used as an admission of negligence if a claim is brought against you. Our litigation attorneys can assist you with any traffic tickets or Department of Motor Vehicles hearings that might arise after the accident.

Perhaps you think that you should negotiate directly with the insurance company. The insurance adjuster for the person who caused your injury may contact you and try to convince you that you should not hire an attorney and share any portion of your settlement. But, should you really take advice from the insurance company that represents the other side?

Before you even consider attempting to handle your own claim, there are some things you should know. First, an experienced personal injury lawyer can evaluate any offer that you might receive so that you know whether or not you are getting fair compensation for your injuries. The insurance company is a business. Their goal is to pay as little as possible on every claim to increase their profit margin. They work for the other side, not you. Second, anything you say can be used against you should your case proceed. Insurance adjusters or private investigators may be sent to take a written or recorded statement. You will be asked to provide authorizations so that the insurance company can obtain information about you. They may ask for information to which they are not entitled. The insurance company might make promises to you that it intends to settle your claim if you provide all of the information it requests. After you have provided the information, the insurance company may tell you that it does not wish to make you an offer of settlement or may make an unreasonably low offer. An experienced attorney knows what information to provide, when a statement should be given and under what circumstances.

Preparation often needs to be done to put your case in a position to receive a reasonable settlement offer. The attorney may need to gather physical evidence, witness statements and even expert reports to put your case in the best position to settle. When you are not represented by an attorney, you do not have the leverage that a lawsuit will be the response to an unreasonable settlement offer. Insurance companies keep records about attorneys. They know which attorneys are serious about pursuing their claims. Any settlement offer that you receive may very well reflect your lawyer’s experience and reputation. You have absolutely no experience.

The insurance company wants you to represent yourself, which is why they often make the suggestion. The insurance company knows that if you represent yourself, you may make mistakes. You may settle your claim too early, only to find out that you have additional injuries and may have significant additional medical costs which were not considered when you accepted your settlement. You may miss a filing deadline and be barred from bringing a claim at all. You may not realize there are liens against your settlement that you are responsible to pay. Just as an experienced accountant may pay for himself by getting you a bigger refund on your tax return, an experienced personal injury attorney is a valuable resource that is essential to the fair and proper handling of your claim. At Lacy Katzen LLP, our personal injury attorneys have been helping injured people and their families for over 70 years.

Motor vehicle accident cases are handled on a contingency fee basis. This means that compensation to the attorney is “contingent” upon you getting a recovery in the case. In other words, the attorney only gets paid if you win or settle your case. If you are successful in your claim, the attorney will be paid a percentage of what you recover. This type of fee arrangement eliminates the risk to the client that they will have a large legal bill to pay if they do not recover on the case. Motor vehicle accident clients have already suffered a loss. They may have unpaid medical bills or be out of work due to their injuries. Most would not be able to bring a claim if they had to pay an attorney by the hour. This type of fee arrangement enables all injured people, regardless of their financial means, to be represented by highly skilled attorneys.

No. Lacy Katzen LLP’s personal injury attorneys offer free consultations. You should contact an attorney as soon as possible after the accident to be certain you are taking the right steps to preserve your claim.

Yes, if your injuries are serious, as defined by New York law. In New York, a person injured in a motor vehicle accident is required to meet a certain level of injury before they are allowed to file a claim. Unless you meet the criteria for a “serious injury” as defined by the law, you will not be able to file a claim for compensation against the other driver. The legal definition of “serious injury” can be quite complicated. Lacy Katzen LLP’s litigation attorneys can help you determine whether or not you meet the serious injury threshold.

In most situations, your own automobile insurance carrier will pay for your accident-related medical bills and a portion of your lost wages, regardless of who caused the accident. These benefits are called “no-fault” benefits. It is very important to promptly notify your insurance carrier of the accident and fill out all the paperwork they request in order to qualify for these benefits. Strict deadlines apply. It is also important to tell all of your medical providers that they should bill your automobile insurance carrier, not your health insurance, Medicare or Medicaid. You may need to remind your health care providers to bill the auto insurance at each visit.

Call the Police If you have been involved in an auto, truck or motorcycle accident, your first call should always be to the police. Even if the accident seems minor, some insurance companies require a police accident report. Also, you may not realize you are injured and require medical attention until after the adrenaline wears off.
Collect information from the scene. If you are able to do so, write down the names, addresses and phone numbers of any witnesses to the accident. Many people assume that the police will gather this information if they are called to the scene, however this is not always the case.In addition, if you are able, and it is safe to do so, take photos of the vehicles at the scene.
Seek medical attention. If you are injured, seek medical treatment immediately. Accident victims do not always recognize their injuries, or the potential seriousness of an injury, immediately following an accident. Consequently, they may choose to delay seeking medical attention. This delay can jeopardize the effectiveness of any necessary medical treatment. Delaying medical treatment can also complicate a legal claim by calling into question whether or not an injury was in fact caused by the accident.
Notify your insurance company. After an accident you should notify your insurance company as soon as possible and provide all requested information. If you do not report the accident, the insurance company may deny payment of your claim for property damage, medical bills or lost wages.
File an MV-104 if required. An MV-104 must be filed with the New York State Department of Motor Vehicles within 10 days of any accident occurring in New York State that causes a death, personal injury or damage of over $1,000 to the property of any one person. Failure to do so within 10 days is a misdemeanor. Your license and/or registration may be suspended until a report is filed even if you were not at fault in the accident. It is best to contact an attorney to assist you if you are not sure whether or not you need to file this report or if you need help filing the report.
Do Not speak to the other driver’s insurance company. They work for the other driver and any statement you make to them can be used against you.