Your Will During COVID-19: To Do or Not To Do
February 10, 2022| By: Jeffrey L. Nogee
An article in the Wall Street Journal (December 6,2021) noted that “young adults act to get affairs in order, citing unease over pandemic…” The current global virus certainly has made everyone focus on issues of sickness and mortality, but the reasons for having a Will have not changed.
If you live in New York State, the ;aw provides for the transfer of your assets owned at your death. There are rules and procedures if you have a will and even if you do not have a will. In either case, however, the rules apply only to those assets you own in your own name alone at that time.
A will does not cover anything you won jointly with another, for accounts with named beneficiaries (including bank, brokerage, life insurance, and the like) or living trusts (that is, trusts created while you are alive as opposed to trusts created in your will).
The benefits of having a valid will include:
– directing how and to whom your assets will go after you die;
– directing how your debts, expenses and even taxes will be paid
– setting up an estate plan to minimize estate taxes;
– making arrangements for the care of a surviving spouse, minor children and persons with special needs;
– choosing who will be the guardian of your minor child if you and your spouse die at the same time or if the surviving spouse is unfit or otherwise unable or unqualified to be the guardian;
– choosing who will be handling your estate (the executor and perhaps one or more trustees) to ensure that your wishes are carried out; and
– other cost savings such as directing that the executor does not have to file a bond with the court. (One requirement before being appointed is that an executor must file a financial surety bond to insure that the beneficiaries are protected if the executor mis-performs or even absconds with estate assets).
If you do not have a will, then the law sets out a schedule for who inherits your assets and who will be appointed to administer your estate as well as who might serve as guardian of your minor children.
Even if you have a written will, the document must be admitted to probate, meaning the Surrogate’s Court (a specialized court that generally handles matters involving people who have died) must review the will and related required documents and determine that it meets that statutory requirements. Those requirements include:
– Signing at the end in front of two witnesses who also must sign;
– Having the mental capacity to make a will; and
– Being made by the exercise of free will and not the product of fraud or undue influence of another
Until the will is admitted to probate and the executor is appointed, no one is empowered to act for the estate of the person who died. (Exceptions for preliminary appointment in emergency situations exist.)
These rules and requirements can lead to costly and lengthy litigation known as will contests where possible heirs seek to invalidate the will. Careful drafting and planning are needed, therefore, in an effort to avoid such contests.
Even then, if enough money is involved (it’s almost always about money), a will contest may still occur.
For those young adults interested in getting their affairs in order, seeking the advice of an attorney experienced in trust and estate law should be the first step.
Your computer is not your friend
October 31, 2021 | By: Jeffrey L. Nogee
I recently helped a client who came in with an unusual problem.His Internet service provider (ISP) sent him a notice that it had received a subpoena in a Federal Court case seeking disclosure of his identity and personal information.
Upon review it turned out that he was being sued for copyright infringement for allegedly downloading and distributing copyrighted videos from an adult entertainment producer.The plaintiff only could identify the IP address of the computer and the ISP, so they developed a clever plan to threaten to expose the individual and make his name public through use of the subpoena to the ISP.
All of this while the individual did not seek out the material, did not knowingly download it and did not distribute it.But his computer did through a program called BitTorrent (BT).While BT is not illegal – it simply is a peer-to-peer file sharing protocol – its use to download copyrighted material without permission is a violation of the Federal copyright laws.The key to BT is that it would break files down into “bits” which are distributed among users and then can be reassembled into a whole movie or other file.
The copyright holder had developed a kind of spyware that could detect whenever bits were downloaded and shared and could geotrace them to individual IP addresses and locales.Their attorneys then filed hundreds of lawsuits in Federal District Courts around the state alleging copyright infringement seeking statutory damages of $750.00 per incident as well as actual damages for illegal distribution (the sharing part of BT) in six figures.
Relying on the threat of publicly identifying the alleged infringer and his alleged actions, the copyright holder and its attorneys were interested in quick and dirty settlements without bothering with things like proof or evidence beyond the geotracing and IP address.This resulted in negotiation of a relatively small settlement payment on the condition of maintaining anonymity and no further court activity.
All because the individual had BT activated on his computer which operated independently in the background and fell prey to “copyright trolls” – a term associated with outfits that leverage copyright ownership to bring questionable lawsuits to extort settlements.According to Wikipedia, “In the United States, more than 200,000 lawsuits have been filed for copyright infringement on BitTorrent since 2010.”
Tip: if the copyright trolls come after you, you do have the right to defend yourself, but better to keep a close watch on who or what your computer is talking to over the Internet.