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James K. Riley
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James Riley’s Answers

57 total


  • What format or document do i need to appoint a co-trustee to revocable family trust

    I want to prepare this document. I do not wish to retain an attorney.

    James’s Answer

    No individual should be preparing, amending or modifying a written trust agreement--whether it is a revocable trust or irrevocable trust--without the guidance and assistance of an attorney. Trust agreements are quite technical and it is easy to make grievous mistakes--I have seen situations which took thousands of dollars in legal expenses to unwind and repair "do it yourself" wills and trusts when it would have taken only a fraction of the amounts expended to have an attorney get things right in the first place. As to the details of your question, the procedures for the appointment of a trustee, co-trustee, and substitute or successor trustee is usually spelled out in detail in writing in specific article or subsection of the trust agreement. I should also mention in closing that revocable trusts are absolutely useless for Medicaid and elder law planning purposes which are most likely primary
    reasons to have a trust in the first place. Consult an attorney and have the attorney prepare the trust documents and any needed deeds to go along with the trust concerning real property.

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  • How do you obtain records from a closed Medicare fraud case in Pearl River, NY office.. Occurred around 1999.. In New Rochelle

    Elderly man was beaten in his nursing home. A case was opened. The man has 3 children. And a living spouse. One son left town soon after the case was apparently "closed" and cut off many ties with family. Remaining siblings are filing Medicaid to...

    James’s Answer

    I had a somewhat similar case and I wrote to the Office of the Attorney General or District Attorney who had handled the matter and that office shared contents of the file with me as the attorney for the elderly individual who had been the subject of the alleged fraud or abuse (and who by the time of my inquiry had died). I suggest that you have your attorney attempt to contact the Attorneys in the Medicaid Fraud and Abuse Office. You can also attempt to us the New York Freedom of Information Law (F.O.I.L.) to seek information. They may refuse, however, to release any grand jury minutes or proceedings but may allow access to other materials in their files. You may have a statute of limitations (passage of time) problem with any possible claim. Consult with an attorney immediately.

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  • What are the advantages and disadvantages to using a referee versus a judge ?

    I like my judge but there may be a possibility to save money and time using a referee. What other pros and cons are there ?

    James’s Answer

    The term "referee" is somewhat unclear and you may mean either a "Magistrate" judge in a federal court case (a type of Judge lower in rank to a federal district court "judge") or a mediator or hearing officer in state court--the individuals holding these positions are federal or state employees and any decision they render (court mediators just recommend as a rule) can usually be appealed to a higher court. Of course, appeals can be expensive but you may turn around a decision that you are not satisfied.with. Private arbitration is a horse of completely different color--court rules of evidence ordinarily do not apply so it is faster and often much more inexpensive--but no appeal and bad arbitration decisions, as well as good ones,do exist. Explore this issue carefully with your attorney--your attorney wants to prevail in your matter just as much as you do,

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  • How long does probate take after house is sold

    Probate started one year ago and house sold 30 days ago.the estate owed a small mortgage,real estate broke fee and the lawyer.about how much longer will it take?

    James’s Answer

    In an estate, the executor after he or she has been appointed by the court has a duty to "Marshall" the estate; this means that the executor mus locate and identify all of the assets, including the house you are asking about, owned by the person who died and pay all of the outstanding debts and any possible taxes. This process can take a year or more. After it is accomplished, the estate expenses are paid--lawyer, etc and the executor may request, but does not have to take, executor's fees or commissions All remaining monies or assets are then distributed to the beneficiaries under the will after those beneficiaries have signed off by a receipt and release that they are satisfied with all of the transactions and marshaling of the estate which are reported by the executor in an informal, or if necessary but much more costly formal, written accounting. The important point to remember is that an estate administration is not a race--it does take time to do it properly.

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  • If a deed is in surviving tenants by the entirety can the real estate to left to another in a will?

    If there is a deed to a house in the son and father's name as tenants with rights of survivorship but the father's will leaves all real estate to both the son and a daughter is the daughter entitled to a portion of the real estate even though the ...

    James’s Answer

    The question refers to two different types or forms of "survivorship" ownership of assets-survivorship results in the transfer of ownership to the surviving owner when one of several owners of the asset dies. Survivorship is a will substitute--instead of the will the property becomes owned by "operation of law" (in effect automatically) by the individual on the deed who lives longer and outlives the other who has passed away. If the owners on the deed which provides for transfer to the surviving deed owner are married husband and wife (or h&h, or w & w under New York law), it is a "tenants by the entirety" survivorship deed. If the individual owners are not married, the deed is a "joint tenancy with right of survivorship" deed. Both of these forms of survivorship effectively "trump" or override anything that is said about the property in a will by either joint owner. Unless the joint tenancy relationship was caused by undue influence or improper acts to end run the will but that is a very hard thing to prove. Anyone involved in such issues must consult with an attorney

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  • If a lawyer has freehold on my deceased parents house what does it mean?

    No will left, so why don't I get the house

    James’s Answer

    The word "freehold" is not a commonly used one in your situation. If you are the only child (no siblings and no child or children of pre-deceased sibling) and your parents owned the house without any mortgages, you own the house by operation of law. If you have siblings (or if you have nephews or nieces as children of a predeceased brother or sister), they are entitled to share ownership of the house with you as "tenants in common". Speak to this lawyer again to find out what exactly he is saying and in any event do not hesitate to get a second opinion from a different attorney. You may be able to sell the house, with your siblings, (i) without court adminstration or (ii) you may have to get court approval through an adminstration proceeding--it all depends on what the title company acting for your purchaser of the house requires. This is complex stuff --definitely consult with a competent attorney you trust.

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  • My 16 year old daughter has chosen to move in with a family she babysits for. We live in New york. What legal rights do I have

    to make her come home? We get along fine but she wants to go to a different school.

    James’s Answer

    There is some possibility that your daughter will try to claim that she is "emancipated"!and no longer under your parental control--always a very difficult situation. She is still legally obligated at age 16 to attend school under New York' s compulsory education laws. Try to see if you can reach out and communicate with her and to try to continue to monitor how she us doing, perhaps with the help of an intermediary who she trusts. do not give up on reasonable efforts to coax her or convince her to return to living with you. Good luck.

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  • I fell on ice in a city owned parking lot and had resulting medical expenses: is the city liable for those expenses?

    I slipped on black ice in a city owned parking lot...it appeared to be dry and clear. It happened so fast, my feet were up in an instant and I was on my hip on the ground before I could react. I had flat soled winter boots on. As my weight shif...

    James’s Answer

    I do not practice law in your state but I do practice law in two other states that can get pretty cold and icy-New York and New Jersey. Claims and suits against towns and cities and other governmental entities are often extremely difficult especially as to ice. But there was one recent case in New York that said if the local governmental piles up the snow through plowing so that the melt and runoff flowed downhill, they could be liable for creation of a hazardous freeze thaw condition. Take a look at the location where the fall occurred to see if you could validly and in good faith try to make such an argument. And watch out for any written notice time constraints which you might have to meet. Talk to a lawyer in your state immediately. And say hello to Garrison Keillor (sp?) and Prairie Home Companion.

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  • Do principals have the right to solve crimes?

    My friend is in high school and his principal took his wallet because he had a slight (emphasis on slight) suspicion that it had weed in it. He opened it, saw the weed then called the cops. By opening his wallet to see if he was breaking a federa...

    James’s Answer

    Public school principals can search students in a school setting on the basis of reasonable cause or reasonable suspicion even if they subsequently turn contraband which they obtain in such a search over to the police. Reasonable cause or reasonable suspicion is a very low or minimal standard or legal threshold. Police can only search, even in a school setting, if they are acting on the basis of probable cause which is a much higher standard or threshold under the law-the Fourth Amendment to the U.S. Constitution applies to these issues as well as the leading Supreme Court of the U.S. decision in the case of New Jersey v. T.L.O.

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