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David Roach’s Answers

6 total

  • Does a will need to be filed with the court after a death?

    My father passed away in January of 2007. My mother went to the lawyer and took the original copy of his will as she is listed as executrix. She proceeded to pay off some creditors, but never filed the will with the court or informed the mortgage ...

    David’s Answer

    A will does not have to be offered for probate (submitted to Surrogate's Court in New York) if the deceased did not own assets that did not otherwise transfer at death. For example, if your father owned accounts, either bank accounts or securities accounts, jointly with your mother, she would take title upon his death due to her right of survivorship. Even if such assets were owned only in your father's name, the accounts may have had "payable on death" or "transfer on death" instructions that named your mother. Also, under NY law certain assets are exempt from probate where there is a surviving widow, as in this case (the so-called "family exemption").

    With respect to the house, your father may have been "on the mortgage" (meaning he owned the house and signed the documents necessary to create the lien of the mortgage) but your mother may have been a co-maker of the note that was secured by the mortgage. That would be a reason for her to continue to make payments on the note (technically, payments aren't made "on the mortgage;" rather, the mortgage is a lien that encumbers the property as collateral for the note). If your mother had no ownership interest in the house and there is no direction in the will that she receives either all of your father's property or the title to the house, you and your siblings would be entitled to a share of the house as well as the estate.

    Your mother's 2007 tax return could have been filed jointly as a married person because your father's death occurred the same year. For 2008 she would have to file as a single person. It does not sound like anything improper was done.

    If you believe there is probate property (non-exempt property owned in your father's name that did not automatically transfer because of his death), you could petition the Surrogate's Court to be appointed administrator of your father's estate. After that, you mother might offer the will for probate (assuming there was probate property to be disposed of according to the will). Given the facts that you have explained, it is probable that there simply isn't any probate property and, therefore, no need to probate the will.

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  • What are possible tax liabilities for changing the name of our partnership

    Is it posiible to undo a name change and a partnership change in a partnership (llc) made earlier this year and give the newly named company a new ein number and keep it's new name while giving the old company back it's old name and old ein number...

    David’s Answer

    There are some ambiguities in her question. It sounds like the LLC is in existence and you are simply changing the name and the ownership interests (perhaps a member is leaving). A change of name has no tax consequence. Moreover, it is not a reason for changing the employer/taxpayer identification number. By analogy, it's like the situation when a women gets married and takes her husband's name - her social security number remains the same.

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  • What are possible tax liabilities for changing the name of our partnership

    Is it posiible to undo a name change and a partnership change in a partnership (llc) made earlier this year and give the newly named company a new ein number and keep it's new name while giving the old company back it's old name and old ein number...

    David’s Answer

    There are some ambiguities in her question. It sounds like the LLC is in existence and you are simply changing the name and the ownership interests (perhaps a member is leaving). A change of name has no tax consequence. Moreover, it is not a reason for changing the employer/taxpayer identification number. By analogy, it's like the situation when a women gets married and takes her husband's name - her social security number remains the same.

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  • Can a husband be liable for wife's medical bills

    My wife has incurred medical bills. She received a letter from an attorney stating he has file papers with the court and she has 30 days to respond to the court. I am also name in the filing. Can tI be sued even though they are her bills? She ...

    David’s Answer

    In most states (NY where I practice) spouses are responsible for each others support. That obligation clearly includes "necessaries" such as medical treatment. If your wife's insurance does not pay her claim, the difference (the amount not covered by the insurance) is her personal liability, and by virtue of our marriage, your personal liability, as well.

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  • What is the procedure for closing an estate in New York

    How do you close an estate when there is no will and there is no money in the estate to pay off creditor. The money the estate was to collect had designated beneficiaries and there is no real property involved

    David’s Answer

    There may be nothing to "close." It sounds like the decedent owned property that transferred at death because of the form of ownership: e.g., bank accounts owned jointly with right of survivorship (sometimes designated (JTWROS) on the account title, or accounts held "in trust for" (sometimes designated ITF or Totten Trusts - named after the NY case taht recognized this form of transfer) the beneficiary, life insurance payable to someone other than the estate, pension benefits to a survivor, etc.. An estate needs to be "opened" if the decedent owned property that did not transfer automatically (like the above examples) at death. One caution: a creditor can "follow" the decedents assets to a beneficiary in certain cases. For example, if a creditor can establish that the decedent's joint bank account was funded solely with the decedent's money and the co-owner was named on the account only for convenience, the creditor can collect the decedent's debt from that account. The same is true with a Totten trust. In that case, it is usually easier for the creditor to establish that all of the funds on deposit came from the person who opened the account.

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  • Can I lawfully be refused access to my retirement account.

    I About 6 months ago I started to fall behind on bills. Credit cards, medical, mortgage, payday loans, a personal loan, student loans, etc, for a total of about $40,000. Prior to falling behind I tried to withdraw money from my retirement accoun...

    David’s Answer

    It sounds like the retirement plan in which you participate does not have a provision that allows employees to borrow against their account prior to reaching retirement age (apparently 55 in your case) or leaving. The HR Department or the Summary Plan Description you should have received could confirm this fact. If that is the case, the advice you have been receiving from your HR Department is correct and you would not have a claim. The relevant law is a federal statute, ERISA. While it gives employees many protections, it doe not require plans to allow pre-retirement borrowing. That is an option, but the employer who is the sponsor of the plan chooses whether or not to include that provision.

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