Brendan James Gilbert’s Answers

Brendan James Gilbert

Buffalo Estate Planning Attorney.

Contributor Level 9
  1. Living will do I need a lawyer or can I do it on my own

    Answered about 2 years ago.

    1. Roman Aminov
    2. Brendan James Gilbert
    3. Fallon Gomez
    4. Adam S. Bernick
    5. James P. Frederick
    5 lawyer answers

    So long as you're sure you're aware what exactly a living will is (Attorney Aminov's link is spot on for this), it can be done by yourself. Estate planning counsel may have a greater ability to make sure your wishes are properly written and honored, and ensure no ambiguity exists. A living will does not have the formality requirements that a last will and testament has in New York. With the last will, the execution ceremony is more important than the document itself, and no lay person...

    11 lawyers agreed with this answer

  2. I recently filed for Small Estate Probate due to the death of my father. Since then I learned that my father has real property.

    Answered about 2 years ago.

    1. James D. Kiley
    2. Brendan James Gilbert
    3. Michael C. Wild
    4. James P. Frederick
    4 lawyer answers

    Firstly, you are administrator of your dad's estate. This means that you have fiduciary duties to the estate and your brother if he is a beneficiary of the estate, and potential personal liability to creditors of the estate who could make you put any estate monies you've given yourself back in. If you put that check for proceeds directly into your account, you could be in some trouble right out of the gate. If you are trying to administrate the estate on your own, I would strongly recommend...

    7 lawyers agreed with this answer

  3. Can I transfer my rental property into my LLC's name if I owe on the Mtge,without creating a new loan (Warranty deed,Trust deed?

    Answered over 1 year ago.

    1. Cheryl Rivera Smith
    2. Brendan James Gilbert
    3. William Daniel Davis
    3 lawyer answers

    The technical answer to your question is yes. However, doing so will undoubtedly trigger a due on sale clause requiring immediate payment of the entire mortgage. Depending on your risk profile, the protection you seek may be worth the need to refinance the loan with a new mortgage with the grantee LLC.

    7 lawyers agreed with this answer

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  4. Are there any guidelines for attorneys fees in New York? What about when probating an estate?

    Answered about 2 years ago.

    1. Brendan James Gilbert
    2. Joseph Michael Pankowski Jr
    3. Michael S. Haber
    4. Jonathan Craig Reed
    4 lawyer answers

    There are no boundaries set by statute or regulation, but as attorney Pankowski notes the Surrogate has the power to fix attorneys' fees and generally does so based on an affidavit of counsel indicating the hours spent and their hourly rate. Depending on the complexity of the estate, a wide variation is to be expected. Generally, counsel fees can be anticipated to be between 3-8% of the estate value depending on complexity, litigation, and whether the executor/administrator, beneficiaries,...

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  5. Can a landlord knowingly enter into a lease with a business that violates land use code?

    Answered about 2 years ago.

    1. Elizabeth Rankin Powell
    2. Thuong-Tri Nguyen
    3. Brendan James Gilbert
    3 lawyer answers

    It is likely legal for a landlord to enter into a lease with you for it, but the landlord's knowledge may make a court unwilling to enforce the lease. The lease may have become voidable in that you and the landlord have entered an agreement for you to perform an illegal action (the prohibited use). As for whether you can break out of your lease, it is a matter of your current lease's text. You might already be in default under it for operating with a prohibited use.

    6 lawyers agreed with this answer

  6. Can i put a lien on a life estate? he does not own the house but has a life estate

    Answered about 2 years ago.

    1. Brendan James Gilbert
    2. Michael Leo Potter
    2 lawyer answers

    I respectfully disagree with attorney Potter--presuming that this debtor is a life tenant (i.e. the person who has a right to possess the property for the duration of their life), that life tenant does have an ownership interest and a lien can be filed against that interest. The "right to live there" is more akin to a lease, which isn't applicable here. The interesting legal question is whether a lien established by the debts of a life tenant and not related to the property (like a tax lien)...

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  7. Does a will need to be made for life insurance beneficiary?

    Answered over 1 year ago.

    1. Christian K. Lassen II
    2. Roman Aminov
    3. Brendan James Gilbert
    4. John P Corrigan
    4 lawyer answers

    I'd recommend a will to answer the question you're not asking: what if both of you die at the same time? States vary regarding their distribution without a will laws. In certain states, your spouse would get roughly half of the estate with the rest going to the children that you are the biological parent of. Wills can ensure that no matter what state you're in, you control what happens.

    4 lawyers agreed with this answer

  8. In NY who protects the assets of an estate like personal property until the executor is officially appointed?

    Answered over 1 year ago.

    1. Brendan James Gilbert
    2. Steven M Zelinger
    3. Paul Karl Siepmann
    4. John P Corrigan
    4 lawyer answers

    Steven's right--when the executor's appointed, they're responsible for getting the personal property together, and they can use the law on behalf of the estate to try to get the personal property back (or the value of it), or consider the takings as offsets against benefits paid to the person taking the property if they're a beneficiary.

    4 lawyers agreed with this answer

  9. Is it feasible to protect asset in this way?

    Answered about 2 years ago.

    1. Michael Leo Potter
    2. Douglass S Lodmell
    3. Kelly Scott Davis
    4. Brendan James Gilbert
    4 lawyer answers

    I wanted to emphasize what attorney Lodmell said--legitimate asset protection is income tax neutral. (Although part of a plan may include capital gains tax advantaged transactions--uch as a 1031 exchange--people that pitch asset protection for income tax benefits should be pitched in the bin.) There are methods to part with ownership but not control, but "give" (implying a gift, implying a transfer for less than fair consideration) is not something you want to do if you have existing...

    4 lawyers agreed with this answer

  10. On an estate trust is it usually the case that trustees may charge the trust for lawyers that represent them on any action?

    Answered over 1 year ago.

    1. Brendan James Gilbert
    2. Michael Leo Potter
    3. Joseph Franklin Pippen Jr.
    3 lawyer answers

    I've drafted trusts that go either way, and there is no usual arrangement to my knowledge.

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