New York Real Estate Lawyer Blog

In this age of ultra-competitive, make a buck at any price advisers, we have lost our focus upon what a good "fiduciary" should be providing to their real estate, mortgage, estate, insurance and other types of recommendations. What is it that you should expect from your broker or salesman when they sell you that insurance policy, annuity, or mortgage?

Well, it depends upon the type of the relationship, but here is an interesting article that provides a "stop gap" or screening device for consumers to ask their money managers, their attorneys, their mortgage brokers, here in New York and all over the country.

The Bottom Line-- you should expect that the person selling you products has your best interest in mind (not their profits).

I get calls every week from family members concerned that another family member might be abusing a power of attorney issued by an elderly or infirm client. We take these concerned calls very seriously, as did the New York State Legislature, who recently amended the General Obligations Law relating to Powers of Attorney. There are some traps for the unwary signer, however.

New York's new power of attorney law contains language that "automatically" revokes old powers of attorney, unless you specifically state that it does NOT. If you are asked to sign a new Power of Attorney in New York after September 2009, think long and hard about the effect of signing such form. For example, if you are a recording artist, did you sign an agency agreement; a real estate partner, a power to the managing partner; a life insurance recipient, a right to such benefits. If so, you should be careful not to revoke any old powers of attorney.

Bottom Line-- You need to be educated to be smart. Ask your attorney what the effect will be if you sign a Power of Attorney.

The New York State Supreme Court (Shafer, J) reiterates that to sue an attorney for malpractice arising out of alleged negligent will preparation there must be an attorney client relationship before the beneficiaries may sue for legal malpractice in New York. That is, there must be "privity" of contract between the attorney and her client before the client has standing to sue for legal malpractice. For a complete copy of the recent decision Leff v Fulbright & Jaworski, LLP.

Beneficiaries of wills who get less than they think they are due often call us to determine if they have any claims against the attorney. The answer in New York State tends to be who, if anyone, may sue for legal malpractice when attorneys make mistakes planning estates.

As upheld by this Court, New York is one of the few states which recognizes the "doctrine of privity," meaning that, when the decedent died, she may be the only one who could have sued the attorney for screwing up the estate plan. This rule is relaxed in the presence of “fraud,
collusion, malicious acts, or other special circumstances, but one must investigate and carefully investigate the facts to survive dismissal under those cases.

In this case, the Estate was valued at nearly $90 million. Shortly after the Husband's death, his son from a prior marriage made a claim under an old separation agreement with the first wife, wherein the Husband agreed to give "no less than one-half of his probate estate" to the son.

The claim for malpractice alleged that the Husband's New York attorneys failed to consider this agreement when drafting the most recent estate plan. Indeed, the attorneys admitted that they had only discovered the agreement when responding to the son's claim against the Estate.

After settling the case with the Son, the attorneys faced suit by the new Wife contending the attorneys committed legal malpractice by failing to inform the Husband about the existence of the separation agreement.

Not only did Justice Shafer dismiss the claims on the ground that the Wife had no "standing" to sue the attorneys, but that her claims for malpractice were speculative because there was no evidence to suggest that he would have indeed changed his plans had he known of his agreement.

This court finds that the evidence does not indicate that plaintiff was ever involved in a joint estate plan with her husband, or that a relationship approaching 'near privity' with defendants vis-a-vis Leff's estate plan existed such as might make defendants plaintiff's attorneys with regard to Leff's personal estate plan.

This ruling makes sense in this case. If you read the facts, it was clear to the Judge that the Husband and Wife never consulted with the defendant attorneys together, that only the Husband sought their advice on the Estate Planning, and that she had her own attorneys for such planning issues. The Wife repeatedly denied knowing nothing about the estate plans of her Husband, so she had a hard time showing that these lawyers were representing her. Even if she had proven the relationship, there was nothing but speculation that the Husband would have done anything differently.

The bottom line: if the wills are not "reciprocal," Husband and Wife should understand that there is an inherent conflict of interest in having one attorney do both estate plans. As hostile as you may feel, there may be no claim for legal malpractice, but you are welcome to contact our New York Legal Malpractice consultants to discuss the facts.

Why do so few people choose to control the disposition of their own estates after they die? Perhaps you fear death, you procrastinate, you are too lazy to think about your death, or you think that a will is unnecessary or too expensive. Why haven’t you e-mailed your lawyer, called your closing attorney, or actively engaged in executing a will? What is holding you back?

There is a debate among various elder law attorneys and marketing professionals about why New Yorkers and fellow Americans do not see their local attorney to prepare or revise their Last Will and Testament. Did you know that more people die without a will than with one!!

There are two givens in life-- death and taxes. So, why not control what happens in death through the execution and preparation of a Will? Do you really want the New York State Legislature to dictate where your personal belongings go after you die? The truth is that all people in New York State are empowered to execute a Will to override the rules relating to “intestacy” (where your stuff goes if you don’t have a Will).

How can you get a will-- buy a computer program for $3- to $50 dollars, where you input your own information-- You could do that, but are you really getting value out of your own legal advice? Do you really want a computer generated document that bears no relation to an attorney’s advice, consultation, and consideration. Are your heirs not worth having a simple and relatively painless conference with a live attorney and the execution of a document that considers your life and your station?

Unless you have spoken to your attorney, you cannot claim that you and your family do not need some form of simple will.

Bottom line– Get out, hire a local New York State Wills, Estates and Trusts attorney, and consider your mortality for a moment and execute a simple will– your family will be better off.

Key Terms to understand: will, testament, estate planning, trusts, business, marketing, legal ethics