Friday, October 22, 2010

Adding a Codicil to your Will

Once people already have their Wills in place, they often find themselves in a position where they want to change or add a particular provision. The easiest way to go about adding a new stipulation to one's Will is to draft a Codicil.

A Codicil is defined as a supplement or an addition to a Will. It may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions that are present in an existing Will. By adding a Codicil, it does not revoke the existing Will in its entirety but rather amends it to reflect the desired changes and modifications.

The execution of a Codicil in New York State is implemented the exact same way as the Will itself. Often times people will attempt to have a Codicil drafted and then notarized. This is not valid execution. To properly execute a Will and Codicil in the state of New York, the following requirements must be met:

1. The testator (person who makes the Will) must be at least 18

2. The Will and/or Codicil must be signed by the testator

3. Testator's signature must be at the end of the Will/Codicil

4. Testator must "publish" the Will/codicil by declaring the document to be their last Will & Testament

5. There must be at least 2 witnesses attesting to testator's signature of the Will/Codicil

6. The execution ceremony must be completed within 30 days, which begins to toll when the first witness signs the document. This ceremony consists of getting all the signatures completed and having the testator attest and acknowledge that he/she is implementing their Will/Codicil.

7. Testator must sign or acknowledge signature of Will/Codicil in the presence of each witness.

New York doesn't require that the witnesses sign in each other's presence, nor does it require that they sign in the testator's presence. However, the testator must sign or acknowledge his/her signature in the presence of the witnesses.

Bottom line, in New York, if one wants to amend their Will without drastically altering its overall premise, the most efficient way to go about doing this is to execute a Codicil. When doing so, be sure to follow the proper steps and procedure or it will be invalid and the original executed Will will take precedent without having your intended amendments included therein.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Wednesday, October 13, 2010

Cats are natural born lawyers

Growing up as a child, I was a dog person. I had a dog at a young age and my dog, like most dogs, wore his emotions on his sleeve. He would go crazy and wag his tail feverishly when I came home from school and was never one to shy away from affection.

As an adult, my wife and I decided to get two baby kittens to start our family, so to speak. Having never owned a cat, I went about treating them just like I did with my old faithful, loyal dog, Rusty. I was in a world of shock when my cats would run away every time I came near them. When I picked them up, they whimpered and did everything in their power to get out of my clutches. My wife, who grew up with cats as pets, had no trouble in wrangling the kitten’s affections and as a whole, they took to her a lot better than me. I asked my wife why this was happening and she simply told me that I needed to let the cats come to me on their own terms. I then decided to take this advice and sure enough, as I calmed my approach to them down and allowed them their space, they eventually warmed up to me.

This same approach works wonders in dealing with clients and people as a whole. More often than not, when two or more individuals have a dispute, their first instinct is to get their point across at all costs without really allowing the other person or persons into the conversation. This was how I approached my cats, who would quickly retreat due to the overwhelming nature of my affection. This is comparable to real life disputes when people feel attacked and overwhelmed, they often do not respond in a productive manner and usually the debate escalates without much progress.

However, if one were to go into a legal dispute, or any type of conflict, with the attitude of allowing the other person to express their point of view without jumping all over them, the probability of a successful resolution is greater. In other words, sometimes you need to let the other person “come to you” and once they do, you will likely gain, to some degree, their “affections.”

Again, all this is common sense, but that doesn’t mean people often follow it. Sometimes taking a step back will get you a lot further in the long run.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Friday, October 1, 2010

The role of a Law Guardian

People often hear the term Law Guardian and are immediately confused as to what that role entails. The role of a Law Guardian in Family Court is to act as the attorney for the child or children involved and to look out for their best interests. In New York, the term Law Guardian has been replaced by “Attorney for the Child(ren)” in what I assume is an attempt to avoid said confusion as to what the job entails. However, much like die hard defunct names such as “The Pepsi Arena” and “World Wresting Federation,” the Law Guardian moniker will in all likelihood be used for quite some time.

In every case that is filed in Family Court, no matter how adverse or amicable, the children involved automatically get assigned a Law Guardian. This often confuses and concerns parents, especially when the parties are going to court just to amend an order or amicably change certain mutually agreed upon arrangements. In instances such as this, there is no need to be alarmed because, as stated, when filing in Family Court, an Attorney for the Child is attached to the case. This is so the child has their own separate legal advocate that is not potentially biased toward the mother, father, or other interested parties.

The Law Guardian, although not officially a mediator, often acts as a go between among the parties in an attempt to come to some sort of resolution that is in the best interest of the children. A Law Guardian will make it very clear at the onset of the case that they are the child’s lawyer, not mom or dad’s. Anything the mother, father, or other interested parties say to the Law Guardian may be used against them in court. Anything that is discussed between the children and the Law Guardian is to be confidential and does not have to be disclosed to the mother, father, or interested parties.

Once the case is set down for a first appearance in Family Court, the Law Guardian is assigned to the applicable children. The Attorney for the Children often sends a letter to all parties involved introducing themselves. It is required that the Law Guardian meets with the children for an initial interview. This is required regardless of the age of the child. Clearly, a child 6 months old will not be able to carry on a conversation like a 16 year old would, but never the less, an initial interview is to be conducted. These interviews are typically conducted with age appropriate dialogue and are usually not that invasive to the child. As a Law Guardian myself, I try to make the client interviews as comfortable as possible for the children, as they are often understandably upset and uncomfortable about their current family circumstances.

The parties then meet at Family Court for a first appearance and the case is heard before the judge. The children, unless special circumstances exist, do not appear in the courtroom. The Law Guardian appears and advocates on their behalf.

For further information regarding Family Court proceedings, contact the Family Court located in the county in which your children reside.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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