Attention NY Legal Professionals: Smoother Sailing Ahead for Obtaining Sworn Statements
By Gabrielle Wasenius In New York, attorneys have traditionally been permitted to submit affirmations to courts instead of affidavits, the law controlling this practice, CPLR 2106, removed the prior mandate for attorneys to acquire a notary public’s oath before presenting their sworn statements. The CPLR drafters believed that attorneys’ professional responsibilities and the potential for prosecution for false statements were adequate safeguards against dishonesty, thus eliminating the necessity for a notary public. Additionally, the law allowed specific medical professionals to affirm the veracity of their own statements. In 2014, CPLR 2106 was amended to permit affirmations instead of affidavits from individuals located outside the United States, Puerto Rico, the United States Virgin Islands, or any territory under U.S. jurisdiction. This change sometimes made obtaining a statement from someone overseas than from a person in a nearby state easier. On October 25, 2023, Governor Kathy Hochul signed two laws amending CPLR Rule 2106. Effective immediately, A06065 / S02997 expanded the scope of who can make affirmations in civil actions to include all licensed healthcare professionals. Effective January 1, 2024, A05772 and S05162 allowed affirmations in lieu of affidavits to be made by any person in a civil action. The new law applies to both new legal actions initiated on or after January 1, 2024, and to actions that are still pending as of the effective dates. Now, a statement made by any individual and affirmed by that individual as true under penalty of perjury can be used in a legal action in New York as a substitute for an affidavit, with the same legal weight. The affirmation should contain this language: I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. (Signature) Keep in mind, the new CPLR 2106 does not eliminate the need for notarized affidavits and affirmations entirely. Notarization will still be required in cases where the law mandates the declarant to verify their identity or the document’s authenticity. Nonetheless, this amendment modernizes New York law, aligning it with practices in more than 20 other states. It will reduce the burden on litigants, witnesses, clerks, and courts. Moreover, it helps to overcome logistical and financial barriers, like trying to obtain a notarized document from a non-New York heir who is party to a New York action. Hopefully, this change reflects New York’s dedication to adapting its legal system to meet contemporary needs and challenges.
Dueling Executors
Frequently, I answer questions on Avvo about estate planning and related topics. A little while ago, someone asked a question about the validity of a will that was “poorly written” and disputes between co-executors. This article expands on that answer. A will is considered invalid if its \”formalities\” are not followed. The formalities are that the will be signed by 2 credible witnesses while in the presence of a legally sound adult testator (person who makes the will) when he or she signed the will. So, Skyping or video signings are not allowed, at least in Illinois. In addition to being credible, witnesses must also be adults and “disinterested.” A disinterested witness is one who is not a beneficiary, either primary or contingent, under the will. If a potential beneficiary or the spouse of a potential beneficiary acts as a witness, then 3 witnesses should be used. Sometimes it is difficult to equally divide estate assets to an exact amount, which is why attorneys use \”substantially equal\” or \”as equal as possible\” with respect to distribution language. Presuming a disputing co-executor has a copy of the will, the will’s terms should define how disputes between co-executors should be handled. If the will is silent on that issue, then a case of breach of fiduciary duty may exist because an executor, even if also a beneficiary, has an obligation to all of the beneficiaries, not just himself of herself. However, Illinois courts have started looking very closely at the terms of the instrument and the facts surrounding disputes. Additionally, courts are interpreting wills and trusts from a contractual perspective, going so far as to state one executor did not have a fiduciary duty. Thus, breach of fiduciary duty may now be a very difficult claim to successfully make. A will is typically invalidated on grounds of undue influence, i.e., someone took advantage of the testator’s mindset while he or she was making the will, or other similar grounds. A validly executed but poorly written will is not a reason to invalidate the will as a whole. Even if a provision of a will is deemed invalid, a court will likely strike the provision as invalid but maintain the validity of the rest of the instrument. Feel free to check out my Avvo answers on our website.
Logging Out of Your Digital Estate Plan
By now, you’ve undoubtedly heard about the wisdom of incorporating a “digital asset plan” in your estate plan. If you haven’t, feel free to visit my introductory article on the topic. However, if you are familiar with the concept, then this article will shed more light on the subject. Below you’ll find what can happen to a loved one’s digital account (email, Facebook, Twitter, etc.) when he or she passes away. Facebook Facebook has a “family-and-friend-friendly” policy. Surviving loved ones have 2 choices: memorialize the account or have it deleted. If a Facebook account is memorialized, which can be requested by anyone, then the account is somewhat frozen. Confirmed friends can post to the account and view it on their news feeds, but no one can access or change the account. Proven immediate family members or the executor are the only persons who can request the account’s deletion and must provide proof of the relationship through certified vital records or court documents. LinkedIn Ironically, LinkedIn, a professional social media network, has a somewhat more relaxed approach than Facebook. If LinkedIn is notified that a person has died, LinkedIn will close the account and remove the profile. Notification must provide, the member’s name, company where the member worked at most recently, the relationship between the person notifying LinkedIn and the member, a link to the member’s profile, and the member’s email address. Odd is the fact that LinkedIn doesn’t require proof of a relationship or death certificate. It seems that an unresponsive email is sufficient evidence. But to the poor individual who is only on vacation and friends decided to pull a prank, it might not be so sufficient. Hmmm…. Twitter Despite its brevity and awesomeness, Twitter is even more strict than Facebook. The only request observed is one to delete the account. If a loved one’s account is to be deleted, Twitter requires the following information from an immediate family member or executor: username and of the deceased user’s Twitter account, copy of the deceased’s death certificate, copy of the family member or executor’s government-issued identification, AND a signed statement providing the requester’s first and last name, email address, current contact information, relationship to the deceased or their estate, action requested, and brief description detailing how this account belongs to the deceased. Twitter denies access to everyone, regardless of relationship or fiduciary capacity; there is no tweeting after death. Instagram It looks like Instagram does its own investigation into a decedent\’s death. The platform simply asks requesters to email its staff about deceased users and then the folks at Instagram will let the requester know if any further information is available. Does anyone besides me thinks this is a little creepy? Gmail This is Google, so while access may be granted, a process will be required. First, the requester must provide Google with his or her full name, physical mailing address, email address, photocopy of a government-issued ID, the Gmail address of the deceased, and the death certificate of the deceased. Now, going through step 1 doesn’t guarantee access to the deceased’s email. Google may require the requester to take a second step 2: providing a court order or other materials. Hotmail Hotmail considers you dead if your account is inactive for 12 months. It will delete contents after 9 months of inactivity and delete the account after 12 months of inactivity. Plus, it’s unlikely that if you’re alive and want your contents back, that you’ll be able to retrieve them. Hotmail is a Microsoft platform, so it follows Microsoft’s “next of kin” process. To prove that you are the legal next of kin and that the account holder is deceased – or incapacitated – Microsoft requires: an official death certificate of the user; if the user is incapacitated, a certified document signed by a medical professional in charge of caring for the user (oops! HIPAA violation warning for doctors) or a signed court document providing that the requester is an agent with power of attorney or a conservator. Documents for decedents from a court must show that the requester is a trustee or an executor. And still further proof is needed to prove kinship: marriage certificate showing requester is surviving spouse (Query: What if spouse divorced and hates surviving family members?); signed power of attorney documents; copy of a will or trust (read privacy issues); a birth certificate for the user showing parentage of the requester; or guardianship documents; and a photocopy of the requester’s government-issued identification. Once all information is provided, the requester still does not gain access to the account but will instead receive a DVD of all the account\’s contents, including emails, attachments, address book, and Messenger contact list. The requester can ask for the account then to be closed. Lesson: Logging on to the digital world may be easy but permanently logging out isn’t. Hat tip: My intern, Lesley Gwam.
Essential Estate Administration Steps When You\’re Responsible for Saying Farewell
Some of my readers may know that I recently lost my father. As an estate planner, yes, I made sure a number of items were in order. However, as a daughter to a fiercely independent and private individual, I was compelled to respect certain boundaries. Another good colleague and fellow author, Lisa Lilly, who also lost her father, recently reminded me in her blog that it’s never too early to share important knowledge. So below are several tips on the very beginning activities of “estate administration.” And while I intended to write this article before my father made his transition and a little later in the year when the sky was less blue and Lake Michigan waters were much cooler, there really is no time like the present… Much of this can be applied irrespective of your relationship but for precision, this article makes the following assumptions: “The conversation” took place and there were no unresolved issues; consequently, there’s no family feud. Your loved one had a primary care physician, nurse, or hospice caregiver. You will be the one to say the final farewell. The Steps Make sure you have a couple of very close family members or friends on call for “that day,” so you will have support around you. Phone the doctor or the hospice; DO NOT phone 911 or the police. Prepare to spend a few hours waiting for the doctor or nurse to arrive to make the final pronouncement. While waiting, do what you feel you need to do. DO NOT listen to directions from other friends and family unless you want to. Be prepared to answer lots of questions about: your relationship to the departed; who found the departed, when, and how; what funeral home should be notified, even if cremation or anatomical donation are the instructions; your complete contact information. And don\’t take it personally. Be prepared to have your loved one physically removed from you permanently; this is why it’s good to have someone else with you, the emotional effect on you cannot be predicted. Be prepared to emote or manifest emotion somehow. DO NOT access any financial accounts; your loved one wouldn’t want you arrested for fraud. Contact everyone who knew the dearly departed, including church, community, and social groups. Get a couple of family members or close friends to help. Depending on the global reach of your loved one and his or her final wishes, start to think about a memorial service date that is soon or later, to allow for friends and family to make reasonable travel arrangements. Visit the funeral home asap to order several death certificates. You don’t have to start on the arrangements then. DO NOT BE PRESSURED into making decisions like date and time until you’re ready. Make sure you have all keys to everything – the house, apartment, car, safe deposit box, storage, and anything else. And LOCK UP. Complete address forwarding cards and forward the mail to you. If needed to pay for services, contact the insurance company. If not needed, then wait until the services are concluded to handle all financial matters. Write an obituary and send it to the appropriate publications: neighborhood or city newspaper and alumni magazines. Delegate. Delegate. Delegate. Carve out time for yourself. Move forward, genuinely, gently, one day at a time.
4 Estate Planning Facts Everyone Should Know
1. You have an estate and a plan even if you’ve not done anything. The answer to how this is possible is found in the definition of “estate” and the law – at least for the state of Illinois. Your estate is everything you own – tangible and intangible. It includes retirement benefits, debts owed to you, your bicycle, your bodily tissues and organs, whatever may be in your bank accounts, and whatever remains of your coming paycheck after obligations are paid. Probate assets of those who die without a plan or a will in Illinois will be distributed according to the laws of intestacy per the Illinois Probate Act of 1975 as amended. Accordingly, debts, your bike, your bank accounts, and your paycheck will go to who the laws of intestacy and the court decides. So, regardless of what you possess and your actions, you have an estate plan. 2. Your estate plan, even the one you don\’t know about, is in effect during your lifetime. Documents you sign at medical and dental treatment facilities before being treated, and even some sporting events, typically involve you implicitly designating your “next of kin” to act on your behalf if you became incapacitated. Sometimes, this isn’t who you think it is. Since you’re going to sign these forms anyway, wouldn’t you rather make an actual decision before the dental cleaning? 3. Family and friends fight over stuff and the fight can become war. Love is love until death and then it becomes war. Folks will fight about could be grandma’s old cookie jar, gold coins, or memorial arrangements. Nevertheless, once a battle ensues, the only real winners are the litigators; they get most of the cookies. Considerations for this fact include: apathy for one\’s family; family harmony; good karma; and increasing the wealth of trial attorneys.* 4. The most important decision you can make in estate planning is not what to give away or who to give it to, but who will manage it or give it away for you. Even if you don’t interact with a certain individual regularly, they protect the cookie jar. These individuals, called “fiduciaries,” include personal bankers, financial planners and advisors, accountants, lawyers, trustees, agents under powers of attorney, guardians, and executors or personal representatives. A large part of guardianship and estate litigation involves the “breach of fiduciary duty,” where the fiduciary has dipped his or her hand into the cookie jar. Sometimes the fiduciary is a family member; sometimes a long-time, trusted friend and advisor; and sometimes not such a long-time friend but is still trusted. Thus, even if you’re not at the point of naming an executor, perhaps you should carefully consider who is going to step into your shoes and manage your finances if you become seriously ill or just go for an annual check-up; then designate someone…in writing. A thoughtful and appropriate designee may prevent abuse, breach, litigation, and possibly war. * Some of my dearest friends are trial attorneys.
A Fiduciary\’s Lesson on IRS Pre-emption
On April 11, 2012, the Second District Appellate Court of Illinois filed an Opinion emphasizing the importance of a fiduciary’s role in trust and estate planning. As a fiduciary, an executor or trustee typically has the responsibility to ensure items such as the estate’s value and the relevant taxes are calculated correctly and, subsequently, paid. Accordingly, it is important for individuals to select appropriate fiduciaries. It is equally important for those approached to be fiduciaries to understand the scope of duties involved and the consequences if those duties are not performed properly. Case on point: People of Illinois v. Kole, No. 09-L-892. The Lay of the Land In 1993, Anthony F. Crespo named Julius Kole as executor and successor trustee of the Anthony F. Crespo Living Trust. Crespo died in 2002 and Kole paid $127,000 in Illinois estate taxes. Kole also filed a request for an extension to file the Illinois estate tax return, which was granted. Six months later, he filed the Illinois return reporting an approximate $81,000 estate tax liability. The Illinois Attorney General’s office received the return and issued a “Certificate of Discharge and Determination of Tax,” stating that, based on the information provided, the estate taxes were fully paid and, therefore, the estate was clear of any liens from the State. The Certificate of Discharge also relieved Kole from any personal estate tax liability for the Crespo estate. However, an IRS audit of the federal estate tax return reported in 2006 a revised value of the estate, increasing the value from more than $2.1M to $4.4M. This, of course, increased the Illinois state tax liability. Consequently, Illinois sued Kole, personally, seeking the additional estate tax owed plus penalties and interest, amounting to more than $300,000. The Arguments Kole first argued that the plain language of the Certificate of Discharge had relieved him of the obligation to pay additional taxes. The State replied that the Certificate of Discharge was routinely issued upon initial filings, which were based on the information provided at the time. So the initial issuance did not negate the need for supplemental filings if new information resulted in additional taxes owed. Kole’s response to the State, however, was enough to cause this reader to question her eyesight: “[Kole] admitted that the estate never paid any additional tax to Illinois or filed a supplemental return, but he then objected on hearsay grounds to the contents of the IRS Report.” Commentary and Conclusion To use the common vernacular, “Hearsay? Really?” Kole’s argument about the Certificate of Discharge’s plain language meaning at least had some merit, but arguing that an IRS Audit Report is hearsay was quite colorable. Even non-lawyers have watched enough Law & Order to learn the public records and business records hearsay exceptions. The trial court, however, agreed with Kole’s plain language argument. The Illinois AG appealed and the Appellate Court reversed the trial court’s decision (see Lesson #2, infra). Lessons Choose a fiduciary who will obtain a correct valuation and pay the appropriate taxes due – whenever they\’re due; A Certificate of Discharge isn\’t really final until the IRS says so; and Take great care in accepting a fiduciary role.
Why There\’s a \”Trust\” in Trustee, Part 2
In Part 1 of this series, I discussed why one should be careful in selecting a trustee. Family members are often considered the most trustworthy with respect to family matters, so people typically select them as trustees. However, this endearing gesture can cause serious problems later: Trust assets could be inadvertently wiped out. A trustee is usually responsible for managing the trust assets. If the trust is significant, the trustee should either have the required financial investment background or the ability to wisely choose someone with the needed background to act as the trust investment advisor. If the trustee is not well informed about investment matters relevant to the trust assets and does not employ someone who is, then the trust funds could dissipate leaving the terms of the trust unfulfilled, and probably one or more displeased beneficiaries. This last point is particularly important if the trust isn’t large, but the beneficiaries depend on its income for health and educational support, for example. Valid claims could go unanswered; or a trust claim could be ignored. The trustee is responsible for responding to or initiating litigation on behalf of the trust. So if a long lost family member who would have been provided for had their whereabouts been known, emerges claiming they should receive under the trust, the trustee should properly address that claim. If the trustee is a family member, however, the problem becomes one of bias against that claim because a valid claim could dilute the current beneficiaries’ shares, possibly including the trustee’s share. Another problem is that it takes time to respond to these claims, time that a family member may not have. Equally important is a trust may have a claim that needs to be litigated. But, if the trustee does not recognize the claim issue, a potential financial award for the beneficiaries may go unnoticed. Co-trustees don’t always agree. While the grantor may have gotten along well with both individuals, when it comes time to make a distribution decision or another decision involving the trust, the co-trustees may not see eye-to-eye and both could have valid perspectives. This type of disagreement starts many long-term family arguments resulting in costly court battles. If nothing else, by choosing a corporate fiduciary, the family will be at peace with each other and at war with someone else. Trust administration responsibilities are time consuming and numerous. The following is an incomplete list of trustee duties: Distributing beneficiary shares Providing a regular accounting to beneficiaries Paying debts, taxes, fees and expenses associated with the trust administration Giving notice to guardians or legal representatives of beneficiaries who are minors or incapacitated Executing documents required for trust administration Settling claims against the trust, not just from possible beneficiaries but from estate creditors Buying insurance for trust assets Perhaps now you’re thinking that a Last Will and Testament may circumvent this “trustee” matter, but that\’s not necessarily true. A Will’s executor or “personal representative” often has the same responsibilities as a trustee. So, establishing a Will not only requires delegation to the executor some of the responsibilities above, but in Illinois, it also entails more costs and more time because of probate. Therefore, it is critical to resist the urge to select a family member as a trustee – or executor – without first giving the decision the thought and discussion it deserves.