Remote Will Signing and Witnessing in New York During the Coronavirus Pandemic

Almost everyone in New York State and New York City, the epicenter of the Coronavrus pandemic, has been social distancing resulting in the closing of many businesses, including law firms. While the customary visit to a lawyer’s office to sign a will and other estate planning documents may not be possible, lawyers, working from home offices, can still provide their services in preparing and supervising the signing of such documents.

Governor Cuomo’s executive order 202.14 now permits remote witnessing of wills and health care proxies. https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

If you have the ability to video conference with your attorney and your witnesses, you can sign your will, health care proxy and power of attorney from the comfort and safety of your home.

Anyone with a webcam or smartphone need not delay signing these important estate planning documents as there is now no need for you, your witnesses and attorney to be in one office.

Please contact the Law Office Of George H. Dippel at (718) 229-1505 for more information and a free consultation.

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Is Estate Planning Remotely With Your NY Attorney Better Than Using Legal Software?

Many people are considering using legal software to prepare their wills and other legal documents under the mistaken belief that law offices are closed due to the Governor Cuomo’s recent “stay at home” order. In fact, many attorneys are now practicing from home offices and are still able to assist you.

As I explained in my earlier blog post,

http://www.dippellaw.com/wordpress/do-i-need-an-attorney-to-prepare-my-new-york-will/

by using “do it yourself” software you may be inadvertently causing future problems for your loved ones when they need to probate your will. Fortunately this need not be the case. Modern technology allows you to remotely confer with your attorney. Using your smart phone or a webcam attached to your laptop or PC, your attorney can remotely supervise your will signing before witnesses and can even record the proceedings for future use if the need arises.

Your attorney can also notarize your power of attorney pursuant to the Governor’s recent emergency order permitting remote notarization.

https://www.governor.ny.gov/news/no-2027-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

Despite our need to maintain social distancing you can still avail yourself of the services of an experienced attorney in the preparation and supervision of your signing these important estate planning documents.

Please feel free to call us at (718) 229-1505 for a free telephone consultation.

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Estate Planning in New York During the Coronavirus Pandemic

Many people are probably wondering how they can plan their affairs during the coronavirus pandemic while maintaining social distancing. Can I sign a will, heath care proxy, power of attorney and deed without visiting an attorney’s office?

The answer is yes provided you have a printer/scanner and are able to video conference/chat with a smart phone or laptop/PC.

In New York State a will must be signed by the testator (the person who is making the will) before two witnesses who will sign an acknowledgement clause below the testator’s signature. The witnesses should not be beneficiaries under the will. It is common practice for the witnesses to also sign what is commonly referred to as a “self proving” affidavit which while not absolutely necessary, simplifies the probate process.

After a telephone consultation with your attorney, he/she can prepare your will and email a copy to you. You can then print and sign your will before two witnesses. Your attorney can also notarize the self proving affidavit remotely as set forth in the Governor’s order allowing remote notarization.

Refer to my prior blog post regarding the requirements for remote notarization.

Likewise your health care proxy can be prepared and emailed to you which you can also print and sign before two witnesses. A power of attorney prepared by your attorney can also be signed and remotely notarized.

If you have been considering adding someone to the title of your home, the deed and transfer documents can be emailed to you and remotely notarized. You can scan and email PDFs of the signed and notarized documents to your attorney who can then record your deed electronically with the Office of the City Register provided your property is within the counties of Queens, Manhattan, Brooklyn or the Bronx.

Despite our need to maintain social distancing there are ways your attorney can assist you in these matters in a manner that keeps us all safe.

Please feel free to call us at (718) 229-1505 for a free telephone consultation.

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The Law Office of George H. Dippel is Open During the Coronavirus Outbreak

The Law Office of George H. Dippel, in compliance with Governor Andrew Cuomo’s emergency declaration, is now operating from our home office.

While certain activities such as sit down closings, will signings and personal consultations in our office are not possible for the foreseeable future, we are fully prepared to handle many matters remotely by email, fax and teleconferencing. Of course, telephone and email consultations are available as always.

Of special importance to the real estate community is Governor Cuomo’s Executive Order 202.7, temporarily allowing remote notarization of documents.

https://www.governor.ny.gov/news/no-2027-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

This order will allow our office to notarize legal documents such as powers of attorneys, deeds and other real estate transfer documents remotely.

Additionally, our office has the capability to file electronically all deeds within the four counties of New York City, i.e, Queens, Brooklyn, Bronx and Manhattan.

For your convenience, we accept payment of our fees and prepayment of transfer fees by major credit cards and contract down payments by wire transfer.

The Law Office of George H. Dippel is ready to assist you while at the same time observing the social distancing which is vital to defeating Covid-19.

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How do I transfer my New York co-op apartment to my living trust?

Revocable trusts, often called “living trusts” are an increasingly popular choice for people who wish to avoid probate when planning their estates. For a discussion on “living trusts” refer to my blog post: http://www.dippellaw.com/wordpress/how-can-i-avoid-probate-of-a-will-in-new-york/

As I discussed in my above blog post, your assets must be re-titled in your name as trustee of your living trust. In the case of your cooperative apartment, a new stock certificate and proprietary lease must be issued by the cooperative corporation in your name as trustee of your living trust.

As a first step, you must determine whether the cooperative corporation allows ownership of apartments by trusts by contacting the management office of the co-op. If the co-op permits ownership by trusts, they will most likely require that the trust agreement be reviewed by the co-op’s attorneys. The co-op’s attorneys will, in most cases, require that a co-op lien search be done against all parties. Additional documents, such as personal guarantees of the trustee’s obligations under the proprietary lease may need to be signed by you and transfer tax returns will need to be prepared on New York City’s ACRIS system.

After complying with the co-op’s attorney’s requirements, they will schedule a closing (in some cases this can be done by mail unless there is an outstanding co-op loan as explained below) at their office at which time you will surrender the original stock certificate and proprietary lease and sign the various transfer documents. The new stock certificate and lease will then be issued in your name as trustee of your living trust.

If you have an outstanding co-op loan, your lender will be in possession of your stock certificate and lease. In such a case you will need to obtain the permission of your lender as they will need to bring the original stock certificate and proprietary lease to the closing. Accordingly, your inquiry to your lender should be the first step in starting this process.

As you can see, transferring your interest in your cooperative apartment to your living trust is not a trivial matter. You should retain the services of an attorney experienced in estate planning and cooperative apartment transfers to ensure your estate plan is successfully implemented.

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Why do I need title insurance when I purchase my home in New York?

Even first time home buyers have a general awareness that they will need to pay for something called “title insurance” when they close on the purchase of their home. However, few buyers, I would guess, have an understanding of exactly what they are paying for.

Unlike when you purchase a car, there is no certificate of title issued by a government agency, which serves as proof of your ownership rights. You will receive a deed from the seller at the closing, but this, in and of itself, does not give you what real estate attorneys call “marketable title.” Simply put, marketable title establishes you as the owner of the property with all the rights that such ownership entails.

Obtaining marketable title is an involved process. First, the seller, who signs the deed, must themselves have marketable title. To determine that your seller has marketable title, your title company will search the public records and have their attorneys interpret the results. Second, the deed from the seller must be recorded with the City Register. See my blog post for a discussion of why a deed is recorded.

http://www.dippellaw.com/wordpress/i-lost-the-orginal-deed-to-my-home-will-i-have-a-problem-selling-my-home/

As you can see, obtaining title to a home is much more complex then acquiring title to a car. Your attorney will employ a title company which will do this work, for a premium of course. They will determine that your seller has marketable title and insure that your deed is recorded. Your title insurance company will then issue a proposed policy of title insurance, called a “title report” that insures that you have marketable title. Lastly, your attorney will review the title report to make sure the coverage complies with the terms of your contract of sale.

When you purchase your home, be sure you retain an attorney who has experience with title insurance so you can have peace of mind that you have marketable title.

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What taxes will I have to pay when I sell my New York City home?

Clients often ask me about the tax consequences they will face when they sell their New York City  home.  Whether you’re selling  a one or two family house, a cooperative apartment or a condominium unit, you will be subject to several taxes.

First, there are transfer taxes that must be paid at the closing of the sale.  New York State imposes a transfer tax of four dollars per thousand or .4% of the sales price of the home.  New York City imposes its own transfer tax, starting at 1% of the sales price for sales under $500,000.00 and increasing to  1.425% for sales above $500,000.00.

Second, there may be capital gains taxes that may be due when you file your Federal and New York State income taxes for the tax year in which your home was sold.  If your home was your principal residence for two of the five years prior to the sale, you are entitled to a credit of $250,000.00 ($500,000.00 if a married couple are joint owners of the home) against any capital gains.

Capital gain is determined by subtracting your cost basis (generally your original purchase price as adjusted, i.e., by adding cost of capital improvements and closing costs) from your sale price.  If you have inherited your home, you will be entitled to a “step up” in cost basis equal to the fair market value of the home at the time of the death of the prior owner from whom you received the home.

There is an exception as to when income taxes (based on any gain from the sale of your home) are due if you are a non-resident of New York State selling a New York home.  In that case you must file a Non-Resident Real Property Estimated Income Tax Payment Form (Form IT-2663) and pay any estimated New York State income tax at the time of closing.

Finally, if your home ceased being your principal residence for 2 of the past 5 years prior to closing, you can defer the payment of gains tax if you purchase replacement property through the use of a 1031 exchange.

Tax laws are complex.  When you sell your home, be sure to employ professionals familiar with the sale of New York City property to avoid being surprised by an unexpected tax bill.

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Do I need to pay to obtain a copy of the deed to my home in New York City?

A client of mine recently received a letter from a company offering to obtain for her, for a fee, a copy of the newly recorded deed to her house.  My client had previously asked me to add her son as a joint owner of her home which involved my preparing and recording the deed in question with the City Register of Queens County.

Mailings from companies offering to obtain copies of documents for a fee are not uncommon.  Companies, such as the one soliciting my client, routinely check local property recording offices and offer their document retrieval services to homeowners who have had recently recorded deeds. Apparently the recording of my client’s deed resulted in her receiving  this offer.

My client called me upon receiving the letter and asked me whether she needed to pay this company to obtain a copy of her recorded deed. I explained to my client that once a deed is recorded, that is, incorporated into the public land records, it can be viewed by the public, without charge.  A copy of the recorded deed can be viewed on-line using New York City’s Automated City Registers Information System, commonly referred to as ACRIS. http://a836-acris.nyc.gov/CP/ The deed can be downloaded as a PDF file and then printed.

As I discussed in an earlier post, http://www.dippellaw.com/wordpress/i-lost-the-orginal-deed-to-my-home-will-i-have-a-problem-selling-my-home/once a deed is recorded, you do not need the original deed or even a copy of the deed in order to sell or mortgage your home. If you do want a copy of your deed, there is no reason to pay someone to obtain it.

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How do I add someone to the deed of my New York home?

There are many reasons you may want to add someone to the title of your home.  You may have just gotten married or re-married and now wish to add your new spouse as a joint owner.  Or you may want to add an adult child to your title for estate planning purposes.

Whatever the reason,  you will need to retain an attorney, experienced in real estate, to draft  a new deed conveying  (i.e., transferring) your home  to yourself and the person you wish to add to your title. In addition to the deed, your attorney will also need to prepare transfer tax returns. While there is no transfer tax due  on conveyances which are considered gifts, (i.e. no money given for the conveyance) the returns must still be prepared and filed with the county clerk, or in the case of New York City property, the City Register, when the deed is recorded.

How your new deed is drafted will determine your type of joint ownership. Depending on the language used in your deed, you and the person you have added to your title can own the home as either joint tenants with rights of survivorship, tenants in common or tenants by the entirety. Your attorney can advise you as to which type of joint ownership is appropriate in your case.

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Can I apply for a larger mortgage than in my contract to buy my NY home?

Most people will obtain financing when purchasing their home, whether it’s a co-op, condominium or a one or two-family home.  In such a case the contract of sale will contain a provision making the sale contingent on the purchaser obtaining a loan in a certain amount.  If the purchaser is turned down by the lending institution they can cancel the contract and receive the return of their down payment.

In order to obtain the protection afforded by this clause the buyer must strictly adhere to it’s provisions, i.e., they must only apply for a loan in the amount stated in the clause (or a lesser amount); they must make a “good faith” application to a lending institution and they must abide by the time frame given to obtain such a loan.

In answer to the question I pose, if a buyer applies for a loan greater than the amount set forth in the clause and is then denied a loan, they will have forfeited the protection afforded by the clause and will not be able to cancel the contract.  If they have no alternative source of funds to consummate the purchase they will be in default under the terms of the contract and more than likely lose their down payment.

Of course, if the buyer is approved for a loan greater than set forth in the contract, no harm, no foul.  I, however, would never advise a client to take such a risk as there may be reasons beyond their control that may result in a loan denial.  For instance, when determining whether to approve a loan to purchase a cooperative apartment or condominium unit, the lender will review the condo and co-op project as well as the buyer’s creditworthiness. While the buyer may have sufficient income and sterling credit, they may still be denied a loan based on the condominium’s or cooperative apartment corporation’s financial situation.

The loan contingency in a contract to purchase your home affords protection against your being denied a loan.  Make sure you retain an experienced real estate attorney who will make sure you comply with its provisions so as not to jeopardize your substantial down payment.

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