Right of Survivorship in Real Property

The right of survivorship in real property is perhaps one of the most important estate planning tools.

For many people, the home is not only their most valuable asset, but it is the one asset that they rely on to secure their own future and those of their children. Owning property as joint tenants with right of survivorship, or JTWROS, assures a quick and seamless passage of that property upon the death of one   of the joint tenants, or owners.

There are several ways to own real property and each state has variations of each particular form. The three most common are: tenants in common, joint tenants with right of survivorship and tenants by the entirety, or as spouses.  Each has their own very important distinctions and characteristics.right of survivorship, JTWROS, joint tenants

Tenants in Common – Real property owned as tenants in common, TIC, is owned by each individual property owner is separate shares, i.e. 50% and 50%.  The key attribute of TIC owned real property is that if one owner dies, that owner’s share in the TIC property passes into his or her estate and must pass through probate to be transferred to its successor owner.  Many who own property with another person who is not a member of their family prefer to own real property as TIC so that they can pass on their share to family members upon their death.  The deed to a property owned as TIC will define the owners as, “John Doe and Jane Doe.”  There will be no other description on the deed.

 

Joint Tenants with Right of Survivorship, JTWROS – The most significant and powerful characteristic of owning property with a right of survivorship is that the joint owners both own the entirety of the property at the same time; therefore there is nothing to pas upon the death of one joint owner.  The property does not go through a lengthy and costly probate process.  One catch is that property which passes automatically may not be eligible for more sophisticated tax planning which could save a surviving spouse, for instance, in estate tax upon the death of the second spouse.  For individuals whose assets do not meet the state or federal estate tax limits, JTWROS ownership can be an extremely beneficial and effective means of transferring assets upon death.  The deed to a property owned as JTWROS will define the owners as, “John Doe and Jane Doe as joint tenants with right of survivorship,” or “John Doe and Jane Doe, JTWROS.”

Tenants by the Entirety, as spouses – This type of real property ownership is reserved for legal spouses and possesses the same protections that JTWROS ownership provides, with one distinct benefit.  No creditor of one spouse may attach their interest to the other spouse’s ownership share in the home they own as tenants by the entirety.  This is a critical protection mechanism to honor and provide for spouses owning property together. The deed to a property owned as Tenants by the Entirety will define the owners as, “John Doe and Jane Doe as husband and wife,” or “John Doe and Jane Doe, as spouses.”

It is critical for an attorney to review any existing deed that you may have to ensure exactly what type of real property ownership that you have. Your entire estate plan may be dependent on the characterization of your real property ownership.  For more information about real property ownership, and more, contact Anthony M. Brown at Anthony at timeforfamilies.com or visit www.timeforfamilies.com today or email Anthony at anthony@timeforfamilies.com.

in Estate Planning / Featured Articles / Services  by Anthony Brown 1 comments

Co-Parenting – One More Option For Creating Your Family

Co-Parenting is fast becoming an alternative to adoption, surrogacy and IVF for many in the LGBT community who want to have a family on their terms.

Co-parenting is quickly becoming a viable option for gay and lesbian individuals who want to be parents. Co-parenting also requires an incredible amount of care and preparation to ensure that all parties, and particularly the children, are protected and acknowledged legally.

Co-Parenting Defined

In a co-parenting relationship, two individuals who are not romantically involved come together for the purpose of having a child and parenting that child with a mother and a father. The key to understanding co-parenting is in the intention of the mother and father.  Many enter into co-parenting relationships because they do not want to be single parents and acknowledge their desire for their children to have a maternal and a paternal influence.co-parenting

Protecting a Co-Parenting Relationship: The Co-Parenting Agreement

Before entering into a co-parenting relationship, it is crucial to understand the legalities of parenting, as well as the potential pitfalls that may accompany this nontraditional parenting form. First, by becoming a parent, the mother and the father have a fiduciary responsibility to that child, and if the co-parenting arrangement dissolves, to one another in a child support proceeding.  This means that if both parties are not contributing financially to the child’s upbringing, either parent may bring a support action in family court.

Spelling out these financial terms, as well as visitation schedules, educational and religious training is the purview of the co-parenting agreement. The mother and the father will both have separate legal representation in the drafting and execution of a co-parenting agreement and the process of creating a comprehensive agreement will be very helpful for the parties to both feel comfortable with one another and the terms of their individual parenting visions.

Where Can You Meet a Potential Co-Parent?

As this new method of parenting has become more and more popular, so has an internet support industry of which I am a part. Websites such as FamilyByDesign.com, of which I am a legal consultant, and Modamily.com offer information to potential co-parents, as well as a database of individuals who are interested in becoming co-parents to find other such individuals.  Many LGBT Centers around the country now have family divisions that include information and networking about co-parenting.

Special Considerations

One very important aspect of co-parenting lies in the reality that the primary parents may have committed relationships with people other than the other co-parent.   This may be due to their sexual orientation or relationship status when entering into the co-parenting relationship.  Some states now have the ability to name more than two legal parents for a child. But more often than not, these “third party” individuals do not have legal relationships with the children of their romantic partners.  Primary parents must create these rights for their romantic partners by executing medical authorizations and guardianship provisions for the children.

For more information about co-parenting, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future or email Anthony at anthony@timeforfamilies.com.

in Featured Articles / Legal / Parenting  by Anthony Brown 0 comments

New York Probate Process

The New York Probate Process controls the transfer of the assets of someone who dies in the state of New York with a Will.

What is the New York Probate Process? – Probate is the process by which the state of a decedent ensures that their Last Will and Testament was drafted and executed correctly, that the assets and debts of the decedent, the person who died, are identified, that the debts are paid and the assets are distributed according the decedent’s Will. The New York probate process governs the transfer of legal title of property from the estate of the person who has died to those named in that person’s Last Will and Testament.  The New York probate process is regulated by the Surrogate’s Court.  The Executor, a person or persons named in the Will to act as coordinator, or fiduciary, of the process, often works with a Probate attorney who handles the legal aspects of the process.

What happens in the New York Probate process? – The executor of a Will contacts a probate attorney to review the decedent’s Will, discuss the process draft and execute the probate petition.  The Surrogate’s Court clerk reviews the probate petition, a document filled out by the Probate attorney, to ensure that the proper parties and assets are listed.  Then the clerk checks the Will to make sure that it is compliant with New York law.  Prior to the submission of the petition to the court, certain relatives of the decedent are located and notified about their passing and given a copy of the Will for approval or challenge.

new york probate process

Why are relatives notified? – The process of notification and waiver ensures that anyone who would have received the decedent’s assets had they died without a Will is alerted and given a chance to dispute the Will if they have just grounds to do so.  The notification process operates on the premise that only those relatives most closely related to the decedent are contacted.  The state looks first to a legal spouse, then to children (both natural and adopted,) then to parents, then siblings, then aunts and uncles and finally to first cousins.  Notification is made to and a copy of the Will is sent only to the closest group of relatives.  If a married person dies, their spouse is the only person notified, and in most cases, is also the executor of the decedent’s estate.  If a legal spouse is dead but the decedent had 2 children, only those children would be notified and sent a copy of the Will for approval or challenge.  If there were no children in the scenario above, but there was a living parent, that parent would be asked to review the Will and sign a Waiver allowing it into probate.

Who can challenge a Will? – Because of the notification process and the uncertainty of exactly who will be alive upon someone’s death, a distant first cousin who may have had little or no relationship with the decedent will all of the sudden be asked to sign off on what may be a substantial estate, an estate that he or she would be the beneficiary of if there were no will.  The monetary incentive to dispute that Will then becomes clear.  However, if the Will is drafted by a competent attorney and is New York compliant in every way, the probability of a successful challenge is greatly diminished.  There are also techniques that a versed Nontraditional Estates attorney can employ to discourage a challenge from a distant family member.  Also, if someone drafts a “codicil,” or amendment, to a Will, anyone who was negatively affected by that codicil has standing to challenge a Will.  Finally, a beneficiary under a previous Will may challenge a subsequent Will, however, they are not required to be notified of the subsequent Will’s submission to probate.

How can a Will be challenged? – The New York probate process has specific procedures for a Will challenge. In most cases, a person who receives a notification of a probate proceeding and fails to consent to it, appears in court in what is called a citation hearing.  At that hearing, the judge makes sure that all parties were served correctly and then offers the challenging party the ability to hold what are called 1404 hearings.  1404 hearings allow a party to interview the witnesses to a Will execution, the attorney who drafted the Will and have access to the attorney’s notes prior to the death of the decedent.  If, after the 1404 hearings, the challenging party chooses, they may seek a trial to determine whether the decedent had capacity to execute a Will, whether there was fraud in the execution of the Will or whether there was coercion in the execution of the Will.  In most cases at the stage of the New York probate process, a case will settle in order to avoid excess costs and fees.

For more information about the New York probate process, contact Anthony M. Brown at Time for Families and speak to a specialist probate lawyer to answer your probate questions.

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in Estate Planning / Featured Articles / Legal  by Anthony Brown 1 comments

Living Wills and Health Care Proxies

Living Wills and Health Care Proxies, sometime know as Medical Powers of Attorney, are vital aspect of an individual’s, couple’s or family’s estate plan. Many overlook these critical documents, but it may be at their own expense.

Why are these documents so important? – No estate plan is complete until it addresses unexpected medical crises which could leave someone alive, but in a compromised mental or physical condition.  Many people feel uncomfortable even thinking about these situations; however, they are exactly the reason why comprehensive estate planning is so important, including Living Wills and Health Care Proxies.

Without Living Wills and Health Care Proxies, a person may not be able to decide for themselves what medical decisions can be made about their condition or who can make them.guardianship, Gay Estate Planning, estate planning for same sex couples, estate planning law firms

What are Living Wills and Health Care Proxies – A Living Will is a witnessed and notarized document that states exactly what medical measures a person wants or does not want if a specifically outlined medical conditions arise.  It is important to note the Living Wills only apply to medical conditions which are terminal, with little or no hope of recovery.  If a doctor or hospital can get you better, they will use everything at their disposal to do so.  Living Wills address those situations where there is no hope for recovery, then you are empowered to decide what treatments a doctor or hospital to perform.

A Health Care Proxy, or Medical Power of Attorney, allows a person you designate to have access to medical records and make specified medical decisions for you. Comprehensive health Care Proxies will also allow the designated person to look into your medical file if needed to make the best decision.  This is accomplished by including a HIPAA (Health Insurance Portability and Accountability Act) waiver which authorizes hospital; and doctors to share your medical information with the proxy you have designated.

Other Considerations – It is also important to discuss with your Health Care proxy what your wishes are as defined in your Living Will.  You should never designate someone without first ensuring that they are capable of and comfortable with carrying out your end of life wishes.

If you do not have a Living Will and are unable to convey your wishes directly, a hospital has an obligation to keep you alive, whether that is your desire or not, unless your closest living legal relative (in most states) authorizes them otherwise.

The most noteworthy example of how not having a Living Will can become a nightmare was the Terri Schiavo case in Florida. Ms. Schaivo did not have a Living Will when she suffered a massive heart attack in 1995 and was declared by her doctors to be in a persistent vegetative state.  He husband petitioned the court to have her feeding tube removed and her parents opposed that petition.  In all, the Schiavo case involved 14 appeals and numerous motions, petitions, and hearings in the Florida courts; five suits in federal district court; extensive political intervention at the levels of the Florida state legislature, then-governor Jeb Bush, the U.S. Congress, and President George W. Bush; and four denials of certiorari from the Supreme Court of the United States. (procedural history courtesy of Wikipedia.)  All of this could have been prevented if she had a Living Will.

If you are incapacitated and cannot convey your wishes to a medical facility about your treatment, they will look to your Medical Power of Attorney. If you do not have one, the facility will look to your closest living legal relative for guidance.  This person may or may not be someone you wanting medical decisions for you.  The legal priority that must be followed in most states is a spouse, an adult child, a parent, a sibling, an adult niece or nephew, an aunt or uncle and finally, a first cousin.

Living Wills and Health Care Proxies are foundational elements of a person’s estate plan. These are also often the documents most critical to elderly individuals or those with preexisting medical conditions.

For more information about Living Wills and Health Care Proxies, or other healthcare documentation, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure you and your family’s future.

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Family Estate Planning

Family estate planning addresses the greatest concern of most families with younger children: ensuring their stability and security if something happens to a parent.

No one wants to think about a worst case scenario; however, that scenario will become much worse if there isn’t  family estate planning in place. The good news is that once it is completed, parents do not have to worry live in worry anymore.

There are many types of family estate planning and I will review several that may be helpful to your family. They include: basic estate planning, trust planning, guardianship planning and securing all parental rights to a child through adoption, if applicable.

Basic Estate Planning – In most states, a valid Last Will and Testament is the only legal way to name a guardian, other than the other biological or adoptive parent of a child, when one parent dies.  It is critical to have a Will in order to make this designation.  Most couples are concerned about something called a “simultaneous death event,” which is defined as a single event, or series of related events, that takes the lives of both parents.  A competent attorney will be able to prepare for this possibility in a Last Will and Testament, the cornerstone of a basic estate plan.estate planning , estate planning trust, glbt estate planning, lgbt estate planning, gay family law, wills, trusts

Basic estate plans should also include health care documentation known as Living Wills and Medical Powers of Attorney, or Healthcare Proxies. A Living Will states exactly what measures a person wants or does not want if certain specifically outlined medical conditions arise. It does not, however, authorize another person to make those decisions for the Principal of the Living Will.  A Medical Power of Attorney allows a designated person to have access to medical records and make specified medical decisions for the Principal.  For more information on basic estate planning, read my article here.

Trust Planning – A family estate planning trust is useful for parents who may not want to pass significant amounts of money to their minor children upon the parent’s deaths.  Trusts allow a parent to spread payments out over a longer period of time, appoint a trustee to manage those payments, provide for investment suggestions or advisors and include provisions to protect a beneficiary child if they have a substance abuse issue.

Trusts can also be useful tools to either bypass the probate process, which in many states can be long and complicated (a revocable trust), or to avoid estate taxation in the form of an irrevocable trust. For more information about how a family estate planning trust can help your family, read my article here.

Guardianship Planning – There are two general types of Guardianship Designations that are important parts of any estate plan.  The first is an adult Guardianship Designation, the second, a Guardianship designation for your children.  A child’s Guardianship Designation allows the parents of a minor to legally give another person the right to be designated by a court as the guardian of the child’s property and person.

Unless you are naming your child’s other biological or legal parent as their guardian, you must name a guardian in your Last Will and Testament. Once named, the designated guardians will still have to go to court to be legally designated the child’s guardian.  Without your nomination in a Will, that person would not be able to seek guardianship.

Securing Parental Rights Through Adoption – While most parents are secure in their parentage to the children living in their homes, many situations do not fit into that norm and basic protections become a vital part of family estate planning.  Same-sex couples must secure rights to the children born into their relationships through parentage order or second or step parent adoption.  Homes where children are living with step parents must pay particular attention to naming a guardian should both biological parents die.  The second or step parent adoption process in New York  is described in detail in this article.

When family estate planning becomes a priority for you, please consider me a resource. For more information on family estate planning, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Gay Family Values

In 2016 it seems almost archaic to write about gay family values, but the truth is that many in this country still do not understand exactly what they are.

 

First, let’s unpack the term, “family values,” because its modern day origin sheds light on the journey our understanding of the term has made over approximately the last 30 years. Many credit the rise of “family values” with the birth of the religious right.  The religious right stemmed from a failed presidential bid by conservative evangelical Pat Robertson in 1988.  Pat Robertson and Southern Baptist pastor Jerry Falwell maintained one of the most successful movements deriving from a losing campaign, which was the “religious right.”  Family values was the buzzword for any number of anti-gay, anti-women, racially motivated campaigns to keep right wing, mostly Republican politicians in office by driving wedges between the electorate to maintain political control.  With this background, gay family values were absolutely unheard of.Gay dads

Gay family values have a much richer and historic past. Gay people have been having families, raising children and living lives of value since the beginning of recorded history.  The very same qualities espoused to be superior, or correct, by the religious right are the same values that gay parents teach their children and gay children teach their parents.  And it is interesting that these values, when interpreted for political reasons, tend to be based in religion.  This is particularly interesting when you consider that Jerry Falwell’s father was a bootlegger and an agnostic and his grandfather was an atheist, yet he managed to be “valuable.”

While in law school, I did my summer internship at Lambda Legal, the nation’s foremost LGBT impact litigation organization.  I was fortunate enough to work on a case called Lawrence v. Texas.  This landmark gay rights case decriminalized gay sex, which was literally a criminal offence. Prior to its decriminalization, it was used to deny employment, take children from fit parents and serve to marginalize the LGBT community in many states. Lawrence v. Texas was seen by many as the foundation for marriage equality.  Ever since working at Lambda Legal, I knew that I wanted to work with couples and families to protect their interests, and their values.

I have had the privilege of being an attorney for the last 13 years working with gay families, unmarried couples and essentially anyone who falls outside the misnomer, “traditional,” as their family and trusts and estate lawyer. I have seen people go out of their way and spend sometimes unthinkable amounts of money to create the legal protections that most “traditional” couples and families take for granted.  Fighting to ensure the security of your family, in my estimation, is the definition of family value.

While basic estate plans and second or step parent adoptions are certainly critical, and a big part of ensuring the safety of children in these families, that is not the type of gay family values that I’m talking about.  It is the concept of putting your family’s interests above your own.  It is the simple joy of learning from your child about their understanding of the world.  And it is something far more universal than many who have not been exposed to family structures other than their own may not be able to comprehend.  When I meet other families that don’t look like mine, and they meet my family, the spark of possibility is lit for an exchange of information that is critical for value development.

adoption new york,new york adoption,new york state adoption, stepparent adoption process,adopting step children,co parent adoption,2nd parent adoption,second parent adoptions,gay adoption new york,gay couple adoption, gay couples adoptingI count my blessings every day that my son Nicholas, a six and a half year old with the soul of my departed father, is growing up in New York City, where every language is spoken and where every culture is practiced. I am grateful that my daughters have parents who love them and who share with them the possibilities of life that their parents shared with them.  The truth about gay family values is that there is no such thing.  Family values are born from love and respect, not only between family members, but among the different families that exist all over the world.  Those values are exclusive to no particular group.

My son asked my husband and me the other night when we could go to Paris. My first thought was, “when you get a job,” but after reality set in, I started to think what it would really be like to really show him other cultures.  What an absolute honor it would be to share the world with Nicholas and to see it through his eyes.  There really is no better way to understand family values than to see them at work in other families.  So until we get to Paris, you can look for us tooling around the West Village of New York City.  You can’t miss us.  We’ll be the ones with the values!

For more information about creating and protecting your family, contact Anthony M. Brown at Time for Families.

in Estate Planning / Featured Articles / Known Donor / Parenting / Second Parent Adoption / Step Parent Adoption / Surrogacy  by Anthony Brown 2 comments

Gay Parents Adoption – New Possibilities

Gay parents adoption used to be unheard of.

While certain countries still struggle with the concept of our families being equal to all others, in America, the foundation for gay parents adopting has been set and the legal protections for these families are available and critical to creating security in these family structures.  There are several means by which gay parents adoption can occur. I will review the most common: private adoption, public adoption and second or step parent adoption.

Private Adoption – There are several reasons that parents looking to adopt a child may look into private adoption, sometimes referred to as domestic adoption. The availability of children is higher than most people expect.  In the most recent year for which accurate data exists, there were over 18,000 domestic non-relative adoptions of newborns within the United States. Although the number of people placing their children for adoption has fallen dramatically since the 1970s due to the stigma of single-parenthood thankfully decreasing, there are still many birth parents making the painful but loving choice to look for a family for their biological child.

The adoption of the child can be done in one of two ways. The first is to engage an agency to walk you through the process and to help you with paperwork and the emotional upheaval that such a big life decision will inevitably bring. The benefits to involving an agency are numerous; for example, having your own ‘Adoption Specialist’ who will help you communicate with the various other professionals who need to be involved in the process such as social workers, physicians and lawyers. Financial assistance may be available to help cover legal fees, and agencies often do not charge to process the adoption.

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drawing of a happy couple of lesbians and adopted child

The second is a private arrangement whereby a birth mother and prospective parents arrange the adoption between themselves. They will have to hire lawyers and meet the legal requirements of adoption such as age, ability to care for the child and other important aspects. Parents who want to adopt are able to ‘advertise’ for a birth mother, and mothers who have chosen adoption for their child are able to do the same for an adoptive family.

Public Adoption – Foster children are in the legal custody of a commissioner of a social services district. That district may give responsibility for the care of the child to a voluntary authorized agency. When a child is in foster care, decisions must be made regarding the long-range permanency plan for the child. If the social services district decides that it would not be in the child’s best interests to return home and that the child should be adopted, steps must be taken to legally free the child for adoption.

There are three ways a child can become legally free for gay parents adoption: 1) the birth parents can sign a voluntary surrender agreement; 2) the social services district responsible for the child can bring a case in court asking the judge to terminate the parental rights of the birth parents; or 3) if both birth parents are deceased, or one parent is deceased and there is no other parent whose consent to the adoption is required, the child is automatically free for adoption.  Read more at the NY State Office of Children and Family Services, the source of this information.

Second or Step Parent Adoption – One increasingly popular methods for gay parents adoption is when one parent has a biologically related child of their own and their partner or spouse adopts that child.  If the couple is not married it is referred to as a “second parent adoption” and if they are married, it is referred to as a “step parent adoption.”   For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child.

While recent case law is catching up to our families, it is still lagging in the ability to create complete security without adoption, or a birth order from a competent jurisdiction.  Whichever path you choose to having your family, It is critical to speak with an attorney with experience in the field.  When you consider gay parent adoption, please consider me a resource. For more information on family estate planning, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Estate Planning Trust – Does my family need one?

I get this question a lot, “Do I need an Estate planning trust?” The answer differs for every personal and family situation, but there are some critical reasons why an Estate Planning trust may be right for you.

Before understanding when an Estate Planning Trust is appropriate for you, it is important to understand exactly what they are. There are two types of Estate Planning Trusts, revocable and irrevocable, and two ways to create them, either in a Will, a testamentary trust, or as a standalone document.

Revocable Trusts – A revocable trust is executed during the lifetime of the Grantor, the person creating the trust, and is called an intervivos trust.  The Grantor often has controlling power over the assets in the trust during his or her lifetime.  Revocable trusts are tied to the social security number of the Grantor and provide the Grantor with specific control over the assets contained within the trust, including terminating the trust and transferring any trust assets back to the Grantor.  The most common reasons for revocable trusts are to bypass the probate process for passing assets upon the death of the Grantor and to provide for the management of assets that the Grantor may believe that they cannot manage due to illness.estate planning , estate planning trust, glbt estate planning, lgbt estate planning, gay family law, wills, trusts

Irrevocable Trusts – An irrevocable trust may be created either during the life of the Grantor, an intervivos trust, or in the Grantor’s Last Will and Testament, a testamentary trust.  In the case of the latter, the trust becomes irrevocable upon the death of the Grantor.  The key difference between a revocable trust and an irrevocable trust is that the Grantor completely surrenders control over any assets contained in an irrevocable trust.  Irrevocable trusts also require separate tax ID numbers, and have separate tax filing requirements.  Reasons for creating an irrevocable trust include minimizing estate tax charges on assets passing to non-spousal beneficiaries, such as homes (Qualified Personal Residence Trusts – QPRTs) and life insurance proceeds (Irrevocable Life Insurance Trusts – ILITs).  The values of assets which pass through irrevocable trusts are not taxable in the Grantor’s estate; however, there may be a gift tax event which occurs at the time of the initial transfer of an asset into an irrevocable trust.

Other Reasons for an Estate Planning Trust – For Grantors who own real property in a state other than the state of their domicile, a proceeding called an “ancillary probate” is required.  This means that if a person lives in New York and owns real property in Florida, two probate proceedings must be brought: one in New York to pass their New York property and one in Florida to pass the Florida real property.  In order to avoid this unnecessary and expensive double probate process, the title to real property in Florida may be transferred into a New York revocable trust.  This transfer then negates the need for the Florida probate proceeding.  It is critical; however, to actually transfer the title of the Florida property into the New York trust and have that newly transferred title recorded in the appropriate Florida County Clerk’s office.  Simply creating the trust is not enough.

Children’s Trusts – The primary reason why people include an Estate Planning Trust in their Wills, a testamentary trust, is to provide for young children in case something were to happen to both parents before he children reach an age where they can responsibly manage their money.  Children’s trusts allow parents to name a trustee, or money manager, for the assets which will eventually pass to their children, to provide for unexpected circumstances such as drug or alcohol abuse of a child and to stretch out distributions of principal and interest over a controlled period of time.  It is important to note that a Children’s trust cannot name a guardian for the person of the child, only for the property of the child.  This personal guardianship designation can only be made in a Last Will and Testament.

If I have an Estate Planning trust, do I still need a Will? – In a word, yes!  The Estate Planning Trust should be an addition to a person’s estate plan, not a substitution for it.  To see a list of estate planning basics which all individuals and couples, with or without children, should have, visit TimeForFamilies.com.

When you are considering an Estate Planning Trust, please consider me a resource. For more information the basics for estate planning for gay couples, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Compassionate Surrogacy – Options For Your Family

adoption and surroagcy lgbt family planning

Compassionate surrogacy, sometime referred to as altruistic surrogacy, is the process where a woman, the compassionate surrogate, carries a child of the intended parents with the intention of giving that child to the parents once it is born.

A compassionate surrogate does not receive compensation for her services.  It is a special person who can be a compassionate surrogate.  When is compassionate surrogacy the right choice for your family?  The answers depend upon several factors.

 

  1. Compensated surrogacy is currently illegal in 3 states: New York, Michigan and Louisiana. While that doesn’t necessarily mean you can’t use a surrogate in those states, entering a compensated surrogacy contract could incur criminal penalties depending on your state of residence. Compensated surrogacy means that the surrogate mother receives a fee for participating in the surrogacy process.
  1. If you want to go through compassionate surrogacy in New York, the surrogate cannot accept compensation outside of statutorily allowed medical and legal costs. The surrogate in these cases is often known by, and close with, the intended parents. It may be a family member as well. You will need a lawyer to determine what costs are and are not allowed to be paid by you, and also to draft a Memorandum of Understanding between the intended parents and the surrogate mother to outline the process and provide for all possibilities that may occur during the process from insemination to birth, and beyond.
  2. A surrogacy, or ART (Assisted Reproductive Technology) attorney must have extensive experience in these types of agreements and can help you and your partner or spouse learn what to expect, average timelines, required paperwork, and even let you know the average costs as well as what is and isn’t legal for you to pay for during the pregnancy.
  3. A compassionate surrogacy attorney can help you manage the relationship with the surrogate and provide dispute resolution that may be needed throughout the surrogacy process, in most cases through the surrogate mother’s separate attorney.
  4. The most critical aspect of compassionate surrogacy is establishing the parental rights of the non-biological intended parent.       Your attorney can help the non-biological parent petition for second or step parent adoption so that both parents have a legal relationship established to the child as soon as possible. Read this article for more information about the second/step parent adoption process.
  5. It’s extremely important to have a lawyer draft any agreement or Memorandum of Understanding between the intended parents and the surrogate mother. If there is a misstep in the contract, you and your child could potentially go through a lengthy and painful custody battle (not to mention the aforementioned criminal penalties in NY) should the mother change her mind. It would be devastating to lose your child over a technicality in the contract.
  6. The hardest part of the process to really grasp is that the Memorandum of Understanding is technically unenforceable in New York.  It’s purpose is to have the parties go through the process of discussing the elements of the journey and the possible contingencies that may occur.
  7. It is critical that psychological support services are provided for both the surrogate and the intended parents and that both parties thoroughly understand the process before entering into any agreement.

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There is currently legislation in New York State that would legalize compensated surrogacy. The Child Parent Security Act would not only make compensated surrogacy a legal option for NY parents, it would also allow both intended parents to be immediately legally recognized as parents at the birth of the child, thus negating the need for the lengthy process of second or step parent adoption by the non-biological intended parent. The CPSA would further protect the rights of surrogates, making sure they are not legally responsible in any way for a child they never intended to parent. While the LGBT community, as well as opposite-sex couples who may need a surrogate, are hopeful it will pass, the bill has been stuck in committee for many years.

If you’re thinking of expanding your family with the help of a compassionate surrogacy, start the process by speaking with an experienced attorney so you can get a solid idea of what to expect, and even if it’s the right decision for your family. As a leading expert in the Family and Estates division of Albert W. Chianese & Associations, Anthony M. Brown is here to help your family with all of its growing legal needs. Call 212-953-6447 or email anthony@timeforfamilies.com to answer any questions you may have concerning compassionate surrogacy or any legal questions concerning same-sex family planning.

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in Featured Articles / IVF / Legal / Parenting / Surrogacy  by Anthony Brown 2 comments

Estate Planning Basics for Gay Couples

What are the estate planning basics that all gay couples need to know? This article will give you the information you need to take those first steps toward protecting your family.

Some of the most common errors that gay couples make regarding estate planning basics can be corrected fairly easily. Before we discuss these, it is important to know that over half the American public, regardless of orientation, do not have a Will. The number one reason I hear is, “I don’t have anything so why do I need a Will?” The truth is that most people, when they know what the state requires when someone dies without a Will, realize that they have more than they think and that they want to decide what happens when they die.

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Maximizing non-probate assets – The rule of estate planning basics is to know what assets a Will passes to your desired beneficiary. Wills cover probate assets, or assets held solely in your name. Examples include real property, bank accounts and personal belongings. Personal belongings are key because many people do not like the idea of a distant relative rooting through their most cherished items after death. Wills do not pass non-probate assets, or assets held jointly with someone else, assets held in trust for someone else or any asset that has a designated beneficiary, like an insurance policy, a 401(k) or an IRA retirement plan.

Property ownership – The most valuable asset for many people is a home, condominium or cooperative apartment. If you own that property jointly as a married couple (Tenants by the Entirety) or with someone you are not married to (joint tenants with right of survivorship), then that property will pass directly to the surviving co-owner. If, however, you are not married and own the property with another person and the title to the property simply states both names, without the words, “joint tenants with right of survivorship,” then your half interest in the property must pass through your Will. This form of ownership is called “tenants in common.” One of the most estate planning basics is to verify on your title document exactly how you own that property with another person.

Documents everyone should have – While marriage provides some very important protections for gay couples, it is always advisable to have a comprehensive estate plan to make sure that you have control over you body and your assets. The top 6 document list of estate planning basics include the following:
• Last Will and Testament – A Last Will and Testament allows the drafter of the document to control the distribution of their assets upon death.
• Durable Power of Attorney – This document allows the drafter to authorize another person to make financial decisions for them. It authorizes, among other things, payment of debts, collection of payments, redistribution of assets, withdrawal of assets from a bank account and the sale of property.
• Designation of Guardian for Property Management and/or Personal Needs – If a person were to be judicially declared incompetent or incapable of managing their property or themselves, the court would appoint a guardian for that purpose. The guardian is usually a family member. This document allows the Principal to designate who that guardian would be.
• Living Will – A Living Will states exactly what measures a person wants or does not want if certain critical and specifically outlined medical conditions arise.
• Medical Power of Attorney / Health Care Proxy – This document allows a designated person to have access to medical records and make specified medical decisions for the Principal.
• Priority Visitation Directive – A Priority Visitation Directive specifies who the Principal prefers to have priority visitation privileges, usually over family members. This is particularly important if you are no married.
• Affidavit of Burial or Cremation – This document ensures that a funeral director or funeral home administrator follows the instructions given them by the person designated in the affidavit.

Without estate planning basics – If you are married, now that marriage equality is the law of the land, certain protections are guaranteed. Your assets will pass to a surviving spouse, and you children, in defined percentages according to the state in which you live. Your spouse will be allowed to make medical decisions for you, however, financial decision making requires an executed Durable Power of Attorney. If, however, you want to make sure that specific items go to anyone other than your spouse and/or children, you must have a validly executed Last will and testament.
When you are considering the estate planning basics that all gay couples, and individuals, should have, please consider me a resource. For more information the basics for estate planning for gay couples, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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in Estate Planning / Featured Articles / Legal / Resources  by Anthony Brown 0 comments