The Paradise Law Office
124 Brooklea Drive  •   P.O. Box 691 
East Aurora, New York 14052
P 716-860-0614   •   F 716-408-5543
paradiselawoffice@gmail.com
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Legal Updates

DISCLAIMERS: The advice and information contained here is NOT legal advice, but is only given for informational purposes and is by design only general in nature and may not apply to your particular situationOne should always consult directly with an attorney for the most current and accurate advice that is applicable to your unique set of circumstances.

Fall 2014 Legal Update

Cellphone Privacy Update: This past June in one of its most important privacy rulings, the US Supreme Court unanimously decided that police must first get a warrant in order to search personal electronic devices such as cellphones. This monumental decision will help protect privacy rights of Americans in the digital age.   However, this does not mean that the police cannot search your cellphone, it just means that if you don’t give permission they have to get a warrant.  If the police want to search your cellphone, it’s probably a good idea to refuse and immediately call a lawyer for assistance on how to handle the situation. 

Furthermore, as we approach the 50th anniversary of the “Miranda Warning” which has been ingrained into our culture in countless TV shows and movies (yet so many people ignore or forget this right), it bears repeating that if you are being questioned by the police you should immediately tell them that you want to speak with a lawyer and then remain silent. Best idea – no matter how hard it may be - just keep quiet.

Estate Planning and Inherited IRA’s Update:  In another unanimous US Supreme Court ruling, it was decided that inherited Individual Retirement Accounts (IRAs) are not shielded from creditors in bankruptcy proceedings.  Retirement accounts such as an IRA are usually protected from creditors.  However, under this ruling if you are the recipient of an inherited IRA that money is no longer protected from your creditors.   This is an important reminder that when it comes to estate planning it is critical that you do not solely focus on your own financial situation, but should also consider the financial situation of your potential heirs. Sometimes tough questions and discussions involving family and friends regarding finances are necessary so that an effective plan can be put into place.  Estate planning cannot be done in a vacuum and needs to involve looking at the “big picture” of everyone who is involved.

Spring 2014 Legal Update           

Driver Alert:  There is an increasing “crackdown” on texting while driving by law enforcement as they seek to change the thinking of drivers.  According to the Buffalo News, the number of texting while driving tickets has increased 82% in the past year.  Many local prosecutors and judges simply refuse to plea bargain these tickets down to parking tickets as can often be done in local courts for regular speeding tickets.  For a first time offender, the fine for texting while driving can be as high as $150 (not including a nearly $100 state surcharge) as well as receiving 5 points on your drivers license.  These penalties are more severe than what faces the speedster going 20 mph over the speed limit. For new drivers who have a probationary license, conviction now means an automatic 120-day license suspension.

After our very severe winter, it seems like potholes are everywhere.  Now that we have entered the month of May, NYS is now possibly back on the hook for damage caused to vehicles on state roads such as the 90 or 33. As has been documented in the New York Times and on local TV stations, NYS conveniently exempts itself from liability for pothole damage under Section 58 of the Highway law except for the time period between May 1st and November 15th - which means NYS is off the hook during the critical winter months.  For our local and county roads, potential liability only attaches if the proper government is put on notice - which often means it must be done in writing and then they must be given “reasonable” time to fix the pothole which can be as long as two weeks. To report potholes on NYS roads call 1-800-pothole and for local roads call your town highway supervisor. 

Estate Planning Alert: As part of the recently enacted NYS Budget, the NYS estate tax exemption level is going to increase to match the Federal level changes that were described in my Fall 2013 Update- though they will be phased in over the next five years.  The exemption has immediately been increased to $2 million, and will increase to approximately $3.1 million in 2015, $4.2 million in 2016, $5.25 million in 2017 and then match the Federal level and increase with inflation starting in 2019.  This important change in exemption amounts will mean that for all practical purposes most New Yorkers will no longer face an estate tax bill.  However, while the changes are phased in, there are some significant issues with the legislation that will potentially cause trouble (and significant tax bills) for those whose estates are over $1 million - given the complexities involved, those who find themselves “lucky” enough to be in such a position should seek out proper legal and financial planning advice. For those estates above the exemption amount, the top estate tax rate remains at 16% for NYS and 40% at the Federal level.

Gun Owner & Hunter Alert:  The April 15th deadline under the SAFE ACT for registration of assault weapons has now passed, which means failure to register could result in misdemeanor and in some cases felony charges for failure to comply as well as forfeiture of the weapon.  In lieu of registering, a gun owner has the option of modifying the weapon so that the now banned military style features are permanently inoperable.  While the SAFE ACT is controversial and continues to face numerous court challenges, it is advised that gun owners follow the law because the penalties for non-compliance are severe.  As stated in my Fall 2013 Update, lawful gun owners need to be extremely careful to not be entrapped by the provision that allows only 7 rounds to be loaded into a magazine.  Furthermore, it should be noted that under the SAFE ACT, it is now required that every firearm, shotgun and rifle owned by a decedent be listed in the inventory of assets filed with the Surrogate Court as part of the probate process.  Finally, cross bow hunting will now be legal in NYS starting this Fall once the DEC finalizes regulations.

Fall 2013 Legal Update

Homeowner Alert:  New York State’s 2013-2014 budget requires that ALL homeowners re-register for the Basic STAR exemption.   In the past, once you had registered for STAR you didn’t have to do anything more, however, to help combat fraud where people were claiming exemptions on more than one property (you can only claim it on your primary residence), New York State is now creating a master database to stop the double dippers, which is why everyone must now re-register.   You must register by no later than December 31st of this year.  The tax department has mailed out notices to all homeowners, but they have been largely ignored according to media reports.  Given that the average STAR savings statewide is $700, many people could be facing significant tax hikes next year if they don’t re-register.   You can register online at www.tax.ny.gov or by calling the tax department directly at 518-457-2036.  In either method, you will be required to provide some basic information such as social security number, confirm that the property is your primary residence and that your combined income is less than $500,000.   **This does not affect Enhanced STAR, which is handled separately by the local assessor’s office and already requires an annual verification of age and income status.

Gun owner Alert:  There has been much media attention this year on Governor Cuomo’s controversial SAFE Act which imposes numerous new rules and regulations on gun owners and the gun industry in New York State.  While the court system deals with the countless constitutional issues related to this legislation, lawful gun owners need to be extremely careful to not be entrapped by the provision that allows only 7 rounds to be loaded into a magazine.  There is no such thing as a 7 round magazine, so gun owners must remember to only place 7 rounds in their regular 10 round magazine or face the possibility of being charged under the act, which could potentially carry a prison term if convicted.   While many law enforcement agencies and local governments have condemned the law, you do not want to risk a possible prison sentence as many law enforcement agencies (such as Lockport police) have already arrested and charged people under this act for having too many bullets in their otherwise legal gun. Lawful gun owners seeking more information on the SAFE Act and its numerous provisions should visit http://scopeny.org for information provided by an organization dedicated to defending the 2nd Amendment or for the Governor’s viewpoint at http://www.governor.ny.gov/nysafeact/gun-reform

Estate Planning Alert:  While we can never know for sure what Congress is going to do, it appears that the estate tax issue has been resolved at the federal level for the time being.   Over the last several years, the estate tax level has ranged from $1 million to being totally repealed in 2010.  It appears that the new exemption level will remain at $5 million, while being indexed for inflation and allowing portability, which means that a married couple can shield more than $10 million in assets.  However, the exemption remains at just $1 million in New York State, with the tax rate ranging from 5% to 16%.  Therefore, if you believe your estate will be greater than $1 million you should seriously think about appropriate planning if you want to avoid estate tax issues.  Furthermore, when thinking about estate planning, you also need to consider something that has long been overlooked – your digital assets – things such as iTunes or Snapfish photo accounts, frequent flyer or credit card reward accounts and even blogs – which can have significant sentimental value as well as financial.  The law is evolving with technology, but right now its best that you make sure your loved ones know your passwords to such accounts, so they can easily access and transfer them upon death because some “terms of service” agreements do not allow them to be inherited and accounts are sometimes even terminated or “locked” when a service provider is notified that the account holder has passed away.  

 

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