Rincker Law » Blog http://rinckerlaw.com Thu, 21 May 2015 15:56:45 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.2 My Article on New York Livestock Animal Cruelty Law http://rinckerlaw.com/my-article-on-new-york-livestock-animal-cruelty-law/ http://rinckerlaw.com/my-article-on-new-york-livestock-animal-cruelty-law/#comments Mon, 18 May 2015 11:09:02 +0000 http://rinckerlaw.com/?p=7903 My article on “New York Livestock Animal Cruelty Law:  What if a Non-Police Officer Comes Knocking?” was published in the May 2015 issue of Grassroots newspaper published by New York Farm Bureau.  You can find the article on pages 20 …

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horse breeder inside stable

My article on “New York Livestock Animal Cruelty Law:  What if a Non-Police Officer Comes Knocking?” was published in the May 2015 issue of Grassroots newspaper published by New York Farm Bureau.  You can find the article on pages 20 and 25 here.  The article gives a brief overview of New York farm animal cruelty law, gives a checklist for New York farmers and livestock producers if they are confronted by a peace officer, and offers a view pointers for preventative measures.

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What Happens to my Digital Life When I Die? http://rinckerlaw.com/what-happens-to-my-digital-life-when-i-die/ http://rinckerlaw.com/what-happens-to-my-digital-life-when-i-die/#comments Fri, 15 May 2015 11:15:25 +0000 http://rinckerlaw.com/?p=7905 The procedures for what happens to one’s estate when the person dies are well established. However, what happens to one’s digital lives (emails, Facebook accounts, Twitter, Instagram, Pinterist, blogging, Flickr photos) is not yet clearly established.  Many people rely on …

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tablet pc with mobile phone

The procedures for what happens to one’s estate when the person dies are well established. However, what happens to one’s digital lives (emails, Facebook accounts, Twitter, Instagram, Pinterist, blogging, Flickr photos) is not yet clearly established.  Many people rely on the service providers’ terms of use regarding death. However, many states are working towards establishing codified procedures governing digital assets upon death. New York currently has a bill pending-A823-2013, which provides access to a decedent’s electronic mail, social networking and/or blogging accounts to the executor or administrator of the decedent’s estate. You can read the text of the bill here. This bill basically calls for the executor of the decedent’s estate to take over the decedent’s email, social media and blogging accounts.

Although New York has not yet adopted a law regarding digital estate plans and this would not be recognize by a court in New York, it does not hurt to have one in place to notify a close family member or friend as to what to do with your digital life once you pass. To create a digital estate plan, you should first make a list of all digital property that you own: computers, laptops, phones, flash drives, a kindle, etc. You cannot be too over-inclusive. You should provide the location for these and try to include what information can be found on them. Also indicate any cloud storage login information and well as service providers within which you have an account and your log-in information including usernames and passwords as well. This can include shopping accounts (e.g., Amazon), dating websites (e.g., match.com and OkCupid), social networking (e.g., LinkedIn), social media accounts (e.g., Facebook and MeetUp) blogging accounts (e.g., Twitter), photo and video sharing accounts (e.g., Instagram and Flickr) and financial accounts (e.g., bank, telephone, insurance, etc.). Then you should indicate what you would like done with your accounts-close them, keep them, cash out any points or accumulated, print pictures and distribute them to family members, etc.

Depressed Businessman
With a digital estate plan, you can tell your executor any and all websites you have logins for and instructions for when you pass. For example, you could give your executor your log in information for LinkedIn and instructions to close the account once you pass. Otherwise, upon your death a family member that would first have to figure out what accounts you have open, then go through a bunch of steps to close it properly.  You can find step by step instructions on closing a LinkedIn account upon death here.  Another interesting example is Facebook because you can delete an account or memorialize it when someone passes. People might have specific feelings regarding this and so it is beneficial for the people who care about you to know your feelings.

Once you notify your digital executor of the role you would like him or her to play, track all your websites and login information, and indicate your wishes for the disposition of all accounts, you should you should make sure to store this information in a safe place.

An attorney experienced with digital estate planning can provide you with an organized way to track your wishes regarding all of your online accounts, notify you what the default rules are for most accounts upon death, keep you up to date on any new legislation, and store this valuable information for you as a will would be kept.

When Rincker Law, PLLC does an estate plan for a client, we offer a document to keep all important information including passwords to social media accounts.  

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My Lawline Presentation on Livestock Law http://rinckerlaw.com/livestocklawpresentation/ http://rinckerlaw.com/livestocklawpresentation/#comments Mon, 11 May 2015 18:18:49 +0000 http://rinckerlaw.com/?p=7900 I had a great time presenting last week to Lawline on a “Survey of Legal Issues Affecting Livestock Producers”.  I have included my presentation slides below.

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I had a great time presenting last week to Lawline on a “Survey of Legal Issues Affecting Livestock Producers”.  I have included my presentation slides below.


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8 Things You Should Have in Your Living Will http://rinckerlaw.com/8-things-living-will/ http://rinckerlaw.com/8-things-living-will/#comments Wed, 06 May 2015 11:03:30 +0000 http://rinckerlaw.com/?p=7887 If you have made a Living Will already, you have probably provided your wishes regarding artificial nutrition or hydration, CPR, and your views on organ donation.  However, there are many other specific types of treatment that may not be in …

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Worried couple looking at their bills on the sofaIf you have made a Living Will already, you have probably provided your wishes regarding artificial nutrition or hydration, CPR, and your views on organ donation.  However, there are many other specific types of treatment that may not be in your Living Will, but should be.  If you have not created a Living Will, or wish to revoke an old one and create a new one, Rincker Law, PLLC can prepare a comprehensive Living Will for you.  Here is my list for 8 additional treatments that should be in your Living Will:

1)     Antibiotics-Some people do not believe in antibiotics.

2)     Pain relief-If you have a recovering addict, you may not want certain types of medication.

3)      Anti-psychotic medication-Some can have severe side effects.

4)     Electric shock therapy-This requires general anesthesia and is used mostly for people that present an imminent threat to their own safety.

5)     Surgical Procedures-Some procedures require general anesthesia which you might not want.  Other procedures have other risks, such as infection.

6)     Dialysis-This is usually used for the rest of the person’s life to cleans their blood and basically do what kidneys do.

7)     Blood Transfusions-Some people do not believe in blood transfusions.

8)     Abortion-Many people have specific views regarding abortion and can use a Living Will to provide different instructions based on factors such as the baby’s gestational age; the chance of survival for the mother; the chance of survival for the baby, etc.

While, hopefully you have discussed your views on treatment with your health care agent (and have created a Health Care Proxy with Rincker Law, PLLC), a comprehensive Living Will with as much information as possible will make your Agent’s job easier as he or she will have less guess work involved in deciding what you would want for your health care.

 

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Health Care Proxy vs. Living Wills http://rinckerlaw.com/health-care-proxy-vs-living-wills/ http://rinckerlaw.com/health-care-proxy-vs-living-wills/#comments Wed, 29 Apr 2015 11:02:12 +0000 http://rinckerlaw.com/?p=7886 Most people think a Health Care Proxy and Living Will are the same thing and you only need to create one.  In New York, a Living Will is not a legal document, but it is still best to have these …

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20150211_RinckerLaw-38Most people think a Health Care Proxy and Living Will are the same thing and you only need to create one.  In New York, a Living Will is not a legal document, but it is still best to have these two documents drafted so that they can be interpreted in conjunction with each other.  The best advice I can give is that you should create a comprehensive estate plan, which includes among other documents, a Health Care Proxy AND a Living Will.

Since I am admitted to practice law in New Jersey, Connecticut, and Illinois as well, I want to point out that advanced directives may have different names in different states.  In New Jersey, a Health Care Proxy is known as a Proxy Directive and a Living Will is called an Instructive Directive.  In Connecticut, you can have one document which does both, called a Consolidated Health Care Instructions and Advance Directives.  In Illinois, a Health Care Proxy is known as a Health Care Power of Attorney and a Living Will is known as the same in New York and Illinois.  One major difference is that in New York you can account for mental health treatment in a Living Will, but in Illinois, you would use a separate document, called a Mental Health Treatment Preference Declaration.

Going back to New York advanced directives, a the Health Care Proxy allows you to appoint an Agent to make health care decisions should you become unable to make them for yourself.  A Living Will provides the information to your Agent, or any other health care provider if you do not have a Health Care Proxy or do not have anyone you feel you are comfortable appointment as an Agent.

A Health Care Proxy gives a lot of control to your Agent because it gives control over your health care decisions, generally.  A Living Will provides specific instructions and requires you to know which health care decisions will arise.  A Living Will can provide more information than just your feelings about CPR, artificial nutrition/hydration, and organ donation.  My separate blog on just Living Wills will go into more detail on what you should put in your Living Will.

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Using Life Insurance as a Farm Estate Planning Tool http://rinckerlaw.com/using-life-insurance-estate-planning-tool/ http://rinckerlaw.com/using-life-insurance-estate-planning-tool/#comments Wed, 22 Apr 2015 11:16:56 +0000 http://rinckerlaw.com/?p=7884 Life insurance is a way to increase an estate’s value just by paying a monthly premium.  In the case of a farm, the life insurance can be taken out by the parent, or by a child on the life of …

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Curious Pigs

Life insurance is a way to increase an estate’s value just by paying a monthly premium.  In the case of a farm, the life insurance can be taken out by the parent, or by a child on the life of a parent.  This can help alleviate complications that can arise if certain children wish to take over the farm and others do not, but the parents do not want the non-farming children to be left without anything upon the parents’ death.

Life insurance can also be used for a specific purpose, such as costs associated with death or the payment of a mortgage and other liabilities of the farm.  Like trusts, which were discussed as an estate planning tool last week, life insurance proceeds do not have to go through the probate process.  One more advantage of life insurance is that the money derived from it is not considered gross income on your tax return; however, keep in mind that life insurance is estate taxable and should be considered if this is an issue for your farm or agri-business.

 

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Using Wills and Revocable Living Trusts for your Farm’s Estate Plan http://rinckerlaw.com/using-wills-revocable-living-trusts-farms-estate-plan/ http://rinckerlaw.com/using-wills-revocable-living-trusts-farms-estate-plan/#comments Wed, 15 Apr 2015 11:03:14 +0000 http://rinckerlaw.com/?p=7881 Last week’s blog post focused on succession planning– this post will focus on farm estate planning by using wills and trusts (both equally important and can be easily confused).  Let’s first look at the advantages and disadvantages of a will.  A big …

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Family farmLast week’s blog post focused on succession planning– this post will focus on farm estate planning by using wills and trusts (both equally important and can be easily confused).  Let’s first look at the advantages and disadvantages of a will.  A big advantage of a will is that it can be changed or revoked until the testator loses capacity to make, change, or revoke the will.  It also can appoint an executor-someone who oversees the probate process.  However, Last Wills and Testaments can be problematic because the probate process is lengthy.  This is a problem for food and agriculture businesses & farms where assets may stay in a state of uncertainty (especially if multiple states are involved).

A Revocable Living Trust is another valuable estate planning tool for farmers.  This trust can be revoked by the trustor (hence the word “revocable” vs. “irrevocable”).  There are two big advantages to trusts – they skip the lengthly probate process and pass immediately by operation of law and they are private and never become public record.  Farms (in most circumstances) should utilize a combination of a Last Will & Testament & Revocable Living Trusts.

 

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Overview of What Prenuptial Agreements Cover http://rinckerlaw.com/overview-prenuptial-agreements-cover/ http://rinckerlaw.com/overview-prenuptial-agreements-cover/#comments Mon, 13 Apr 2015 11:33:38 +0000 http://rinckerlaw.com/?p=7893 I get a lot of questions about prenuptial agreements and what they cover (and what they don’t).  I have created a nice worksheet explaining the major issues.  You can view it on my JD Supra page here.

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Couple picking grapes in a vineyard

I get a lot of questions about prenuptial agreements and what they cover (and what they don’t).  I have created a nice worksheet explaining the major issues.  You can view it on my JD Supra page here.

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7 Important Farm Succession Planning Factors http://rinckerlaw.com/7-important-farm-succession-planning-factors/ http://rinckerlaw.com/7-important-farm-succession-planning-factors/#comments Wed, 08 Apr 2015 11:07:15 +0000 http://rinckerlaw.com/?p=7879 Farmland is an important asset that should not be forgotten during estate or business planning. Even if farms will be passed down to future generations, estate planning should ensure that the parents are well taken care of for the remainder …

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Farmer posing in his fieldFarmland is an important asset that should not be forgotten during estate or business planning. Even if farms will be passed down to future generations, estate planning should ensure that the parents are well taken care of for the remainder of their lives; provide for distribution of assets to descendants or other groups, individuals, or charities.

Farm succession planning is a growing concern as many farms are becoming more financially successful than before and there are multiple generations involved in family farms. Dr. Neil E. Harl, J.D. Ph.D. has developed 7 factors that are important for farm succession planning. They include:

1) The ability and willingness to build a management team– Sometimes a farm cannot continue to operate because the younger generation lacks management skills. It is ideal for older generations to train the younger ones so that management can be mastered before the death of the older generation.

2) The “power” issue– Since most farms are family owned, there needs to be a checks and balances in place to prevent power and control disagreements.

3) Assuring fair compensation as a fundamental part of a succession plan-Dr. Harl stresses that each family member participating in the farm be compensated fairly and regularly. This prevents arguments later on if someone is under-compensated originally and then given a greater portion at a later time.

4) Anticipating disruptions– the biggest disruption is divorce, especially among the parent generation. (Which is why I should be hired to draft prenups and postnups!!)

5) Valuing ownership interests and provisions for deferred payment-there are many different valuation methods; valuation is particularly important for buy-outs.

6) Protecting minority owners– Dr. Harl set forth ways to ensure that minority shareholders feel protected. This is important for both estate and business planning.

7) Encouraging phased retirement– Many times older people need to be encouraged to retire when their practices are holding back the developing business, especially when there is significant change in the business’s needs. Dr. Harl recommends a great way to do this is to present older members with the title “emeritus” after their position.

It’s never too early to talk about farm succession planning.  I think it should be a lifelong conversation that every farm family should talk about.

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NY Animal Law: Pet Ownership Case in Bronx http://rinckerlaw.com/ny-animal-law-pet-ownership-case-bronx/ http://rinckerlaw.com/ny-animal-law-pet-ownership-case-bronx/#comments Mon, 06 Apr 2015 11:55:46 +0000 http://rinckerlaw.com/?p=7890 As a follow up to my first blog about pet custody/ownership, I wanted to discuss a recent case from the Bronx Civil Court, Ramseur v. Askins, 44 Misc.3d (Civil Court Bronx, 2014), an action for replevin of a shih tzu …

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no data daisy1

This is Daisy, a friend’s dog.

As a follow up to my first blog about pet custody/ownership, I wanted to discuss a recent case from the Bronx Civil Court, Ramseur v. Askins, 44 Misc.3d (Civil Court Bronx, 2014), an action for replevin of a shih tzu named Deva.  The court’s decision mimics the general standard for pet custody cases in New York: the best interest for all concerned standard.  Courts recognize that pets are not mere chattel and are unique.

The facts of this case are as follows.  In the summer of 2012, the Plaintiff (who lived with his mother) bought a dog for his granddaughter. The Defendant is the Plaintiff’s aunt (his mother’s sister).  The Defendant’s son (Plaintiff’s cousin) would walk Deva for the Plaintiff three times a day.  When the cousin got a job he could not continue to walk Deva.  Around that same time, the Plaintiff moved out of his mother’s house and moved in with his uncle, leaving the dog with his mother. One day the Plaintiff’s mother asked the Defendant to give the dog a bath and dropped Deva off at the Defendant’s house.  Plaintiff’s mother never came back to retrieve the dog.

In March 2014 (almost two years later), the Plaintiff and his mother asked the Defendant to return dog because the Plaintiff wanted to bread her.  The Defendant refused and the Plaintiff commenced an action for replevin. The court analyzed each party’s relationship with Deva using the best interest of everyone standard.

In assessing the Plaintiff’s relationship with Deva, it considered the facts that: (1) when Deva first began living with the Defendant, the Plaintiff and his mother brought dog food, but not enough; (2) the Plaintiff would occasionally visit the dog (and only groomed her once); (3) the Plaintiff rarely sees the dog (and his new wife’s son has never even met the dog).  These facts did not fair too well for the Plaintiff.

The Defendant, on the other hand, had quite a different relationship with Deva.  The Defendant regularly purchases dog food, pays for grooming, and feeds and walks her daily.  Everyone in the Defendant’s household has a close bond with the Deva and helps with these tasks.  Deva and member of the Defendant’s household have a close bond.  Additionally, the Defendant, who lost her hearing in one ear, has now come to depend on Deva to alert her when someone rings her intercom or knocks at her door.  Lastly, Deva shows signs of anxiety in Defendant’s absence.

The facts of this case made it easy for the Court to determine that the action for replevin should be dismissed because the Plaintiff essentially showed no interest in the dog and the dog clearly had so much love, attention, and support from the Defendant and her family.

 Cari is available to both mediate and litigate animal law disputes, including dog custody cases.  Cari is a trained mediator and can help the parties reach an amicable resolution outside of the courthouse.  

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