Get a Digital Lawyer

No, I don’t mean an attorney based in artificial intelligence. You need a human attorney who is fully educated on the latest technology that allows them to serve you best, especially during difficult times such as the pandemic.

Born in the 1960’s, I entered college with a manual typewriter. In 1986, I graduated law school with a personal computer. The rapid and revolutionary technological shift in which we’re living is unprecedented in history. Creative professionals know this very well. Authors use computers and the web. Actors use digital headshots and submit home-shot video via email and the web. Musicians put their music on the web as digital files.

My first job as an attorney was as in-house counsel at a major national insurance company. I had my own secretary and a Dictaphone. I did not have a computer. Today, I am a one-man office. I have a laptop, printer/scanner, and an iPhone. Vast law libraries and courthouses are available to me as long as I have an internet connection.

Most importantly, digital lawyers are best able to serve their clients at all times, especially during unforeseen events like the global pandemic. First, clients do not need to travel to an attorney’s office. Zoom and telephone meetings are fine. In almost all cases, documents do not need to be printed and mailed. Digital formats such as PDFs can be attached as emails. Those of us who have the appropriate technology can create and edit these documents easily, even allowing for digital signatures by clients and other necessary parties. Occasionally, documents need to be notarized. Fortunately, the states in which I practice have made arrangements for that process to be easy and safe.

On March 19, 2020, New York’s Governor Cuomo signed an executive order authorizing notary publics to officiate documents remotely. Specific procedures must be followed to remotely notarize a document. In addition, by an order dated April 7, 2020, Gov. Cuomo relaxed New York’s requirement for witnessing the execution of wills, trusts, powers of attorney that include statutory gift riders, health care proxies, and statutory appointments of agents to control disposition of remains under specialized rules to permit the use of audio-video technology. Certain conditions must be met, so you would be well advised to consult an attorney familiar with these issues.

On April 27, 2020, Massachusetts Governor Charlie Baker signed into law An Act Providing For Virtual Notarization To Address Challenges Related To COVID-19, which permits notaries in the Commonwealth to notarize documents remotely with the assistance of electronic videoconferencing technology while Massachusetts remains under the COVID-19 state of emergency.

Technology is constantly changing. Make sure that any attorney you make a part of your team knows how to make that new technology work for you.

Musicians Need Lawyers

Most musicians are concerned that lawyers make things complicated and create disputes. The truth is that good lawyers can set things up to avoid disputes. A well-drafted agreement between parties helps everyone avoid the courtroom and still protects you in the event that you get sued.

Too often bands don’t formalize their internal band agreement. They end up fighting over expenses, song credits, and other important issues that could be easily resolved with a well drafted agreement.

A lawyer is also helpful when you receive a contract for use of your song in a film, commercial, videogame, or an app. Also, when you need to register your copyrights of songs and recordings), or trademarks for the band’s name and logo. When you’re a musician or band who wants to form a publishing company or you need help affiliating with ASCAP, BMI, SESAC, or SoundExchange, a lawyer is a good resource to have.

It’s always good to already have a relationship with an attorney when you find out someone is using the same band name, you discover that someone is using your song without permission, you want to cover someone else's song on your record, you want to get out of a bad deal, or you need an exit agreement with a band member who is fired or quits. Of course, If you have a record label interested in signing you and/or your band, you should have a lawyer.

If you commissioned artwork for your album cover or merch and need to make sure you have all the rights you need to use the artwork, you co-wrote a song and want to establish your rights to freely exploit the song, or even if you teach music lessons and need a services contract with your students, you should have a lawyer.

It’s also good to have an attorney if you’re a person that does business with musicians. If you’re a manager, booking agent, or a producer that needs a contract with an artist, you should have a lawyer. If you want to use someone else's music on your website or a video, you should have a lawyer. If you are running a festival and need contracts with the performers or want to have live music performed at a nontraditional venue, you should have a lawyer.

After all of the above, beware of any lawyer that promises you a record contract in exchange for a “shopping fee”. A reputable lawyer has clients who are happy to answer questions about them and advise you as to their quality.

ACTORS NEED LAWYERS

When you book a job, your agent sends over the contract or deal memo, and suddenly you wonder if you should have a lawyer look at this before I sign.

Agents understand deals and negotiate them, but a lawyer brings a deeper knowledge of the details and the capability to negotiate those details. That expertise comes at a price: Most entertainment lawyers charge talent 5 percent of the deal while some are available at hourly rates of $400 an hour and up.

Even if an actor’s employer (a studio or producer) refuses to modify the agreement, an attorney can educate the actor about the terms of the contract, including what rights he or she is giving up. A lawyer can give a perspective that a manager and/or agent might not have. If the lawyer gets paid an hourly fee, they’re not invested in you taking a possibly bad deal. An agent or manager working on commission has a potentially different view.

Remember, If it’s a small role and it’s a scale deal, you’re not likely to get any changes in the deal, and assuming it’s a SAG-AFTRA contract, the guild agreement offers certain built-in protections. However, legal review is still a good idea.

When you’re getting your first studio film and they want to take optional pictures, that would be a moment when you really need a lawyer on your side. It’s also smart for actors to have a lawyer involved when they’re testing for pilots. Remember, at that point, you’re entering into a seven-year deal before you even walk in the room. You should retain an attorney for any holding or option deal or other kind of development deal where the actor is granting some level of potential exclusivity over their services for some period.

The size and nature of the role makes a difference too. If the role is one of the leads or a major supporting role, an attorney may be able to procure additional benefits/fees and limit what rights are being given away. A lawyer is also important if the role requires nudity, the client is a minor, or the job is non-guild. Remember, not all talent agencies have lawyers available to their clients.

If you’re about to sign with an agent or a manager, you should have the representation agreement reviewed by a lawyer. Unlike agents, managers are not regulated by the state or the union, and the contracts that some managers offer to new or emerging actors can be unfair.

If you’re producing your own projects, you need a lawyer. Acquiring rights, hiring writers, directors, cast, and crew, clearing music, and negotiating with digital or physical distributors are not simple tasks for the uninitiated. You could make some very costly mistakes.

Finally, if a deal seems confusing or something feels wrong, it’s time to get a lawyer. After all, it’s your career. Protect it!

Authors Need Lawyers

Self Published

Self-published authors have many situations where they may need a lawyer. First, you may be concerned about liability regarding specific aspects of your manuscript that may be problematic when it comes to copyright or defamation issues.

More likely, you will be entering into agreements and contracts with publishing professionals. These include, but are not limited to, editors, proofreaders, publicity agents, and even possibly other writers. And these are just issues regarding the actual publishing.

It might be a good idea for you to create your own publishing company. One reason may be to create a financial wall between your personal property and your business. That way, if your business incurs significant liabilities of any kind, you may be able to prevent creditors or other claimants from pursuing your personal assets. Two possible avenues for this protection are becoming a closely held corporation, or a limited liability company (LLC). I can’t give legal advice here, but each state has different rules about these entities. Further, there are tax implications in choosing which entity you’d like to create. You will want to seek the advice of an attorney admitted to practice law in your state.

Indie Published

You should not agree to anything involving your book without a written contract signed by all the parties involved. In this situation, you will most likely not have the benefit of an agent to explain the clauses of the contract or to negotiate them on your behalf. Even if you’ve already negotiated a deal on your own or with the help of a publishing professional, changes are constantly occurring in the industry and you might know of something that will affect your rights. It’s worth a relatively small investment in a quality legal professional so you can sleep at night knowing that you didn’t lose a significant amount of rights to your own work. Additionally, that person could help you exploit your work in ways that you don’t yet know.

In both of the above situations where you don’t have an agent or other publishing professional to explain your rights and obligations, make the investment in quality legal representation. It’s your work and your career and you are worth the investment.

Legal Issues for LGBTQ Individuals

Discrimination
Even with marriage equality, LGBTQ people still face discrimination in other areas. LGBTQ borrowers are more likely to be denied loan applications as a result of discrimination. Additionally, many LGBTQ people live in urban communities among like-minded people which results in a higher cost of living. Transgender people face an increased risk of unemployment as a result from discrimination. A 2015 study found that transgender individuals are three times more likely to be unemployed and twice as likely to be living in poverty.

Life Insurance
Generally, identifying as an LGBTQ person does not impact eligibility for life insurance. There are now life insurance companies that will provide coverage for those living with HIV/AIDS, which is a very important development. But for transgender applicants, there may be a question regarding gender because underwriters use this information to determine mortality rates with actuarial tables which have traditionally corresponded with one’s sex assigned at birth. While some companies continue to use this model, there are now others that will quote life insurance policies based on one's present gender identification.

Estate Planning
LGBTQ people also face estate planning issues. If a beneficiary in a future generation has needs related to their LGBTQ identity, this should be planned for and considered. If someone has a relationship with a minor who's thought of as their child but has not been legally adopted or is not legally their child, that needs to be made clear in their documents. If not, that person could fail to become a beneficiary.

In general, the definition of descendant is changing, even outside of the LGBTQ community. People are not necessarily married but still have kids. There are many different ways to create families. People may have a child with their partner but may not get married and may never have adopted a specific child, but the relationship is there. In that case the correct legal moves and documents can be crucial.

Gender-confirmation surgery is expensive. Adoption is expensive. A trust may provide for the classic standard distributions for health and education but may not contain a further definition. For example, what if a beneficiary hopes to adopt a child and the fees are $40,000? The question becomes whether the trust is permitted under its definitions to distribute for the purposes of those costs. Even if the trustee does make the distribution, it’s not unimaginable for another beneficiary to contest such distributions. For someone going through gender confirmation, the cost can be a challenge. It’s important to indicate what constitutes “health and medical” distributions. Another question may be that of funding for a surrogate pregnancy. The Tax Court has included gender confirmation surgery as a deduction, but the Tax Court has said that surgery that is cosmetic is not a deductible expense. However, a gift to help with adoption or other family planning costs is not considered health care.

Conclusion
Representing members of the LGBTQ community means being aware of the above issues. We’ve come a long way but still have a long way to go.

Estate Planning Basics

It’s been a while since I posted a blog. I thought I’d go back to basics.

Estate planning is an all-encompassing term that refers to the process of organizing, cataloging and making arrangements for the proper handling of your affairs after you die, including your dependents as wells as your assets, valuables and heirlooms. It usually involves writing a will, setting up a power of attorney and detailing funeral arrangements. It should also include creating a Health Care Proxy or Living Will. Here are some of the key steps in getting started with estate planning.

1. Catalog your things: Your estate is more than just your home. It includes all of the things you own including your car and other valuable possessions, and "intangible assets" such as investments and savings. If you own a business, that's also part of your estate.

2. Assess your family's needs: Make sure that your family is cared for in the case of your death or incapacitation. If you're a financial provider for your family, the loss of your income could put them at risk.

3. Review and/or buy life insurance: A life insurance policy can help provide a financial cushion that can be used to cover living expenses, college tuition costs and mortgage payments. If you're single or don't have dependents, then you might not need it.

4. Name a guardian: If you have children under the age of 18, you'll want to work out who will care for them if you pass away. If you don't, the court will.

5. Name an executor: Appoint someone to manage the process of dividing up your belongings.

6. List beneficiaries: In short, who gets what? They can be family members like children, grandchildren and siblings; organizations such as nonprofits and museums; and friends or non-relatives.

7. Appoint a power of attorney: This is someone to act on your behalf in the event you can't make decisions on your own. It literally means putting your life in someone else's hands, so it's recommended you appoint someone you trust who is not a beneficiary.

8. Hire a professional: An attorney who specializes in estate law can save you a lot of time, energy and effort in building out your estate plan.

9. Document your plans: You'll want a legal document laying everything out in as much detail as possible. That's best done in a trust or will. A last will and testament outlines how you want your assets and affairs handled after you die. This includes appointing an executor, someone to manage how your will is executed. The executor handles distribution of your assets and sees your will through the probate process.

A trust details your last wishes without the need for probate court, and a revocable living trust can be changed or adjusted. A trust is generally less expensive since it avoids the need for probate while accommodating all of your assets and preferences. When you die, your trust goes into the hands of your trustees, or the legal owner of assets in your trust.

A living will details your healthcare preferences in case you're unable to communicate or make those decisions on your own. (This is also called a medical care or health care directive.) If you're in a position where you require life support or life-saving medications, a living will lists your preferences rather than relying on relatives or friends to make decisions on your behalf.

In summary, don’t wait. Life is uncertain. Don’t burden loved ones with difficult decisions and extra work while they’re grieving your loss. Make a plan.

Sorry to hear you lost your job.

As a result of the pandemic, many businesses are finding themselves with a sudden and drastic drop in revenues. Increasing marketing or seeking other avenues of income are not options at this time. As a result, these businesses are reducing their expenses and the largest of those is often the salaries of their employees. Some businesses are furloughing people for limited amounts of time, but others are laying people off. Some of you may be experiencing this and may be getting separation agreements. You need to know what these agreements mean before you actually sign them.

I’ve had the opportunity to assist a variety of people faced with these difficult circumstances. They come from diverse professions and industries, from engineering to publishing and anything in-between. You want to make sure that you’re aware of the impact of these agreements on your future ability to earn a living. What follows are a few of the important issues you need to consider.

These agreements often provide that, by signing, the former employee releases the former employer from all possible legal claims. Once you sign, you’re no longer allowed to recover any kind of damages from the former employer. Accordingly, you should make sure that you don’t have any legitimate claims for discrimination of any kind, such as age or sexual preference. Your former employer may no longer be responsible for injuries you sustained at work, or any claim that you would otherwise be able to pursue. A lawyer familiar with these issues can help you decide if this is a reason to delay signing such an agreement.

These agreements often contain a confidentiality clause. For a specific period of time, you may not allowed to share information regarding your separation agreement. There may also be a non-compete clause, the purpose of which is to restrict a former employee’s ability to work for a competitor after the end of their employment. New York doesn’t like non-compete provisions. However, they have been enforced where they don’t have greater restrictions than required to protect an employer’s legitimate protectable interest, they don’t impose ”undue hardship on the employee” or could be harmful to the general public; and where they’re reasonably limited in time and geographic scope. For more clarification, you should speak with an attorney.

Oddly enough, these agreements often have a clause specifically stating that the former employer advised the former employee to seek the advice of an attorney. This alone should make you realize that talking to an attorney is a good idea. As these agreements can involve the thousands of dollars in severance or insurance benefits, it’s worth the relatively small amount of money you’ll pay to an attorney to have them review the agreement and advise you accordingly. Peace of mind in these times is extremely valuable.

How to be an Executor

So you’ve been named as the personal representative (“executor” or “administrator”) for someone’s estate. It’s important to understand your responsibilities because mistakes can be expensive. Four of the most common mistakes involve taxes, timing of distributions, creditors, and taking actions that you may not know are problematic.

Taxes
Personal reps prepare and file tax returns and pay taxes owed by certain deadlines. The final individual income tax filing is due by April 15 in the year after the decedent’s death. There may also be estate income tax and estate tax obligations. Failing to properly handle the decedent’s and the estate’s taxes can lead to fines and penalties from the IRS and state tax authorities. Hiring an estate attorney can help you avoid problems.

Finishing too quickly
It is normal to want to settle and finalize the estate process as quickly as possible. Heirs want to receive their share of assets and may pressure the you to make distributions quickly. But this can be risky for a couple of reasons. If a creditor is “known” or “reasonably ascertainable” by you, then the creditor must receive personal notice of the notice to creditors within a certain time frame. If you distribute the estate before that claim period is ended, you might have to ask heirs to return some or all of their inheritance to satisfy the creditors. If the money has been spent already, the situation becomes even more problematic, as the estate is still responsible for satisfying debts.

There’s also a risk that assets will be missed if the estate is distributed too quickly. With the proliferation of accounts offering paperless communications, you could initially miss a bank or investment account when gathering and distributing assets. Take the time to properly administer the estate. You’ll limit the risk that you’ll need to go through the same process many times.

Obligations to Creditors
There are several scenarios related to creditors’ claims that can be problematic for you. When creditors demand payment from an estate that has sufficient assets to pay all claims, personal representatives are expected to make timely payments. There are also state statutes that govern the order of creditors’ claims. In an estate that has more assets than liabilities, not following this order isn’t necessarily critical as long as valid debts are timely paid and paid in full. However, if you’re dealing with an insolvent estate with more debts than assets, you must carefully follow this prescribed order and prorate payments accordingly. An estate attorney can help you stay out of trouble.

Other Liability Risks
Remember, you must take reasonable steps to safeguard and protect assets from the time you start until assets are distributed and the estate is settled. For example, if you use a deceased parent’s vehicle and damage it, you could be to make responsible to the estate and its heirs to fix the vehicle. If there’s real estate owned by the estate, you owe a duty to protect the property until it is sold or retitled. It’s important to keep property insurance in force and to take reasonable precautions to make sure that the home is maintained throughout estate administration.

Choose an Experienced Estate Attorney as Your Guide Being an executor or administrator for an estate without a knowledgeable, experienced guide to walk you through the process, can expose you to multiple risks and liabilities. Protect yourself by hiring a skilled estate attorney.

Powers of Attorney Explained

If you're unavailable or you become incapacitated, have someone handle your financial and other legal matters on your behalf.

A power of attorney (POA) is signed by a person when they are mentally capable to decide who they want to take care of their finances if they become incapacitated. Duties include dealing with common expenses and taxes, banking transactions, managing real estate, collection social security or Medicare benefits, and managing retirement accounts.

You can grant a financial POA agent as much or as little control as you wish, as long as it’s all outlined in the agreement. There are different types of power of attorney arrangements and they’re based on when they begin and end. These are the three common types of power of attorney agreements:

Conventional POA: This begins when the principal (the person who is appointing a power of attorney or agent) signs the agreement and ends if the person becomes “mentally incapacitated.”

Springing POA: This is the most flexible option of the three, as it begins only when the circumstances you outline in the document take place. For example, you could set it up so it “springs” into effect when you’re incapacitated. The drawback is that if you haven’t defined the circumstances clearly enough, it can be a long process in court to determine if a POA can justifiably be put into effect.

Durable POA: This type begins when the document is signed and lasts through the principal's lifetime. However, the principal has the option of canceling it. It remains in effect even if the principal becomes incapacitated.

It’s important to note that all of these powers end when the principal passes away. The executor handles things after you have passed away in keeping with your will.

It’s a good idea to have a financial power of attorney in case something unexpected happens, so the person can have their bills paid, their finances taken care of. The benefit of a financial power of attorney is that everything is spelled out, so your loved ones don’t have to figure it out amongst themselves. And, if you don’t have children, you can appoint a close, trusted friend to handle your finances.

Choose someone you trust as they will be making important decisions on your behalf. Your agent doesn't have to be a financial expert; just someone you trust completely who has a good dose of common sense. If necessary, your agent can hire professionals (paying them out of your assets) to help out.

Make sure you have an estate plan and that a power of attorney is a part of it.

Once you get your estate plan, what do you do with your documents?

Once you have created and executed your estate planning documents, you need to know what to do with them.

Store the Documents Properly
Your estate planning documents should be stored in a safe, secure location that is accessible to the person you appoint to handle your estate’s affairs after your passing (executor). Some law firms will store your original signed documents for you. If you want to keep them at home, you should use a water-and-fire-proof safe or filing cabinet. It’s a bad idea to use a safe deposit box in a bank because that can be hard for your representative to access. Often the documents giving your personal representative the right to access the safe deposit box are actually in the box.

Spread the Word
It’s critical that you tell your personal representative where the documents are located so that they can easily access them when needed. If the documents are locked away, your representative needs to know the combination or where the key is located. You should also talk to other people who might be affected, such as your agent under a power of attorney or a health care proxy, about what you want if you are unable to communicate your wishes yourself. Doing this ahead of time will help them execute your wishes when the time comes. You may want to give family members copies of your documents. If an original document is lost, the court may accept a copy in some circumstances.

Avoid Confusion
Make sure you destroy any old estate planning documents that are no longer valid. Old documents can cause confusion among family members and could even lead to litigation. In addition, do not write on your current documents. If you want to make a change, contact your attorney to formally change the document. Handwritten additions are usually not valid and could raise questions about the document.

Remember, these documents are important, but they can only be used to take care of your loved ones when they are easily accessible to the people who need them. While confidential, make sure the people you trust can get to these documents quickly and easily.

Remote Witnessing Now Legal in New York

New York Gov. Andrew Cuomo recently issued a new executive order that addresses remote witnessing. The order, among other issues, clarifies the requirements needed to allow the remote signings of such documents as deeds, wills, powers of attorney forms and healthcare proxies.

The order states that the law authorizes the use of audio and video technology if the following conditions are met:

• The person requesting that his or her signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;

• The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);

• The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;

• The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and

• The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

Remember, a living will is a document that advises others as to what measures, if any, you want taken to keep you alive when you are not otherwise able to communicate your wishes. It is meant to ensure that your wishes, not those of relatives or the state, are followed. It should minimize the amount of pain and difficulty for family members in the event you become incapacitated. In short, it’s a great way of taking care of people when you are physically not capable of telling them what you want. All 50 states recognize living wills in one form or another. However, less than 30% of adults in the United States have executed a living will.

If you have children, a Will should provide who will be the guardian of your children. That is the person responsible for taking care of your children’s physical, emotional, and spiritual needs if you are unable to care for them. You want to make sure that, however you structure your estate plan, you name guardians for your minor children.

Don’t let the pandemic keep you from taking care of yourself and the people you love. Now we have remote witnessing. Contact a qualified attorney and take care of this right away.

Once you get an estate plan, keep it up to date.

Have you divorced? Been widowed? Remarried? Are there new children? Have your children grown? Don’t have your loved ones’ grief compounded with financial stress.

Wills
In a recent case, there was an old Will from before a recent marriage. The assets were left to a prior spouse and siblings. Under New Jersey and New York state law, gifts to prior spouses are automatically revoked by law. However, that just means that all assets pass to the alternate beneficiary under the old Will. In this case, that meant all assets passed to the deceased spouse’s siblings, not to the new spouse.

In New Jersey and New York, spouses can elect against a Will to claim a share of their spouse’s assets. That means they can choose an amount that the state mandates under its laws rather than the actual amount left to them in a will, if the state’s amount is larger. However, it still may only result in one-third of the total assets going to them. This is far short of what most people desire to leave for their partner.

What if there is no Will? The intestacy statute (the law that governs situations where no will exists) does not fully protect spouses. The law in New Jersey provides that if there is no Will, most assets go to the surviving spouse, but nearly one-fourth goes to the deceased’s parents. If there are children from a prior marriage, then a little more than half passes to the spouse. This is why I am such a vocal advocate of people creating a Will.

Beneficiaries
It is crucial that beneficiary designations (who you’re leaving money and things to) are updated. You probably don’t want your niece to get your IRA instead of your new spouse. In yet another example of why it’s best to have a real legal professional handle things rather than create a DIY solution, updating beneficiaries applies to Wills and insurance policies and brokerage accounts and all manner of assets. Your estate attorney should have an already existing list of assets that will make this process easy and, most importantly, accurate.

If you want to make sure you have a complete list of assets, just email me at eric@ericrubenlaw.com to request your free Family Wealth Inventory & Assessment form or go to www.ericrubenlaw.com and hit the Contact Eric button and fill out a consultation form. Take control of what you can.

The Pandemic and Avoiding Probate.

What is probate?

Probate is the process through which the legal title to property is transferred from the person who dies to their beneficiaries. If the person dies with a Will in place, the Probate Court determines if the Will is valid, hears objections to the Will, orders what creditors are to be paid, and supervises the process to make sure that the property is distributed by the executor according to the terms of the Will. This all seems to make sense, but there are very good reasons to want to avoid the probate process.

Why avoid probate?

If your family might have an immediate need for cash, it can take weeks or even months to access a deceased person's assets. Heirs can be stuck paying for everything from the funeral to utilities while your estate is probated. Your family might not even be able to access the cash in your bank accounts during probate. They'll also have to pay property insurance, taxes and even storage fees until probate is officially opened, and that can't happen without a court order. If you have a spouse who doesn't work and doesn't have access to their own funds, they can be left scrambling to pay for even the most basic living expenses.

Probate costs money. There are court filing fees and probate fees. If your estate requires the assistance of an attorney, that’s an additional cost. Many states base attorneys' fees on a percentage of the estate. Even a small estate made up of a home, a car, and some bank or investment accounts, can result in legal fees in the tens of thousands of dollars. All these fees are payable out of the estate, leaving less money for your heirs.

Probate is also a public process. If you and your family are private people, you should be aware that in probate a deceased person's assets, liabilities, beneficiaries, and personal representatives are a matter of public record.

Now many states are shutting down non-emergency court proceedings. This means that only criminal matters involving incarceration, matters involving protective orders, child support and endangerment, and other similar legal proceedings are moving forward. All other types of cases are on hold at the time this blog is being published. You don’t want your estate stuck in probate. Luckily, there are ways to avoid probate.

Contact an attorney working in the field of Estate Planning. They will guide you through the process that can save you a tremendous amount of time, money, and aggravation.

pandemic planning & a Free Family Wealth Inventory & Assessment Form.

It’s time to take a look at the two primary personal financial and legal items that will support your family be as resilient as possible, regardless of what happens. In an upset world, here’s something you can do to stay in control and do the right thing for yourself and the people you love.

First and foremost, make sure your health care directive or Living Will is up to date, lists the right people to make decisions for you, has their most current cell phone number, and specifics regarding how you want to be cared for if you get sick. See more info in my March 17, 2020 blog, “Make Sure Your Living Will Does What You Want.”

Second, at some point people will have to handle your stuff: your money, personal belongings, and all the resources you’ve gathered throughout your lifetime. Whether you have a lot of stuff, or a little, the reality is you have stuff and you want to make sure that it doesn’t create a big mess for the people you love.

If you think you don’t have enough assets to need to create an inventory, just look around you right now. All the artifacts of your life, even the phone or computer you’re using to read this, will have to be dealt with by someone when you’re no longer here.

Where’s your money? What about that retirement account you started years ago? Do you remember how to access it? There’s probably more you aren’t even thinking about right now. That’s why you need to do this. There’s currently between $49 and $80 billion dollars in government coffers across the United States and it’s there because families simply lost track of what their loved ones had.

If you don’t want your property to become lost to the government, now is the time to take action. Contact me and I will provide you with a Family Wealth Inventory & Assessment form free of charge.

The best thing you can do is create an inventory of what you have, where it is and how to access it. From there, you may have additional legal planning steps to take. However, you cannot know what those steps are without first creating an inventory of what you have, where it is, and how to access it.

Email me at eric@ericrubenlaw.com to request your free Family Wealth Inventory & Assessment form or go to www.ericrubenlaw.com and hit the Contact Eric button and fill out a consultation form. Take control of what you can.

Don’t Create Your Estate Plan Without a Qualified Attorney

Some people opt for do-it-yourself, or DIY, solutions in order to save time, money, and resources. While there are DIY legal service providers offering cheaper products than certain individual attorneys and law firms, some of those DIY services have been sued for violating the law.

Most people have no idea what the requirements are for a Will to be legitimate and avoid litigation or hostility among the beneficiaries. Anyone who drafts their own Will must bear in mind that the result of their efforts will occur AFTER their death. At that point, their voice has been forever silenced. If they prepare their Will on their own, it’s likely no one will be able to explain their intentions.

An estate planning lawyer provides more than technical expertise in drafting complicated documents. We have extensive experience in counseling clients in intimate decisions. For example, I’ve helped couples sift through various options in selecting a guardian for their minor children. That decision seems simple, but the ideal guardian candidate may have a less than ideal spouse, lack financial experience, or otherwise be unable or unwilling to serve. Spouses may disagree as to the choice of guardian. They may need advice to understand a guardian’s role. An estate planning lawyer plays an important role in these and many other estate planning discussions.

Even a “simple plan” isn’t that simple. An elderly person with two adult children, a house worth $300,000, and a bank account worth the same, thinks she’ll keep both children happy by dividing things equally. They draft a Will, leave the house to the son and the bank account to the daughter. After that person’s death, the children realize that their parent spent down the bank accounts to pay bills so there’s nothing left for the daughter. Who gets the house? What did the parent want?

People who draft their own Wills run the risk of using words, terms or descriptions that could void aspects of the Will. Different states have different rules. Some are more complicated than others, but the person drafting a Will should know them. For example, New York law creates a presumption that a Will is valid if it was executed under the supervision of an attorney. That alone shows the importance of using an attorney.

Births, Deaths, Marriage, Divorce and Incapacity are all events that may profoundly alter the desired disposition of an estate. Your estate attorney will know best how to deal with these life changing events. For all these reasons, the average person should proceed with caution in using DIY estate planning as a substitute for a proper, professionally drafted plan.

A few thoughts about legal issues and the Coronavirus.

There’s no way to summarize all the legal implications of the pandemic, but here are a few issues to consider.

Employers need to ensure they are taking actions in line with the latest guidance from the Centers for Disease Control and Prevention when determining which employees should be required or requested to self-quarantine. If an employer decides an employee cannot come into the workplace, the employer must ensure it remains in compliance with other laws that could come into play, such as the federal Family and Medical Leave Act and state/local paid sick time laws.

The FMLA requires employers with more than 50 employees within 75 miles of the company’s worksite to provide employees with job-protected, unpaid leave for certain medical and family reasons. Employees who take FMLA leave are entitled to receive the same health coverage from their employers as they were before taking leave.

Employers should have a plan in place in case employees are exposed to the coronavirus or diagnosed with it. Employees worried about symptoms they are experiencing, or are fearful of experiencing down the line if they remain in their workplace, should request their employers provide reasonable accommodations as required by law.

The cancellation and postponement of major conferences, trade shows and other large events will also generate legal action extending beyond the coronavirus pandemic. Courts will be dealing with untold numbers of disputes as to whether parties are excused from performing their contractual obligations during the pandemic. The litigation finance industry is also gearing up for a considerable amount of coronavirus-related activity. Additionally, a massive slowdown of the economy will generate even more activity in the bankruptcy cases.

For the moment, most courts in most jurisdictions are closing their doors to all but the most important cases. Those include criminal matters where people are waiting to be arraigned, protective orders, and other emergency matters such as child support enforcement. Attorneys should subscribe to email alert services (as I do) that advise them of the latest information regarding court hours, closures, and other important information. Even the U.S. Supreme Court announced that its March sitting of oral arguments would be postponed in keeping with public health precautions recommended in response to COVID-19.

I will do my best to keep you advised of developments via this blog and my Twitter feed.

Make sure your living will does what you want.

A living will is a document that advises others as to what measures, if any, you want taken to keep you alive when you are not otherwise able to communicate your wishes. It is meant to ensure that your wishes, not those of relatives or the state, are followed. It should minimize the amount of pain and difficulty for family members in the event you become incapacitated. In short, it’s a great way of taking care of people when you are physically not capable of telling them what you want. All 50 states recognize living wills in one form or another. However, less than 30% of adults in the United States have executed a living will.

The subject of Living Wills is made more complicated by the fact that each state has different laws governing end-of-life medical care documents and how they should be executed. They even have different definitions of what a “terminal condition” is. Some states provide statutory definitions. Other states require a doctor to certify that a patient’s condition is terminal before the living will can become effective. However, there can be problems if more than one doctor is consulted and they disagree on this very important issue.

As an example of the difficulties involved, in 2016, Pennsylvania facilities reported 29 cases where patients were resuscitated against their wishes. In 2 cases, people were NOT resuscitated despite their wishes. Additionally, surveys have indicated that many health care professionals misunderstood living will provisions.

Things get even more complicated when pregnancy is involved. Some states require a doctor to ignore a living will when the patient is pregnant. Obviously, you and your attorney need to know what the laws are in your state relative to pregnancy and living wills if that is an issue for you.

Hopefully you see that just filling out a form on the internet does not guarantee your wishes will be followed. All of the above information illustrates how crucial it is to consult a competent attorney when considering executing a living will to make sure that it is drafted correctly and in accordance with the applicable state laws.

Who will take care of your children when you die?

Whenever people talk about an estate plan, they picture their house, possessions, money, wills and even trusts. However, people with children under the age of 18 need to make sure that they consider who will be responsible for the daily care and welfare of those children.

Until a child is eighteen years old, they can't inherit property in their own name. Instead, an adult needs to manage that property until the child can manage it for themselves. According to some articles I’ve seen, up to 57 percent of Americans do not have a will and approximately 69 percent of parents have not named legal guardians for their children. So what is a guardian?

The guardian of your children is the person responsible for taking care of your children’s physical, emotional, and spiritual needs if you are unable to care for them. You want to make sure that, however you structure your estate plan, you name guardians for your minor children. And when you do, make sure to avoid the following mistakes.

Don’t name a married couple to act as guardians and fail to provide instructions in case the named couple divorces or suffers the death of one spouse. Make sure to name sufficient alternate guardians to serve if your first choice is unavailable.

Consider financial resources when deciding who should raise your children. Your guardian does not have to also be the financial decision maker for your kids. They should be the person who will make the best health care, education, housing, discipline, and care decisions for your kids. It is your responsibility to leave enough money behind to take care of your kids either through savings or life insurance; you can and should name someone other than the guardians of your children as guardians of the estate. Lastly, don’t forget to make short-term arrangements for the care of your minor children following your incapacity or death.

This is by no means a complete list of issues and you should absolutely take the time to consult with an attorney. While it can be difficult to consider these issues, once you make the proper arrangements to take care of your children, the peace of mind will be well worth your efforts.

Get a lawyer before you need one.

You don’t really think about developing a relationship with an attorney until the moment you need one. The truth is that an attorney is like an insurance policy. You don’t understand why you have one until you need one.

When a moment of need arises, there’s usually not a lot of time in which to adequately meet and interview the lawyer that best suits your needs. There are plenty of attorneys out there, but you may not know how to find them, how to review their credentials, and how to determine if that attorney will be a good fit for you and your issues. A gifted tax attorney may have no ability to negotiate a criminal matter. A lawyer who might be brilliant at handling immigration issues will most likely know nothing about bankruptcy. That’s why having an already existing relationship with an attorney you trust is so important.

It’s crucial to have a connection with a lawyer you trust before you need one. That way, when the need arises, you already have a trusted advisor. With any luck, your attorney will be able to handle whatever your particular problem is at that time. And when your attorney is not well suited to address the particular legal issues involved, a good attorney will have a network of reliable colleagues to whom they can refer you. That way you won’t waste precious time and money and can handle the situation as quickly and easily as possible.

If you have a trusted lawyer already, you’re ahead of the game. But if you don’t, how do you get one? First, a referral from someone you trust is valuable. Just like a contractor or a babysitter, if your friend has a good amount common sense, you can borrow it for yourself and trust their judgment.

Some people keep an attorney on retainer, paying a flat monthly fee for access to representation. This can make economic sense for people whose business and/or personal lives demand that level of involvement from a legal professional. Others believe they only need a lawyer during specific times of crisis.

The bottom line is that the best time to create a relationship with a lawyer is long before you need one. Don’t wait until the last minute. Whether it’s estate planning, business law, contracts, or any other legal issue, you’ll be glad you planned ahead.

Welcome to My Blog!

This blog will cover law, showbiz, publishing, and more. I want to entertain and inform you, and hopefully keep you from making any unnecessary mistakes. And since you’re most likely wondering what gives me the right to take up your time with my writing, here are my credentials.

In addition to having law degree, I am a member of the stage, film and TV actor unions (AEA and SAG-AFTRA) and have been for decades. I’ve appeared on the New York stage and regionally. I’ve done TV, commercials, print ads in newspapers and national magazines, and major motion pictures. I’ve produced independent films and off-Broadway plays. I’ve performed in several professional music groups and worked in recording studios. I’ve also appeared in live radio productions and have even been the voice talent in an exhibition at Philadelphia’s National Constitution Center.

I’ve managed and agented NY Times Bestselling authors, negotiating lucrative publishing deals with major publishers. As an attorney, I currently represent authors, actors, film-makers, and other creative types including an Oscar nominated documentary producer. I’ve lectured and appeared at numerous events from New York City, Dallas and Chicago, to Los Angeles and Seattle. Even Geneva Switzerland! I’ve been dipped deeply into the turbulent and exciting waters of showbiz.

I also have spent a significant amount of time in trial and appellate courts all over Pennsylvania, Massachusetts and New York. I’ve handled a wide variety of criminal cases. I’ve helped people deal with stupid mistakes, keeping some people out of jail and prevented others from getting deported for low-level crimes from years ago.

I’ve helped small business people grow their businesses. I’ve kept them from being taken advantage of by protecting their intellectual property and even assisted them in walking away from very bad deals.

Through these blog posts, I will do my best to share my experiences and thoughts on these subjects and more. Feel free to let me know your thoughts and thanks in advance for your support!