David L. Leon, PC Attorney (New York)

What are the job creation requirements for the EB-5 visa?

admin — Mon, 04 Jul 2011 14:46:03 +0000

In addition to the monetary investment, an EB-5 applicant will need to create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.

The qualified employees do not include the immigrant investor; spouse, or children of the applicant; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who a person who is not authorized to work in the United States.

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I am a foreign national. I would like to invest in the US. What kind I do?

admin — Mon, 04 Jul 2011 14:43:02 +0000

A foreign national, who is not otherwise ineligible to enter the United States, can apply for an EB-5 a/k/a “investor’s visa.”

If the investment is in a Targeted Employment Area (i.e. a rural area or an area experiencing unemployment of at least 150 percent of the national average rate) then the investment can be as low as USD$500,000. Otherwise, a $1 million investment

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What is a visa? What are the different kinds of visas?

admin — Mon, 04 Jul 2011 14:33:38 +0000

A visa is simply a written permission to enter a country.

There are two main types of visas:

immigrant visas — for people who wish to reside in the country on a permanent basis.

non-immigrant visas — for people who wish to come in to the country temporarily.

Having a U.S. visa allows you to travel to a port of entry, airport or land border crossing, and request permission of the Department of Homeland Security (DHS), Customs and Border Protection (CBP) inspector to enter the U.S.

While having a visa does not guarantee entry to the U.S., it does indicate a consular officer at a U.S. Embassy or Consulate abroad has determined you are eligible to seek entry for that specific purpose.

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Federal government crackdown on internet gambling

admin — Mon, 25 Apr 2011 03:38:57 +0000

From the New York Times…

Three popular internet gambling sites, Full Tilt Poker, PokerStars and Absolute Poker, are the target of the US government crackdown.

See the entire story here.

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Under Medicaid, what is a medical necessity?

admin — Sun, 29 Aug 2010 00:55:49 +0000

Medically Necessary (or Medical Necessities) per the Act are:

• Reasonably necessary to prevent illness or medical conditions, or provide early screening, interventions, and/or treatments for conditions that cause suffering or pain, cause physical deformity or limitations in function, threaten to cause or worsen a handicap, cause illness or infirmity of a recipient, or endanger life;

• Provided at appropriate locations and at the appropriate levels of care for the treatment of clients’ conditions;

• Consistent with health-care practice guidelines and standards that are issued by professionally-recognized health-care organizations or governmental agencies;

• Consistent with the diagnoses of the conditions; and

• No more intrusive or restrictive than necessary to provide a proper balance of safety, effectiveness, and efficiency.

Source: www.hhsc.state.tx.us

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What is hospice care? Or comfort care?

admin — Sun, 29 Aug 2010 00:55:18 +0000

Hospice care refers to a change in the style of treatment of a disease. Typically, hospice care refers to medical treatment or therapy in light of the impending death of a patient. The goal of hospice is to help terminally ill patients with “comfort care.”

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What is an ADL?

admin — Sun, 29 Aug 2010 00:54:38 +0000

In insurance and Medicaid/Medicare lingo, ADL is often used as an acronym for Activities of Daily Living. Activities of Daily Living are considered essential to daily personal duties of self maintenance. These duties including personal hygiene, getting dressed, using the restroom, and eating. Normally, these activities are placed on a checkbox style grid, and an applicable insurance policy will pay on an amount based upon the number of ADLs that a subscriber can or cannot perform on a daily basis.

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What is the difference between Medicare and Medicaid?

admin — Sun, 29 Aug 2010 00:54:00 +0000

Both are federal programs that help pay for medical needs.

However, Medicare, which is applied for at the Social Security Office, is for: People 65 and over, people of any age who have kidney failure or long term kidney disease and/or people who are permanently disabled and cannot work. There is no income requirements for Medicare.

Medicaid is for low income individuals including: pregnant women, children under the age of 19, people 65 and over, the blind, disabled and/or who need nursing home care. There are strict financial and income guidelines that have to be adhered to in order to qualify for Medicaid assistance.

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What is an escheat?

admin — Fri, 13 Aug 2010 03:43:38 +0000

An escheat occurs when a property’s ownership cannot be determined. An escheat vests title in the property with the state.

Section 200, NY Abandoned Property

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What is POD or TOD? What is a Totten Trust?

admin — Thu, 15 Jul 2010 13:35:55 +0000

POD is “Pay on Death” and TOD is “transfer on death.” These accounts will designate a person to whom the account is given upon the death of the account holder. These may also be called a “Totten Account” or a “Totten Trust.”

For example, Bill has an account at Milo Bank. The account is POD Steve. Upon Bill’s death, Steve may show Milo Bank a copy of Steve’s death certificate. Upon presentment, Milo Bank will pay the contents of Steve’s account to Bill, because Bill was the listed beneficiary of Steve’s POD account.

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What is the slayer’s rule?

admin — Thu, 15 Jul 2010 13:21:07 +0000

The slayer’s rule is a doctrine of law that prevents a murderer from benefitting from the murder. An example of this is New York’s EPT §4-1.6, which applies to joint tenant who murder one another. Here is a scenario:

Steve and Bill own a joint account at Milo Bank. Under normal circumstances, if Steve died first, then Bill would get the account. If Bill died first, then Steve would get the account. However, if Steve is convicted of murdering Bill, then the slayer’s rule would prevent Steve from collecting the joint account.

N.Y. EPT. LAW § 4-1.6 : NY Code – Section 4-1.6

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A child died without a will. The parent had abandoned the child. Can that parent still inherit from the child?

admin — Thu, 15 Jul 2010 12:52:35 +0000

(a) No distributive share in the estate of a deceased child shall be
allowed to a parent if the parent, while such child is under the age of
twenty-one years:
(1) has failed or refused to provide for the child or has abandoned
such child, whether or not such child dies before having attained the
age of twenty-one years, unless the parental relationship and duties are
subsequently resumed and continue until the death of the child; or
(2) has been the subject of a proceeding pursuant to section three
hundred eighty-four-b of the social services law which:
(A) resulted in an order terminating parental rights, or
(B) resulted in an order suspending judgment, in which event the
surrogate’s court shall make a determination disqualifying the parent on
the grounds adjudicated by the family court, if the surrogate’s court
finds, by a preponderance of the evidence, that the parent, during the
period of suspension, failed to comply with the family court order to
restore the parent-child relationship.
(b) Subject to the provisions of subdivision eight of section two
hundred thirteen of the civil practice law and rules, the provisions of
subparagraph one of paragraph (a) of this section shall not apply to a
biological parent who places the child for adoption based upon:
(1) a fraudulent promise, not kept, to arrange for and complete the
adoption of such child, or
(2) other fraud or deceit by the person or agency where, before the
death of the child, the person or agency fails to arrange for the
adoptive placement or petition for the adoption of the child, and fails
to comply timely with conditions imposed by the court for the adoption
to proceed.
(c) In the event that a parent or spouse is disqualified from taking a
distributive share in the estate of a decedent under this section or
5-1.2, the estate of such decedent shall be distributed in accordance
with 4-1.1 as though such spouse or parent had predeceased the decedent.

N.Y. EPT. LAW § 4-1.4 : NY Code – Section 4-1.4:

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Who can make a will under New York law?

admin — Thu, 15 Jul 2010 04:57:25 +0000

Anyone over the age of 18, who is of sound mind and memory may make a will under New York law.

N.Y. EPT. LAW § 3-1.1 : NY Code – Section 3-1.1:

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What is “issue” as used in a will?

admin — Thu, 15 Jul 2010 04:49:35 +0000

(a) Unless a contrary intention is indicated:
(1) Issue are the descendants in any degree from a common ancestor.
(2) The terms “issue” and “descendants”, in subparagraph (1), include
adopted children.

N.Y. EPT. LAW § 1-2.10 : NY Code – Section 1-2.10: Issue

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What is a fiduciary?

admin — Thu, 15 Jul 2010 04:47:30 +0000

A fiduciary is one who can act on behalf of another, typically as a personal representative. A fiduciary duty means that the person acting as a fiduciary must put the other person’s interests above his or her own.

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What is a codicil?

admin — Thu, 15 Jul 2010 04:40:56 +0000

A codicil is a change to an otherwise valid will. A codicil is a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.

N.Y. EPT. LAW § 1-2.1 : NY Code – Section 1-2.1: Codicil

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What is a work for hire? Or a work made for hire?

admin — Sat, 26 Jun 2010 23:08:08 +0000

A “work for hire” (also known as a “work made for hire”) is doctrine of intellectual property law governing ownership of material. The premise is that if a person or company hires another to create something under a work for hire arrangement, the person who hired the creator is the owner of the work. For example, let’s suppose Company A hires Joe Programmer to write a piece of software under a work for hire arrangement. The end result is that Company A owns the software, Joe does not.

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What is a license? What is a royalty?

admin — Sat, 26 Jun 2010 23:07:35 +0000

In order to legally use the intellectual property of another, the owner of the intellectual property needs to give permission. Such permission is called a “license.” The payment for the license is typically the “royalty.”

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What is a trade secret?

admin — Sat, 26 Jun 2010 23:07:03 +0000

A trade secret is a type of intellectual property which gives a competitive advantage to the knowledge holder, and in which the knowledge holder takes steps to keep secret.

Common examples of trade secrets include secret customer lists, secret recipes, etc.

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What is a copyright?

admin — Sat, 26 Jun 2010 23:05:21 +0000

A copyright is a legal protection afforded to an author of a creative work. For example, a photograph, drawing, or story could be subject to copyright protection. Although copyright protection is automatically afforded to author upon completion of the work, many additional rights are available if the work is registered shortly after creation. Additionally, registration is a requirement before filing a suit for infringement in federal court.

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What is trademark infringement?

admin — Sat, 26 Jun 2010 23:04:35 +0000

Trademark infringement occurs when a trademark is being used without permission. A trademark infringement or dillution suit may be necessary in order to protect the mark. (Failure to protect the mark can result in the mark being lost.)

If your mark is “merely descriptive” of your product, then you may not not be able to register your mark (there is still a supplemental register, though).

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What is a trademark?

admin — Sat, 26 Jun 2010 22:59:25 +0000

A trademark is used to designate where particular goods or services are from. Typically, a trademark is a logo, graphic or short phrase used to identify a product or company. For example, a Nike “swoosh” symbol is a trademark stating that a particular product is made by or associated with Nike, Inc.

Trademarks may be obtained at common law, and they may be registered with the United States Patent and Trademark Office. One can obtain a common law trademark by using it in interstate commerce.

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How can I patent my ideas?

admin — Sat, 26 Jun 2010 22:56:24 +0000

Ideas, by themselves, cannot be protected by a patent. In order to apply for a patent, the patent must be reduced to tangible form. Reduced to a tangible form may include a writing, software or drawing. The idea must also be new (novel), not obvious, and it has to serve a purpose.

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What is a patent?

admin — Sat, 26 Jun 2010 22:52:20 +0000

A patent is a mechanism to protect an idea, invention, method or design. Patents are either new creations or modifications to existing ideas. In order to be subject to patent protection, the idea must be new, and the it has to be “non-obvious.”

Prior to filing a patent application with the United States Patent and Trademark Office, it is recommended that a patentability search be conducted.

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My child died in New York, without a will. The other parent abandoned the child, can the other parent still inherit?

admin — Mon, 31 May 2010 01:50:45 +0000

Possibly. New York Estate Powers and Trust law § 4-1.4 controls this situation. Under this statute, a parent can be disqualified from inheriting from a child if such parent “has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child…”

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What happens if someone dies in New York without a will?

admin — Mon, 31 May 2010 01:12:00 +0000

The intestacy laws of the State of New York apply in situations where someone dies in New York without a will. The intestate laws of decent and distribution are complex, but here is the gist:

1. If there is a spouse, but no children, then the spouse would inherit all.
2. If there is both a spouse and children (of the deceased), then the spouse would receive $50,000, plus one half of the property. The balance would go to the children of the deceased.
3. If there are children, but no spouse, then the children would share equally.
4. If there is no spouse or children, then the surviving parents would receive the estate.
5. If there are no children, spouse or parents, then the aunts and uncles would receive the estate.

The list continues with cousins, etc.

Sec. 4-1.1 of the Estates, Powers and Trust Code

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If someone dies in New York without a will, where does the property go?

admin — Mon, 03 May 2010 02:47:02 +0000

(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the
residue to the spouse, and the balance thereof to the issue by
representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the
surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the
issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as
hereinafter defined), and no spouse, issue, parent or issue of parents,
one-half to the surviving paternal grandparent or grandparents, or if
neither of them survives the decedent, to their issue, by
representation, and the other one-half to the surviving maternal
grandparent or grandparents, or if neither of them survives the
decedent, to their issue, by representation; provided that if the
decedent was not survived by a grandparent or grandparents on one side
or by the issue of such grandparents, the whole to the surviving
grandparent or grandparents on the other side, or if neither of them
survives the decedent, to their issue, by representation, in the same
manner as the one-half. For the purposes of this subparagraph, issue of
grandparents shall not include issue more remote than grandchildren of
such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent,
issue of parents, grandparent, children of grandparents or grandchildren
of grandparents, one-half to the great-grandchildren of the paternal
grandparents, per capita, and the other one-half to the
great-grandchildren of the maternal grandparents, per capita; provided
that if the decedent was not survived by great-grandchildren of
grandparents on one side, the whole to the great-grandchildren of
grandparents on the other side, in the same manner as the one-half.
(b) For all purposes of this section, decedent’s relatives of the half
blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death
but born alive thereafter, take as if they were born in his or her
lifetime.
(d) The right of an adopted child to take a distributive share and the
right of succession to the estate of an adopted child continue as
provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this
section is in lieu of any right of dower to which such spouse may be
entitled.

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I was left a property under a New York will. After the testator died, but before the property was given to me, it was destroyed. Who gets the insurance money?

admin — Mon, 03 May 2010 01:29:15 +0000

To the extent available, the insurance proceeds would be paid to the beneficiary whose gift was destroyed.

EPT §3-3.45 provides:

Where insurance proceeds from property which was the subject of a specific disposition are paid after the testator’s death, such proceeds, to the extent received by the personal representative, are payable by him to the beneficiary of such disposition; and such proceeds retain the character of a specific disposition for all other purposes, including 12-1.2 and 13-1.3.

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I was left a house under a New York will. Before the testator died, s/he became incompetent and a guardian took over. The guardian sold his house before he died. What happens now?

admin — Mon, 03 May 2010 01:26:56 +0000

Assuming that the testator was competent to make the will, and you can trace the proceeds from the sale of the house, then you would be entitled to the remaining proceeds.

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I left my house to someone under my will. I've since mortgaged the house. What happens?

admin — Mon, 03 May 2010 01:21:52 +0000

The beneficiary will receive the house, subject to the mortgage.

EPT 3-4.2

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How do I revoke a New York will that I've written?

admin — Mon, 03 May 2010 01:19:57 +0000

There are several ways to revoke a will in New York. The two most common:

1. Write a new will, and in the new will, mention that you have revoked your prior will.

2. Tear up or destroy your old will.

EPT 3-4.1

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I want to leave my house to someone under the will, but there is a mortgage on it. Will the recipient have to pay the mortgage?

admin — Mon, 03 May 2010 01:11:55 +0000

In most cases, yes, the mortgage will follow the house. However, if the will specifically says that the house should be paid off before being transferred to the beneficiary, then the executor should use other estate assets to pay off the mortgage to the house.

EPT 3-3.6

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I'm afraid of someone contesting a will after I write it. Can I cut someone out of a New York will if they contest it?

admin — Mon, 03 May 2010 01:08:47 +0000

Yes, this is called an “in terrorem” clause in a will. An in terrorem clause typically states that should a beneficiary contest the will, then the beneficiary’s gift under the will lapses. There are exceptions to the rule under EPT 3-3.5, such as probable claims that a will is a forgery, or that the will was revoked.

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What does "per stirpes" mean?

admin — Mon, 03 May 2010 01:04:53 +0000

Per stirpes means “by the stripes.” Typically, in an estate planning context, a per stirpes distribution means that if a testator gives a gift to a beneficiary, but the beneficiary dies before the testator, then the gift shall go to the heirs of the beneficiary.

An example:

Linus makes a will leaving property to 1/2 Charlie and 1/2 Sophia. Charlie has two children, Lola and Paloma. Sophia has no children. Charlie dies first, Linus second. Linus’s gift can’t go to Charlie, because he’s already deceased. Linus’s gift to Charlie would go to Charlie’s children (1/4 to Lola and 1/4 to Sophia) and the remaining half would go to Paloma.

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My family member left property to a sibling in a will written in New York. The sibling died before the testator. What happens to that sibling's share?

admin — Mon, 03 May 2010 00:55:09 +0000

This is a common problem. If an heir predeceases a testator, then the gift may lapse, in some instances. You would need to see the specific language of the will. If the will is silent, then rhis gets more complicated if the heir is a sibling to the testator, thanks to EPT (§3-3.3):

If the will was written BEFORE 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes.

If the will was written ON or AFTER 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation.

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What are the basics of a will in New York?

admin — Mon, 03 May 2010 00:50:17 +0000

A will is a legal document in which a person (called the testator) gives instructions to another person or entity (called an executor) to dispose of property (called the estate) by giving it to various people or entities (called beneficiaries) upon the death of the testator.

Upon the death of the testator, the executor will file the will with the court (called probate) and ask the judge for authority to carry out the wishes contained in the will.

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I am going to receive property under a New York will. Can I be a witness to the will?

admin — Mon, 03 May 2010 00:44:33 +0000

Yes, but it’s a very, very bad idea. If the will cannot otherwise be proven without the witnesses’s testimony, then the gift to the witness ay either be voided, or reduced to whatever the witness would have received had there been no will.

(EPT §3-3.2)

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Can I handwrite my own will in New York, and avoid having to use witnesses, etc.?

admin — Mon, 03 May 2010 00:40:42 +0000

Under very limited circumstances, you can do a handwritten (holographic) will in New York. In New York, you can do a holographic will without the necessary formalities required by Sec. 3-2.1 of the code if you are:

(1) A member of the armed forces of the United States while in actual
military or naval service during a war, declared or undeclared, or other
armed conflict in which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in
actual military or naval service during such war or other armed
conflict.
(3) A mariner while at sea.

However, such wills will later become invalid after the person comes home from war, returns from sea, etc.

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Who can make a will under New York law?

admin — Sun, 02 May 2010 23:52:36 +0000

New York requires that a person making a will must be (1) over the age of 18 years and (2) be of sound mind and memory.

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Welcome to the New York law office of David L. Leon, PC

admin — Wed, 16 Dec 2009 05:23:22 +0000

Thank you for visiting the web page of David L. Leon, PC. We hope you will find some useful information while you are here. If there is a topic you would like for us to address, or you have some questions or comments about our site, please feel free to contact us.

Also, if you or someone you know needs legal advice, please contact us.

–Dave Leon

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