Monday, April 23, 2012
Not gone - just not posting here!
At Reda | Ciprian | Magnone, LLC, we are pleased to present a redesign of our firm's website. That redesign incorporates the ability to blog there on legal topics. As such, if you want to read about our firm and the thoughts of our attorney's on various topics of Illinois law, please come over and check us out at chicagoeviction.com or illinois-attorney.com
Thursday, October 20, 2011
An interesting story on electronic assets and estate planning
The article comes from the BBC in England, but reinforces the points I have made on this blog about the need to consider digital assets in an estate plan.
Monday, August 1, 2011
Are attorneys 24/7?
As some of my readers may know, my office was the victim of the extreme flooding that has happened in the northwest suburbs over the past few weeks. Our office itself was unharmed (we're on the 4th floor!), but the basement of the building we are located in was flooded and is without power for at least the next week.
What to do? Well, we went into emergency action mode. We got everything up and running. Faxes are forwarded to Mr. Reda's house. Our computer server was hosted remotely so we can all access the office from home. We all communicate via email and text. Last, but probably most important, our phones were forwarded to the home of our paralegal. She has been dutifully answering the phones without the benefit of our voicemail system.
She remarked that she took one call over the weekend from a caller looking for an attorney. She explained to them that the office was closed - after all, it was the weekend. The caller, irritated, said "I thought attorneys were 24/7". How far we have come from the days when attorneys got off work at noon on a Friday or took a week to respond to a letter.
These days, everything is immediate. Fax, email, phone. Its all fast. And it takes away from an attorney's real ability to help a client... by THINKING. A monkey can whip up a form. Heck, Legalzoom can give you a form. Is it the form you need? Maybe. Maybe not.
As for attorneys, we have lives outside of work. Yes, we strive to make our client's problems our own and to help our clients. We respond to calls quickly (usually within one business day). But no, we are not 24/7. For that, go to Wal-Mart.
What to do? Well, we went into emergency action mode. We got everything up and running. Faxes are forwarded to Mr. Reda's house. Our computer server was hosted remotely so we can all access the office from home. We all communicate via email and text. Last, but probably most important, our phones were forwarded to the home of our paralegal. She has been dutifully answering the phones without the benefit of our voicemail system.
She remarked that she took one call over the weekend from a caller looking for an attorney. She explained to them that the office was closed - after all, it was the weekend. The caller, irritated, said "I thought attorneys were 24/7". How far we have come from the days when attorneys got off work at noon on a Friday or took a week to respond to a letter.
These days, everything is immediate. Fax, email, phone. Its all fast. And it takes away from an attorney's real ability to help a client... by THINKING. A monkey can whip up a form. Heck, Legalzoom can give you a form. Is it the form you need? Maybe. Maybe not.
As for attorneys, we have lives outside of work. Yes, we strive to make our client's problems our own and to help our clients. We respond to calls quickly (usually within one business day). But no, we are not 24/7. For that, go to Wal-Mart.
Wednesday, July 20, 2011
Hooray! Private residential loans are now allowed again!
Last year, the Illinois Residential Mortgage License Act of 1987 was amended to, among other things, remove the exemption from mortgage licensing from private persons or entities who originate less than three residential mortgage loans in any given year. The law effectively made it illegal for a dad to give a 5% home mortgage loan to his son. The law also made it illegal to sell a property by way of articles of agreement for deed.
Good news! The State of Illinois has once again amended the Illinois Residential Mortgage License Act of 1987 and as of July 14, 2011, the exemption allowing limited private residential loans has been re-added as follows:
This should help out with private transactions on hard to move properties and opens up one additional area of possibility - the articles of agreement for deed aka installment land contract - for sellers looking to move a parcel of real property.
Good news! The State of Illinois has once again amended the Illinois Residential Mortgage License Act of 1987 and as of July 14, 2011, the exemption allowing limited private residential loans has been re-added as follows:
205 ILCS 635/1-4(d)(1.8) Any person or entity that does not originate mortgage loans in the ordinary course of business, but makes or acquires residential mortgage loans with his or her own funds for his or her or its own investment without intent to make, acquire, or resell more than 3 residential mortgage loans in any one calendar year.
This should help out with private transactions on hard to move properties and opens up one additional area of possibility - the articles of agreement for deed aka installment land contract - for sellers looking to move a parcel of real property.
Friday, June 3, 2011
What's the rush when it comes to probate?
My partner, Ed Reda, provides some thoughts on probate and post-death activity:
We often get calls from people whose loved one has just passed away. And by “just passed away” I mean only hours earlier. Frequently they are very concerned about what steps must be taken - immediately - now that their loved one has died. My standard answer is that the only thing that needs to be done immediately is to call the undertaker.
This perception that something needs to be done almost immediately is a vestige of the old Illinois Inheritance Tax, which was repealed in 1981. In the days of the Illinois Inheritance Tax, all assets of a decedent were automatically frozen until a written release could be obtained from the Illinois Attorney General. It wasn’t an onerous or time consuming task to obtain the release, but, people did not want their loved one’s assets tied up - for even a few days. So, some attorneys would counsel their clients to get to the bank right away and close all of grandma’s bank accounts before her obituary appeared in the paper or the news of her death had become public.
The Illinois Probate Code does require that all original copies of a decedent's will be filed with the Clerk of the Circuit Court within thirty days after the date of death. This requirement does not mean a probate estate must be filed, but only that the will itself be brought to the court and turned over to its repository of Last Wills for safekeeping.
The son of one of my oldest clients reminded me of the day his father died. Notwithstanding the fact that I never counseled people to rush to the bank, his mother insisted that they go to the bank and close her husband’s bank accounts, even though her husband had died just minutes earlier. Upon entering the bank that morning, the son told me that the bank guard greeted his mother with “Good morning Mrs. Clay. How’s Mr. Clay today?” Her answer was a classic – “Not good. He’s not feeling well at all today.”
So, when someone close to you dies, take your time to plan their funeral and mourn your loss. There seldom is anything of a legal nature that can’t wait until after the funeral.
We often get calls from people whose loved one has just passed away. And by “just passed away” I mean only hours earlier. Frequently they are very concerned about what steps must be taken - immediately - now that their loved one has died. My standard answer is that the only thing that needs to be done immediately is to call the undertaker.
This perception that something needs to be done almost immediately is a vestige of the old Illinois Inheritance Tax, which was repealed in 1981. In the days of the Illinois Inheritance Tax, all assets of a decedent were automatically frozen until a written release could be obtained from the Illinois Attorney General. It wasn’t an onerous or time consuming task to obtain the release, but, people did not want their loved one’s assets tied up - for even a few days. So, some attorneys would counsel their clients to get to the bank right away and close all of grandma’s bank accounts before her obituary appeared in the paper or the news of her death had become public.
The Illinois Probate Code does require that all original copies of a decedent's will be filed with the Clerk of the Circuit Court within thirty days after the date of death. This requirement does not mean a probate estate must be filed, but only that the will itself be brought to the court and turned over to its repository of Last Wills for safekeeping.
The son of one of my oldest clients reminded me of the day his father died. Notwithstanding the fact that I never counseled people to rush to the bank, his mother insisted that they go to the bank and close her husband’s bank accounts, even though her husband had died just minutes earlier. Upon entering the bank that morning, the son told me that the bank guard greeted his mother with “Good morning Mrs. Clay. How’s Mr. Clay today?” Her answer was a classic – “Not good. He’s not feeling well at all today.”
So, when someone close to you dies, take your time to plan their funeral and mourn your loss. There seldom is anything of a legal nature that can’t wait until after the funeral.
Thursday, May 5, 2011
Facebook posts lead to criminal charges
If you follow this blog, you may have seen my articles about estate planning and the internet. In those posts, I have indicated that we are at an interesting time where law and technology are intersecting and the law is adjusting, albeit slowly, to new technology. The Chicago Tribune published a May 4, 2011 story about a woman who was charged with aggravated battery after getting into a bar fight. This is just one more example of how the legal world is reacting to the online world. Users of social media need to be cautious about what they say and who they say it to. Understanding privacy controls is of extreme importance.
This advice does not extend only to criminal law. I have heard anecdotal evidence of employers who scan thier employee's facebook pages to determine what they are doing on their "sick days". Mortgage lenders have reportedly reviewed social media sites to determine if a borrower's "hard luck" story is true or false. Personal Injury defense attorneys even check social media sites to see if people who claim injuries are, in fact, actually injured. Social media is a double edged sword. It opens up the world to the user and, at the same time, it tracks the user's every word... or admission.
This advice does not extend only to criminal law. I have heard anecdotal evidence of employers who scan thier employee's facebook pages to determine what they are doing on their "sick days". Mortgage lenders have reportedly reviewed social media sites to determine if a borrower's "hard luck" story is true or false. Personal Injury defense attorneys even check social media sites to see if people who claim injuries are, in fact, actually injured. Social media is a double edged sword. It opens up the world to the user and, at the same time, it tracks the user's every word... or admission.
Wednesday, April 27, 2011
Interesting times for Illinois lawyers
The Rules Committee of the Illinois Supreme Court is seeking comments on a proposal to allow jurors to question witnesses in civil trials. The Supreme Court of Illinois in a news release today indicated that anyone wanting to testify at a public hearing needs to let the Committee know in writing by May 13, 2011 and anyone wanting to offer written comments needs to do so by May 6, 2011.
Such a proposal is a sea-change in the way litigation would be done in Illinois. Currently, jurors are not allowed to question a witness. The Supreme Court release indicates that about half of the states in the US allow jurors to question witnesses.
A hearing will be held on the topic on May 20, 2011 at 10am in Room C-500 at 160 N. LaSalle, Chicago.
The proposed amendment can be found here
Such a proposal is a sea-change in the way litigation would be done in Illinois. Currently, jurors are not allowed to question a witness. The Supreme Court release indicates that about half of the states in the US allow jurors to question witnesses.
A hearing will be held on the topic on May 20, 2011 at 10am in Room C-500 at 160 N. LaSalle, Chicago.
The proposed amendment can be found here
Monday, April 25, 2011
Time to Make a Will?
My partner, and the smartest attorney I know, Ed Reda, penned today's blog post about the "right time" to make an estate plan. Is it ever too late to make a will?
At various times in our life, most of us have thoughts about the need to make a will. Most of us put that task off by telling ourselves we will get to it later. But is there a time when it is too late to make a will? Surprisingly, the answer is a resounding “Yes.” Here is an actual fact pattern that happened to me today.
I received a call from a fellow we will call Ralph indicating that his friend, Dave, was in Resurrection Hospital and wanted to make a will. I asked Ralph what was Dave’s medical condition and he replied that Dave had Stage IV lung cancer and was receiving hospice care. I asked Ralph why he was calling me instead of Dave. He replied “Dave is really weak and can’t hold the phone. He asked that I get an attorney for him.”
The red flags popped up all over. First, any time someone other than the client calls to engage your services, an attorney should proceed with caution. Does this person have an ulterior motive? Why isn’t the client calling? Ralph’s response to my question didn’t put me at ease. Any time an attorney is called to a hospital to do a will, there is a stronger than normal chance that some heir or relative, disappointed in the terms of the will, can challenge the competence or capacity of the client after his or her death. The reason is obvious–people in hospitals are not well, and therefore, oftentimes not thinking clearly or in charge of their emotions.
Finally, wills prepared and signed shortly before a person’s death are also often subject to challenge. Once again, a person days from their death is likely very sick and oftentimes, because of either their medical condition or the medications they are receiving, not completely lucid. When the client is in hospice care, suffering with Stage IV cancer and too weak to hold a phone, the risks of the will being challenged, and the attorney being criticized for preparing it (or worse, being sucked into litigation) increase exponentially.
For all of the above reasons, I declined to accept this assignment. I feel somewhat badly for Ralph’s friend, since he may die without a will, or without a will that expresses his current feelings. But, he has brought that problem on to himself. A person truly can wait too long to make a will.
At various times in our life, most of us have thoughts about the need to make a will. Most of us put that task off by telling ourselves we will get to it later. But is there a time when it is too late to make a will? Surprisingly, the answer is a resounding “Yes.” Here is an actual fact pattern that happened to me today.
I received a call from a fellow we will call Ralph indicating that his friend, Dave, was in Resurrection Hospital and wanted to make a will. I asked Ralph what was Dave’s medical condition and he replied that Dave had Stage IV lung cancer and was receiving hospice care. I asked Ralph why he was calling me instead of Dave. He replied “Dave is really weak and can’t hold the phone. He asked that I get an attorney for him.”
The red flags popped up all over. First, any time someone other than the client calls to engage your services, an attorney should proceed with caution. Does this person have an ulterior motive? Why isn’t the client calling? Ralph’s response to my question didn’t put me at ease. Any time an attorney is called to a hospital to do a will, there is a stronger than normal chance that some heir or relative, disappointed in the terms of the will, can challenge the competence or capacity of the client after his or her death. The reason is obvious–people in hospitals are not well, and therefore, oftentimes not thinking clearly or in charge of their emotions.
Finally, wills prepared and signed shortly before a person’s death are also often subject to challenge. Once again, a person days from their death is likely very sick and oftentimes, because of either their medical condition or the medications they are receiving, not completely lucid. When the client is in hospice care, suffering with Stage IV cancer and too weak to hold a phone, the risks of the will being challenged, and the attorney being criticized for preparing it (or worse, being sucked into litigation) increase exponentially.
For all of the above reasons, I declined to accept this assignment. I feel somewhat badly for Ralph’s friend, since he may die without a will, or without a will that expresses his current feelings. But, he has brought that problem on to himself. A person truly can wait too long to make a will.
Thursday, March 31, 2011
Reminder on Capital Gain Tax Law Change for Primary Residence
A change in the Housing Assistance Tax Act of 2008 changed the rules regarding capital gains on the sale of a primary residence. Under the prior system, homeowners were able to exclude up to $250,000 ($500,000 for married couples) worth of capital gains on the sale of a primary residence. One of the rules in order to qualify for the capital gain exclusion was that a property owner had to use the real estate as a principal residence for at least two of the previous five years. As such, homeowners with rental and vacation property began to sell their primary residence without capital gain and then moved into their second home or rental property so that they could avoid capital gain upon sale of that property also.
The Housing Assistance Act of 2008 sought to close that loophole. The new law will allow the exclusion of a portion of the capital gain based upon a new formula that seeks to take into account years that the real estate was not used as a primary residence. Use of the real estate as a primary residence has been termed "qualifying use" and use of the real estate for other purposes is called a "non-qualifying use".
Beginning on January 1, 2009, capital gains are determined based upon the following formula:
(Time of non-qualifying use after 1-1-09) divided by (time of total ownership) = % of exclusion
One benefit here is that non-qualifying use for periods before January 1, 2009 do not count for purposes of making the calculation. Obviously, properties that have been used exclusively as a primary residence will be eligible to exclude the entire gain up to $250,000 ($500,000 for married couples).
As a result, property owners who have held non-primary residence real estate for long periods of time can still take advantage of major tax savings by converting non-qualified property into qualified property (because all non-qualifying time prior to 1-1-09 is not included). It makes sense to evaluate capital gains strategy based on this law.
Friday, March 11, 2011
A small timeout to protest
Governor Quinn imposes internet sales tax. Really?
No, Gov. Quinn, really?
No, Gov. Quinn, really?
Thursday, January 20, 2011
For you doctor's, dentists, and other service professionals out there... time to register your LLC
As of January 14, 2011, the Illinois Department of Financial and Professional Regulation (IDFPR) is requiring Limited Liability Companies formed by dentists, doctors, social workers, clinical professional counselors, social workers, veterinarians, clinical psycologists, marriage and family therapists, or any other profession licensed by the IDFPR to register with the Department's Division of Professional Regulation.
Tuesday, January 18, 2011
Other Digital Assets and Estate Planning
Here is part seven in my series on digital assets and estate planning. Interestingly, the rest of the world is picking up on this topic. Here is a recent article from the new york times on digital assets.
There are a number of other types of digital assets that deserve consideration when planning an estate. These can be web site accounts or actual assets in digital form. Here is a brief general survey.
There are a number of other types of digital assets that deserve consideration when planning an estate. These can be web site accounts or actual assets in digital form. Here is a brief general survey.
Thursday, January 6, 2011
State of Illinois Security Deposit Rate Set
Okay folks, the interest rate for security deposits on properties covered by the State of Illinois Security Deposit Interest Act (generally, 25 or more units) for 2011 is 0.195%.
Once again, this rate is greater than the Chicago rate, so Chicago landlords governed by both the Illinois Security Deposit Interest Act and the Chicago Residential Landlord Tenant Ordinance should use the Illinois rate for 2011 rentals.
Once again, this rate is greater than the Chicago rate, so Chicago landlords governed by both the Illinois Security Deposit Interest Act and the Chicago Residential Landlord Tenant Ordinance should use the Illinois rate for 2011 rentals.
Monday, January 3, 2011
City of Chicago Sets 2011 Security Deposit Interest Rate
The City of Chicago City Comptroller, Steven J. Lux, has released the security deposit interest rate for the coming year. The rate is determined by the City Comptroller based upon the average rates of interest as of 12-31-10 of a number of types of Chase Bank accounts.
The rate to be applied pursuant to 5-12-080 of the Chicago Residential Landlord Tenant Ordinance for leases governed by the periods from January 1, 2011 through December 31, 2011 is 0.073 percent.
I will publish the State of Illinois rate as soon as I learn it. Keep in mind, last year the State of Illinois rate was higher than the City of Chicago rate, so landlords governed by both the City of Chicago and State of Illinois law should have used the State of Illinois rate.
The rate to be applied pursuant to 5-12-080 of the Chicago Residential Landlord Tenant Ordinance for leases governed by the periods from January 1, 2011 through December 31, 2011 is 0.073 percent.
I will publish the State of Illinois rate as soon as I learn it. Keep in mind, last year the State of Illinois rate was higher than the City of Chicago rate, so landlords governed by both the City of Chicago and State of Illinois law should have used the State of Illinois rate.
Thursday, December 30, 2010
Renting Versus Buying in a Real Estate Down Market
I met yesterday with two of my favorite clients. They recently closed on and moved into a new home. They were fortunate that they were not required to sell their current condo in order to qualify to purchase their new house.
The problem? After many months on the market, their home has not sold. They came to me looking for advice about the possibility of renting out their condo. They were smart to ask.
The problem? After many months on the market, their home has not sold. They came to me looking for advice about the possibility of renting out their condo. They were smart to ask.
Tuesday, December 14, 2010
Lender Deviations from the New Good Faith Estimate
In an effort to reduce consumer confusion when it comes to obtaining a loan, the federal government enacted reforms to the Department of Housing and Urban Development began, on January 1, 2010, to require the use of a standardized form of Good Faith Estimate (GFE). The concept behind the reform makes sense, but in reality, not much has changed.
The charges on a good faith estimate are now broken into three parts. The first part contains fees that CANNOT change. These are your lender fees. The goal is to impair a lender's attempts to pull a bait and switch on a borrower. There is no tolerance for any deviation between this part of the terms of the good faith estimate and the actual costs at closing.
The charges on a good faith estimate are now broken into three parts. The first part contains fees that CANNOT change. These are your lender fees. The goal is to impair a lender's attempts to pull a bait and switch on a borrower. There is no tolerance for any deviation between this part of the terms of the good faith estimate and the actual costs at closing.
Tuesday, November 30, 2010
Dealing with Email of a Decedent
Here is part six in the series of articles on virtual estate planning
Emails and email accounts, like physical letters, are the most obvious and most commonly discussed form of virtual asset. As I mentioned in a previous post, there are two types of email services: POP based and web-based. POP based email is usually downloaded to a local computer and suffers from less confusion about property rights in the email than web-based email (that is not to say that POP based email is without its own set of issues).
Web based email services rely on "off-site" servers administered by e-mail service providers. Web based email accounts and their contents are a form of digital asset. These assets are governed by the contract that establishes the account, commonly known as the "Terms of Service" (this is that page that most people don't read and just click "okay" and then "next" to move on in the process of establishing an account). There is no uniformity among email service providers, so each is feeling its own way in the digital world when dealing with the death of a user.
I will discuss a few of the web based service providers and their current policies for dealing with the death of an account user. These policies are constantly changing, so please, do not rely on the information here. Always check the current terms of service.
Yahoo!: Yahoo's policy on deceased person's accounts has not changed since the resolution of the Ellsworth Estate. Per their terms of service, there is no right of survivorship and a Yahoo account is non-transferrable. Upon receipt of a death certificate, Yahoo! will freeze an account for 90 days and then terminate the account and delete the contents. Basically, without a password, the only way for a personal representative to obtain access to a Yahoo! account is with a court order. Obviously, time is of the essence and a savvy probate practitioner will query a client early in the probate process about email accounts so as not to miss the termination deadline.
Google Gmail: A Google account stays open forever unless a request is made to delete the account. Google will provide access to the account of a deceased person. Access will be granted within 30 days after Google is notified of the death of an account holder if the person notifying Google provides the following: Information to be provided to Google (faxed to 650-644-0358 or mailed to Google Inc., Attention: Gmail User Support, 1600 Amphitheatre Parkway, Mountain View, CA 94043): 1. the full name and contact information of the person seeking access to the account, including a verifiable email address; 2. the Gmail address of the individual who passed away; 3a. a full header from an email message received at the verifiable email address from the Gmail address in question and 3b. the entire contents of the message; 4. proof of death; and 5. one of the following: a) if the decedent was 18 or older, proof of authority under local law that the person making the request is the lawful representative of the deceased or his or her estate or b) if the decedent was under the age of 18 and the person making the request is the parent of the account holder, provide a copy of the decedent’s birth certificate.
In addition, Google will provide information faster than the stated policy of thirty days thirty day processing time pursuant to a valid court order.
Microsoft Hotmail: Hotmail is a part of the Microsoft WindowsLive service. If Microsoft is notified via email that an account holder is deceased, they will "freeze" and preserve an account for six months during which a requester must complete an authorization procedure to obtain account information. If the process is not complete within six months, Microsoft will delete the account. Like Yahoo!, account contents will be turned over but the password will not be provided nor reset. Microsoft will not transfer an account.
Per the MicrosoftLive Solution Center:
Please note: While this process allows for the release of the account contents to you, we will not provide or reset the password for this account. This process does not allow for the transfer of account ownership; however, once your documentation has been verified, we can close the account at your request. This policy is in place to protect the privacy and security of all Hotmail users. Upon authentication, we will also close the account at your request.
Instructions to for the WindowsLive account procedure are here.
Hotmail will mail a CD filled with the contents of the Hotmail account. Information that must be provided to Micorosoft (faxed to 425-708-0096 or mailed to Microsoft Corp., Attn: Online Services Custodian of Records, 1065 La Avenida, Building 4, Mountain View, CA, 94043): 1) a photocopy of the user's death certificate; 2) paperwork from the requestor stating that he/she is the benefactor or executor to the deceased's estate and/or holder of a Power of Attorney and are next-of-kin; 3) a photocopy of the requestor's driver's license or a government issued identification; 4) a document with answers to the following questions about the account, for verification purposes: account name, first and last name on the account, date of birth, city, state and zip code, approximate date of account creation, approximate last date of sign in, a physical mailing address
Editorial comment: obviously Microsoft is unaware of the difference between a power of attorney agent and a personal representative. Technology is sometimes as backwards as the law is to technology in its application of legal concepts
Obviously, there are other email providers out there. They will all have different requirements for access to and turnover or cancellation of an email account. Consult the terms of service for those accounts to see what the playing field looks like.
click here for part five
Emails and email accounts, like physical letters, are the most obvious and most commonly discussed form of virtual asset. As I mentioned in a previous post, there are two types of email services: POP based and web-based. POP based email is usually downloaded to a local computer and suffers from less confusion about property rights in the email than web-based email (that is not to say that POP based email is without its own set of issues).
Web based email services rely on "off-site" servers administered by e-mail service providers. Web based email accounts and their contents are a form of digital asset. These assets are governed by the contract that establishes the account, commonly known as the "Terms of Service" (this is that page that most people don't read and just click "okay" and then "next" to move on in the process of establishing an account). There is no uniformity among email service providers, so each is feeling its own way in the digital world when dealing with the death of a user.
I will discuss a few of the web based service providers and their current policies for dealing with the death of an account user. These policies are constantly changing, so please, do not rely on the information here. Always check the current terms of service.
Yahoo!: Yahoo's policy on deceased person's accounts has not changed since the resolution of the Ellsworth Estate. Per their terms of service, there is no right of survivorship and a Yahoo account is non-transferrable. Upon receipt of a death certificate, Yahoo! will freeze an account for 90 days and then terminate the account and delete the contents. Basically, without a password, the only way for a personal representative to obtain access to a Yahoo! account is with a court order. Obviously, time is of the essence and a savvy probate practitioner will query a client early in the probate process about email accounts so as not to miss the termination deadline.
Google Gmail: A Google account stays open forever unless a request is made to delete the account. Google will provide access to the account of a deceased person. Access will be granted within 30 days after Google is notified of the death of an account holder if the person notifying Google provides the following: Information to be provided to Google (faxed to 650-644-0358 or mailed to Google Inc., Attention: Gmail User Support, 1600 Amphitheatre Parkway, Mountain View, CA 94043): 1. the full name and contact information of the person seeking access to the account, including a verifiable email address; 2. the Gmail address of the individual who passed away; 3a. a full header from an email message received at the verifiable email address from the Gmail address in question and 3b. the entire contents of the message; 4. proof of death; and 5. one of the following: a) if the decedent was 18 or older, proof of authority under local law that the person making the request is the lawful representative of the deceased or his or her estate or b) if the decedent was under the age of 18 and the person making the request is the parent of the account holder, provide a copy of the decedent’s birth certificate.
In addition, Google will provide information faster than the stated policy of thirty days thirty day processing time pursuant to a valid court order.
Microsoft Hotmail: Hotmail is a part of the Microsoft WindowsLive service. If Microsoft is notified via email that an account holder is deceased, they will "freeze" and preserve an account for six months during which a requester must complete an authorization procedure to obtain account information. If the process is not complete within six months, Microsoft will delete the account. Like Yahoo!, account contents will be turned over but the password will not be provided nor reset. Microsoft will not transfer an account.
Per the MicrosoftLive Solution Center:
Please note: While this process allows for the release of the account contents to you, we will not provide or reset the password for this account. This process does not allow for the transfer of account ownership; however, once your documentation has been verified, we can close the account at your request. This policy is in place to protect the privacy and security of all Hotmail users. Upon authentication, we will also close the account at your request.
Instructions to for the WindowsLive account procedure are here.
Hotmail will mail a CD filled with the contents of the Hotmail account. Information that must be provided to Micorosoft (faxed to 425-708-0096 or mailed to Microsoft Corp., Attn: Online Services Custodian of Records, 1065 La Avenida, Building 4, Mountain View, CA, 94043): 1) a photocopy of the user's death certificate; 2) paperwork from the requestor stating that he/she is the benefactor or executor to the deceased's estate and/or holder of a Power of Attorney and are next-of-kin; 3) a photocopy of the requestor's driver's license or a government issued identification; 4) a document with answers to the following questions about the account, for verification purposes: account name, first and last name on the account, date of birth, city, state and zip code, approximate date of account creation, approximate last date of sign in, a physical mailing address
Editorial comment: obviously Microsoft is unaware of the difference between a power of attorney agent and a personal representative. Technology is sometimes as backwards as the law is to technology in its application of legal concepts
Obviously, there are other email providers out there. They will all have different requirements for access to and turnover or cancellation of an email account. Consult the terms of service for those accounts to see what the playing field looks like.
click here for part five
Friday, November 12, 2010
What Attributes to look for in a Real Estate Agent
There are four main attributes for finding a good real estate agent: knowledge, comfort, trustworthiness, and reputation.
Knowledge:
I look for an agent with expertise in a limited geographical area and a limited type of property. In a large metropolitan area like Chicagoland, it is impossible to find an agent who can competently cover a whole city or all of the suburbs and just as difficult to find an agent with the expertise to handle all types (commercial, residential, leasing, etc.) of deals. Location, location, location. Don't use a suburban real estate agent for a south side property. Don't use a commercial broker to find a residential property. Find an agent who knows and works a particular area and with a particular type of property. The right tool for the job! Such an agent will have a basic knowledge of property values, common problems or pitfalls (ie. this property is near the freight train line that comes through in the early morning or is on the landing path for the local airport), and local customs and practices (ie. customary tax proration in the city versus a collar county). Most real estate deals are pretty smooth and just about any agent could handle them. However, when a deal does not go as planned, choosing the right agent becomes critical. The right agent will have a good level of experience so that the agent will know how to handle the "off" situation.
Comfort:
A real estate buyer or seller will spend plenty of time on the phone with an agent and possibly even more time in the agent's personal company. Some buyers spend weeks in the real estate agent's car driving from showing to showing. The client must be comfortable and get along with the agent. This is a matter of personal taste. An agent that some consider to be pushy or short to some may be forceful and to the point for others. An agent who is non-confrontational and collegial to some may be too withdrawn and without enough fight for others.
Trustworthiness:
Most people know that a real estate agents is only paid when a transaction closes. As a result, bad agents sometimes work "for the deal" rather than working "for the client". Avoid agents that do not put the client's best interests first. These agents are easily found out when they begin to play "devil's advocate" a little too much with regard to price, repair requests, or contract terms or when they "babysit" a deal too much to make sure it closes on time (because they need the commission check to eat). Trustworthiness is important when a client needs an agent who knows the law and does not cross over the line. A good agent will find novel and smart ways to solve problems; a bad agent will suggest an illegal or unethical course of dealing and merely suggest that "everyone does it". This behavior is commonly demonstrated by the "bad" agent who has no problem with "off the HUD-1" credits or who smooths over inspection issues by downplaying the importance of those issues to the client.
Reputation:
The best way to find a good real estate agent is to ask someone who has recently been through the real estate buying or selling process or, better yet, to ask someone in a related real estate profession. Attorneys and mortgage brokers know the good agents and the bad agents and can usually help a client find one or more who might be the "right" fit. There is no substitute for experience. It is better to get a referral to a good agent up front than to get stuck with a bad agent only to learn that the agent is bad at the closing table.
A real estate deal is one of the largest transactions that most people will engage in during their lifetimes. The choice of an agent should not be left to random chance, the cheapest quote, the luck of the draw, the first guy who called back, or whoever was "on the desk" when the client called in to the broker's office. A prospective client should always interview multiple agents. Choose the one with the best blend of qualities and the results should pay off.
Knowledge:
I look for an agent with expertise in a limited geographical area and a limited type of property. In a large metropolitan area like Chicagoland, it is impossible to find an agent who can competently cover a whole city or all of the suburbs and just as difficult to find an agent with the expertise to handle all types (commercial, residential, leasing, etc.) of deals. Location, location, location. Don't use a suburban real estate agent for a south side property. Don't use a commercial broker to find a residential property. Find an agent who knows and works a particular area and with a particular type of property. The right tool for the job! Such an agent will have a basic knowledge of property values, common problems or pitfalls (ie. this property is near the freight train line that comes through in the early morning or is on the landing path for the local airport), and local customs and practices (ie. customary tax proration in the city versus a collar county). Most real estate deals are pretty smooth and just about any agent could handle them. However, when a deal does not go as planned, choosing the right agent becomes critical. The right agent will have a good level of experience so that the agent will know how to handle the "off" situation.
Comfort:
A real estate buyer or seller will spend plenty of time on the phone with an agent and possibly even more time in the agent's personal company. Some buyers spend weeks in the real estate agent's car driving from showing to showing. The client must be comfortable and get along with the agent. This is a matter of personal taste. An agent that some consider to be pushy or short to some may be forceful and to the point for others. An agent who is non-confrontational and collegial to some may be too withdrawn and without enough fight for others.
Trustworthiness:
Most people know that a real estate agents is only paid when a transaction closes. As a result, bad agents sometimes work "for the deal" rather than working "for the client". Avoid agents that do not put the client's best interests first. These agents are easily found out when they begin to play "devil's advocate" a little too much with regard to price, repair requests, or contract terms or when they "babysit" a deal too much to make sure it closes on time (because they need the commission check to eat). Trustworthiness is important when a client needs an agent who knows the law and does not cross over the line. A good agent will find novel and smart ways to solve problems; a bad agent will suggest an illegal or unethical course of dealing and merely suggest that "everyone does it". This behavior is commonly demonstrated by the "bad" agent who has no problem with "off the HUD-1" credits or who smooths over inspection issues by downplaying the importance of those issues to the client.
Reputation:
The best way to find a good real estate agent is to ask someone who has recently been through the real estate buying or selling process or, better yet, to ask someone in a related real estate profession. Attorneys and mortgage brokers know the good agents and the bad agents and can usually help a client find one or more who might be the "right" fit. There is no substitute for experience. It is better to get a referral to a good agent up front than to get stuck with a bad agent only to learn that the agent is bad at the closing table.
A real estate deal is one of the largest transactions that most people will engage in during their lifetimes. The choice of an agent should not be left to random chance, the cheapest quote, the luck of the draw, the first guy who called back, or whoever was "on the desk" when the client called in to the broker's office. A prospective client should always interview multiple agents. Choose the one with the best blend of qualities and the results should pay off.
Landlords Subject to New Tax Requirements for 2011
The brand new Small Business Jobs Act of 2010 enacted by President Obama in September, 2010 includes a new provision that affects landlords.
Beginning in 2011, all landlords must provide 1099-MISC forms to all service providers for payments in excess of $600 during the year. Previously, only landlords who rented property as a "trade or business" were required to make a filing. Now, the law extends to any and all landlords, even those who rent out a bedroom or make a short term rental. The law amends the definition of being engaged in the "trade or business" of renting property to include "a person receiving rental income from real estate".
As such, all landlords must issue a 1099-MISC to any service provider who the landlord pays more than $600 in any given year. This means that if you rent your property and pay an attorney to help with an eviction and pay an invoice for $1400, you must issue the attorney a 1099-MISC. Same goes for landlords who, say, pay a cleaning service $75 per month ($900) to clean their rental property.
The law does provide three exceptions. First, it excludes active members of uniformed services or intelligence employees who are renting their primary residence while on assignment. Next, the law excludes any individual who receives rental income of not more than the minimal amount as determined by the IRS regulations. No such regulations yet exist. Finally, it provides a hardship exception for landlords, as determined by the IRS regulations. Again, the IRS has not issued any regulations as to what sort of hardship might be sufficient to excuse performance.
Interestingly, the law also provides for increased penalties for failure to file informational returns.
The 1099-MISC forms must be filed in early 2012, however, landlords must begin the process of maintaining their records beginning as of January 1, 2010. The prudent landlord will collect the name, address, and federal employer identification number (FEIN) from people they pay for goods and services. This means landlords must also become facile with IRS form W-9.
Prudent landlords will be keeping their books current beginning with the new year. Better yet, prudent landlords will want to get a "landlord tune-up" for 2011 from the attorneys at Reda | Ciprian | Magnone, LLC.
Beginning in 2011, all landlords must provide 1099-MISC forms to all service providers for payments in excess of $600 during the year. Previously, only landlords who rented property as a "trade or business" were required to make a filing. Now, the law extends to any and all landlords, even those who rent out a bedroom or make a short term rental. The law amends the definition of being engaged in the "trade or business" of renting property to include "a person receiving rental income from real estate".
As such, all landlords must issue a 1099-MISC to any service provider who the landlord pays more than $600 in any given year. This means that if you rent your property and pay an attorney to help with an eviction and pay an invoice for $1400, you must issue the attorney a 1099-MISC. Same goes for landlords who, say, pay a cleaning service $75 per month ($900) to clean their rental property.
The law does provide three exceptions. First, it excludes active members of uniformed services or intelligence employees who are renting their primary residence while on assignment. Next, the law excludes any individual who receives rental income of not more than the minimal amount as determined by the IRS regulations. No such regulations yet exist. Finally, it provides a hardship exception for landlords, as determined by the IRS regulations. Again, the IRS has not issued any regulations as to what sort of hardship might be sufficient to excuse performance.
Interestingly, the law also provides for increased penalties for failure to file informational returns.
The 1099-MISC forms must be filed in early 2012, however, landlords must begin the process of maintaining their records beginning as of January 1, 2010. The prudent landlord will collect the name, address, and federal employer identification number (FEIN) from people they pay for goods and services. This means landlords must also become facile with IRS form W-9.
Prudent landlords will be keeping their books current beginning with the new year. Better yet, prudent landlords will want to get a "landlord tune-up" for 2011 from the attorneys at Reda | Ciprian | Magnone, LLC.
Thursday, November 11, 2010
All kinds of virtual assets
Here is part five in my series on digital assets. Today, I will touch on the general concept of why digital assets are important to an estate planner or probate attorney. Wikipedia defines "digital assets" as email, social media, and other online accounts, protected by a password and right to use a specific account. Widespread internet technology adoption has created a class of assets, virtual or digital assets, which estate representatives and their legal counsel need to address. These assets can have material value. Today's estate planners need to be able to recognize these assets and the special attention that they call for. Proper planning for virtual assets today can lead to smooth estate administration tomorrow.
There are more classes of virtual assets than one might think. The issues related to these assets are generally issues of content and access. For the most part, content is an easier issue as most content belongs to the creator and the creator's estate. Some terms of service might change that analysis. For example, Facebook was recently in the news for its claims that it had ownership over everything posted there. Access is the harder issue. Access is easy to deal with when a representative has the decedent's username and password. Be aware that even the use of a username and password by an Executor or Administrator may be a violation of certain terms of service. Things get more complex when a username and password are not available. These materials will seek to point out virtual assets that estate planners and probate practitioners need to consider and how to access them.
Beginning in the next installment, beginning with email, I will provide brief general information on how to deal with a particular account upon the death of an account holder.
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