THE IMPORTANCE OF ESTATE PLANNING

November 3, 2023

By: Scott M. Ceurvels, Esq.


New York was recently ranked the worst state to die in without a Will in a study published by Caring.com. The Caring.com 2023 Estate Planning Study considered factors pertaining to the probate process, guardianship, taxes and various other aspects of estate distribution to establish this ranking, all of which is described more fully and can be read at the link above.


As the 2023 Estate Planning Study points out, and various other sources corroborate, it is estimated that only one-third (1/3) of Americans have a Will in place overall. That number further declines among certain demographics, with less than one-fourth (1/4) of Black and Hispanic Americans having a Will. There are numerous reasons why so many Americans have not executed a Will of their own, from the number or value of assets one does (or doesn't) have to being "too young" or even assumptions surrounding what happens "automatically" upon one's death without a Will, just to name a few.


Regardless of the reason, the fact remains that well over half of Americans don't have a Will in effect and, upon their death, will be reliant on State law to direct how their assets are distributed. Although not covered directly in the studies referenced above, another aspect of estate planning that is frequently addressed in conjunction with Wills are financial and health care planning documents that can be utilized to put some of the most sensitive and personal decisions in the hands of a trusted family member or friend in the event of a serious injury or illness that results in your incapacity.


Why is Working With an Estate Planning Lawyer So Important?


Working with an estate planning lawyer is one of the most effective ways to make sure that your financial and personal wishes are carried out both during your lifetime and after it ends. An experienced estate planning lawyer helps you craft a thorough plan that addresses your unique needs, allowing your assets to be distributed according to your preferences and protecting your loved ones from unnecessary legal complications. Beyond drafting a will, your estate planning lawyer can help with creating trusts, healthcare directives, power of attorney documents, and tax-efficient strategies to safeguard your wealth. Working with a professional can provide clarity on New York’s intricate state laws and help avoid common pitfalls that you might encounter if you attempt to do it yourself.


If you haven’t yet created or updated your estate plan, now is the time to take action. At Scolaro Fetter Grizanti & McGough, P.C., our knowledgeable attorneys are here to guide you through every step of the process to provide peace of mind for you and your family. Contact us today to schedule a consultation and begin planning your future with confidence.


What Happens if I Die in New York Without a Will?


Generally speaking, if you die without a Will in New York, any assets held in your individual name ("Probate Assets") will be distributed in accordance with the State intestacy laws. This excludes assets that pass by beneficiary designation and certain jointly-owned property ("Non-Probate Assets").


 In New York, the State intestacy law provides that:

  • If you are survived by a spouse and no children/grandchildren/etc., all of your Probate Assets will be inherited by your surviving spouse.
  • If you are survived by a spouse and children/grandchildren/etc., the first $50,000 of Probate Assets will be inherited by your surviving spouse, and half of any remaining assets will go to your surviving spouse and the other half to your surviving children, grandchildren, etc.
  • If you are not survived by a spouse but are survived by children/grandchildren/etc., all of your Probate Assets will be inherited by such children/grandchildren/etc.
  • If you are not survived by a spouse or children, all of your Probate Assets will instead be inherited by your surviving parent(s).
  • If you are not survived by either of your parents, then your Probate Assets will be inherited by any surviving siblings of yours, and so on.


While there are a number of tax, asset protection, business succession and other more complex considerations that often drive estate planning, it is equally as important for the simple reason of ensuring that trusted individuals of your choice are designated to make your healthcare and financial decisions in the event you are unable to do so and that your assets are inherited in accordance with your wishes upon your death.


If you do not have a Will or other estate planning documents in place, or have not updated or reviewed your estate planning documents recently, please contact Scott Ceurvels or the attorney at our firm with whom you work.

Important Notice for New York State LLCs

August 8, 2024
By: Nicholas J. Graham, Esq. Limited Liability Companies ("LLC") have been authorized in New York since 1994. When the law was first enacted, an LLC could not have perpetual existence like corporations. This limitation was removed in 1997. If your LLC was established under the old New York State law that imposed a 30-year lifespan, it's crucial to be aware of the approaching expiration of your company's duration. Originally, LLCs in New York were required to specify a limited duration, commonly set at 30 years. Many of these companies are now reaching the end of this period and must take action to continue operating. Special attention should be given to LLC's formed between 1994 and 1997, as they were likely established with a 30-year lifespan. What Has Changed? The law in New York has evolved, and LLCs are no longer bound by the 30-year limit. Pursuant to NY LLC law §701(1), businesses now have the option to exist perpetually, providing greater flexibility and stability for long-term planning. However, this change is not automatic for existing LLCs that were originally set up with a 30-year term. What You Need to Do To ensure your LLC can continue its operations beyond the original 30-year term, you need to file an amended Articles of Organization with the New York Department of State. This amendment should update the duration of your LLC to perpetual, or to another term if desired. Steps to Amend Your Articles of Organization: Prepare the Amendment: Draft an amendment to your LLC's Articles of Organization. This document should clearly state the new duration of the LLC, typically set to "perpetual." File the Amendment: Submit the amended Articles of Organization to the New York Department of State. This can usually be done online or by mail. Ensure that you include the necessary filing fee. Update Internal Documents: Reflect the change in your LLC's operating agreement and any other internal documents to ensure consistency and compliance. Notify Members and Stakeholders: Inform all members and relevant stakeholders of the change to ensure everyone is aware of the updated status of the LLC. Why It Matters Failing to update your LLC’s duration could result in the automatic dissolution of the company once the original 30-year term expires. This could lead to significant disruptions in business operations and potential legal complications. By taking proactive steps to amend your Articles of Organization, you can ensure the continuity of your LLC and take advantage of the flexibility offered by the current laws. Need Assistance? The Scolaro Law Firm specializes in helping businesses navigate changes in regulatory requirements. If you need assistance with amending your Articles of Organization or have any questions regarding your LLC's status, please contact us. Our experienced team is here to provide the guidance and support you need to keep your business running smoothly. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken.

SMB M&A SERIES: Financing Business Acquisitions

July 23, 2024
By: Nicholas J. Graham, Esq. The SMB M&A series provides insights into buying and selling a small business. For business buyers looking to acquire a small business, securing the right financing is often a critical step. The U.S. Small Business Administration (SBA) offers two popular loan programs that can be invaluable in this process: the 7(a) loan and the 504 loan. These loans are available through local lenders and are partially guaranteed by the SBA, reducing the risk for lenders and making it easier for small businesses and entrepreneurs to obtain financing. Both programs provide favorable terms that can make acquiring a business more achievable. Here’s a closer look at how each can be used, with a particular focus on the flexibility of the 7(a) loan, as it is more commonly used for business acquisitions. The SBA 7(a) Loan Program The 7(a) loan program is the SBA’s most popular and flexible loan option. It is designed to help small businesses and entrepreneurs obtain financing when they might not be eligible for traditional financing options. Here are the key advantages and uses of the 7(a) loan for business acquisitions: 1. Broad Eligibility and Use of Funds: The 7(a) loan can be used for a variety of purposes, including purchasing a business which can include goodwill, buying out partners, acquiring real estate, and refinancing existing debt. This flexibility makes it an ideal choice for business acquisitions where the buyer may need to cover multiple types of expenses. 2. Favorable Terms and Conditions: 7(a) loans offer competitive interest rates, long repayment terms (up to 10 years for business acquisitions), and lower down payment requirements compared to conventional loans. These favorable terms can ease the financial burden on buyers and improve cash flow during the critical early stages of ownership. 3. Working Capital Inclusion: One significant advantage of the 7(a) loan is the ability to include working capital in the loan amount. This can provide new business owners with the necessary liquidity to manage day-to-day operations, especially important during the transition period post-acquisition. 4. Collateral Flexibility: While the SBA prefers loans to be fully collateralized, a 7(a) loan can still be approved even if sufficient collateral is not available. This can be a major benefit for buyers who have limited assets to pledge. The SBA 504 Loan Program The 504 loan program is another powerful financing tool, primarily focused on fixed assets such as real estate and equipment. It involves a partnership between the SBA, a Certified Development Company (“CDC”), and a private lender. Here’s how it works for business acquisitions: 1. Structured Financing: A 504 loan typically consists of three parts: a loan from a private sector lender covering 50% of the project cost, a loan from a CDC covering up to 40%, and a 10% down payment from the borrower. This structure can reduce the amount of equity the buyer needs to provide upfront. 2. Long-Term Fixed Rates: The 504 loan offers long-term fixed interest rates, which can provide stability and predictability for business owners. This is particularly beneficial when acquiring property as part of the business purchase. 3. Real Estate and Equipment Focus: While the 504 loan is less flexible than the 7(a) loan in terms of eligible uses, it is ideal for acquisitions that involve significant real estate or heavy equipment investments. The ability to finance these assets over a long term with a fixed rate can be a strategic advantage. Conclusion Navigating the complexities of financing a business acquisition can be challenging, but SBA loans offer valuable tools to help buyers achieve their goals. The 7(a) loan’s flexibility and broad eligibility make it a particularly attractive option, while the 504 loan’s fixed-rate, long-term structure provides stability for significant asset purchases. However, to truly capitalize on these advantages, it's essential to structure the transaction properly and adhere to all eligibility criteria and regulatory requirements. With careful planning and compliance, SBA loans can provide the financial support needed to successfully acquire and grow a business. If you’re considering buying a business and exploring SBA loan options, our experienced M&A team at Scolaro Fetter Grizanti & McGough, P.C. is here to help. Our team handles small business M&A transactions throughout New York State, Vermont, Pennsylvania and Florida. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken.