New York's New Law on Disposition of Human Remains

New York has passed a law to help avoid the type of confusion experienced in the wake of Anna Nicole Smith’s death.

For many years, New York has allowed individuals to name agents to carry out their wishes – whether or not the individual is able to act. The Durable Power of Attorney and Health Care Proxy are two examples of documents which allow individuals to ensure that their wishes are carried out by their agents. Effective August 2, 2006, New York State recognized a new Document, the Appointment of Agent to Control Disposition of Remains. This document allows an individual to put in writing his or her funeral and burial wishes and name an agent (and successor agents in the event the primary agent is unable to act) to carry out those wishes. The Appointment of Agent will be most helpful to those individuals who do not have close family members to see that their funeral and burial instructions are carried out.

For example, you may wish your remains to be cremated. To avoid disputes, you may wish to sign an Appointment of Agent to authorize someone you trust as agent to ensure that your remains are disposed of according to your wishes.

We have already seen decedents’ wishes carried out pursuant to an Appointment of Agent. A number of alternatives exist that, if properly planned, make the process more cost-effective and less stressful.

Postponing Taxes on Real Estate

If you sell real property that you rent, or use in connection with a business, or hold as an investment, you may be able to postpone payment of taxes that would be due on gains from the sale through a like-kind exchange under Section 1031 of the Internal Revenue Code.

To qualify under Section 1031, among other requirements, a “replacement” property must be acquired. The IRS rules permit some flexibility:

Reverse Triangular Mergers:
A Convenient Truth

Sounds complicated. But the “reverse triangular merger” is an old friend whom we have recently visited on a number of occasions. Let’s review the basics: a merger takes place when two corporations combine their assets and operations into one corporate entity; one survives, one disappears. There are various types of mergers; two-party, multi-party, triangular and reverse triangular.

The reverse triangular merger has the advantage of having the target corporation becoming a wholly owned subsidiary of the acquirer (parent) corporation without the target having to end its corporate existence. The acquiring (parent) corporation creates a wholly owned subsidiary. The shares of stock of the target are converted into the shares of stock of the acquiring (parent) corporation. A reverse triangular merger requires fewer third party consents since, absent a specific prior contractual anti-assignment prohibition with a third party, a reverse triangular merger generally doesn’t trigger an anti-assignment provision. With respect to intellectual property license agreements, be careful. Trademarks, copyrights and patents are key assets.

Licensors and licensees of these valuable rights seek different end results in the event of a reverse triangular merger. The licensor may block the licensee from transferring licensed IP rights should the licensee become party to a merger. The licensee, to make itself more attractive in a merger, wants transferability of the intellectual property licenses currently in the licensee’s portfolio. If the licenses were properly drafted, the licenses will not pose any concerns for the reverse triangular merger. A broadly-drafted anti-assignment provision in a license agreement may, however, block or delay a merger. A reverse triangular merger may have a number of other advantages for the parties to the merger. If vetted properly, the process may be simpler than it sounds.

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