FREQUENTLY ASKED QUESTIONS

Estate Planning

No one likes to dwell on the fact that, at some time, they will pass away. If you or a loved one delays the process of planning for the future, you run the risk of putting your life’s investments in danger, and the ones whom you love the most will be directly impacted by the losses. An estate plan ensures that your assets, property and other belongings will be passed on to the next generation. Not only will this protect your assets, but it will contribute to the long-standing financial health of your family. When you fail to coordinate your wishes for property distribution, potential problems and probate disputes could put unnecessary strain on your loved ones after you pass away.

There are many ways that you can protect your heirs and offer them peace of mind for the future. Our lawyers are skilled in comprehensive and strategic approaches to future planning. Through establishing directives for guardianship or estate planning with wills and trusts, there are numerous possibilities for you to protect your loved ones. We would be happy to consult with you, get to know your personal circumstances, and create a plan of action that will help you secure the best possible outcome that protects both you and your heirs.

Probate is the court process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time consuming. Additionally, the court proceeding and associated documents are all a matter of public record.

Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.

This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants.

Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.

The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Surrogates’ Court (Probate Court). Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will.

  1. You, the maker of the will (called the testator), must be at least 18 years old.
  2. You must be of sound mind at the time you sign your will.
  3. Your will must be written.
  4. Your will must be witnessed by two people in the special manner provided by law for wills.
  5. It is necessary to follow exactly the formalities required for the execution of a will.
  6. To be effective, your will must be proved in and allowed by the Surrogates’ Court.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil,” which is simply an addition or amendment executed with the same formalities of a will. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.

  1. You decide who gets your property instead of the law making the choice for you.
  2. You may name the executor of your will as you choose, provided the one named can qualify under New York law. An Executor is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations.
  3. A trust may be created in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property.
  4. Real estate and other assets may be transferred.
  5. You may make gifts, effective at or after your death, to charity.
  6. You decide who bears any tax burden, rather than the law making that decision.
  7. A guardian may be named for minor children.

If you die without a will (this is called dying “intestate”), your property will be distributed to your heirs according to a formula fixed by law. Your property does not go to the State of New York unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.

When there is no will, the court appoints an administrator, known or unknown to you, to manage your estate. The cost of probating may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.

While any sort of property may be transferred by will, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his or her death, or others have been granted rights in the property by New York law. Some examples of these types of property rights or interests are:

  • A life estate: property owned only for the life of the owner;
  • Any property owned jointly with another person or persons with right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these).

A person may not disinherit his or her spouse without a properly executed marital agreement. The law gives a surviving spouse a choice to take either his or her share under the will or a portion of the decedent’s property determined under the “elective share” statute. This statute uses a formula to compute the size of the surviving spouse’s elective share, which includes amounts stemming from the decedent’s jointly held and trust property, life insurance, and other non-probate assets. Because this formula is very complicated, it is usually necessary to refer this matter to an attorney with extensive experience in this area of law. Also, if your will was made before the marriage and the will does not either provide for the spouse or show your intention not to provide for him or her, then your spouse would receive the same share of your estate as if you had died without a will (at least one-half of your estate) unless provision for the spouse was made or waived in a marital agreement.

No. This is not necessary and can actually cause considerable added expense to the estate. It is better simply to state in the will that no provision is being made for that child.

It is “good” until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress, or fraud, provided it is changed in the required manner. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation.

No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses. If there is real or personal property to be transferred at your death, the court will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the inheritance statute. Thus, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.

Keep it advisable to change the will to conform to the new situation.

Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for Health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.

If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.

You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.

These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.

This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.

Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.

Living Trusts

Yes. If you are competent to handle your financial affairs now, there’s no legal reason why you can’t be the trustee of your own trust. In fact, most revocable living trusts have the people who created them acting as their own trustees. If you’re married, you and your spouse can act as co-trustees.

If you’re the trustee, you can do anything you want with the trust assets. When you set up your revocable living trust, you are transferring the title of all your assets from you as an individual to yourself as the trustee of your trust. You then must manage the property for the benefit of yourself as the beneficiary. What this means is that you will have absolute and complete control over the assets of your trust. If you want, you can spend, save, invest or even give the assets away at your discretion. There are no restrictions on what you can do with the assets in your living trust. Moreover, if you don’t like the terms of the trust, you can amend it or revoke it at any time.

No. The purpose of creating your living trust is to avoid probate, guardianship proceedings (if you become disabled), and reduce or eliminate federal estate taxes. It’s not a vehicle for reducing income taxes. In fact, if you’re the trustee of your living trust, you will file your income tax returns in exactly the same way you filed them before the trust existed. There are no new returns to file and no new liabilities are created

No. Transfers into your revocable living trust have no effect on your property taxes.

Yes. Your share can go into the trust without changing the interests owned by others.

Yes. There is no limitation on where your trustees or beneficiaries must reside.

No. Once your current assets are transferred to your living trust, you take title to all new assets in the name of the trust and they will automatically be owned by your trust.

No. It is a private document which is not recorded. However, if you own any interest in real estate, the new deeds showing trust ownership will be recorded by the law firm for you.

Yes. While you’re alive and competent, you can add assets to, or remove assets from, your living trust without penalty at any time.

Yes. In fact, all real estate should be transferred into your living trust. Otherwise, upon your death, there will be a probate in every state where you own real property. When it’s owned by your living trust, there is no probate anywhere. Again, the law firm will handle the deed work for you.

No. Your living trust has been authorized by the law for centuries. The government has no interest in making you go through guardianship proceedings or a probate. Those proceedings only clog up the court system. Properly drafted revocable living trusts can double the amount you and your spouse can pass tax free. At current levels, your trusts will allow you to pass more than $22,000,000 estate tax free.

The drafting of your trust should be done by an attorney trained in the area of tax and trust law. It’s important that you seek out a law firm with experience in the creation of living trusts. After all, your trust will be the document which manages and disposes of all your hard earned wealth.

Yes. Your living trust is valid in all 50 states, regardless of the state where it was originally created.

Yes. If you’re widowed, divorced, or unmarried, a living trust offers protection for your estate, as well. It is especially important if you are single to choose who will take over your affairs if you become disabled. The trust will completely eliminate probate, guardianship proceedings (if you become disabled) for all trust assets, and you can still pass more than $5,700,000.00 free of state estate taxes.

No. Because you have complete control of all assets in your trust, you’re free to manage it any way you want. Also, because your living trust is revocable, you have the right to make any changes in it while you’re alive and competent. The revocable trust can do exactly what is was intended for but it does not provide asset protection.

There are different types of estate taxes in the State of New York, including the federal and state estate tax. Because every case is different, there is no one way to avoid paying estate taxes. While creating a comprehensive estate plan, we will determine if establishing a trust, planning for Medicaid, or dividing your assets will reduce or avoid your estate taxes. We will make certain that your estate plan adheres to tax laws and meets all the requirements by the Internal Revenue Service and other tax authorities

Elder Law

Elder Law is the practice of specially trained attorneys who can help you protect your residence in the event of illness and dispose of your assets upon your demise, with a minimum of taxes and problems. Elder Law attorneys address long term care and POA needs of each individual based on his or her unique situation.

Most areas of the law focus on a specific discipline, and elder law attorneys focus on a specific type of person. The main purpose of an elder law attorney is to help aging Americans to legally navigate through the issues of life that arise simply because of age.

You care about your loved one. You want them to have the best possible care. If you are like most families, the cost of care comes as a tremendous shock. The care that’s needed is often unaffordable over the long run. Your best strategy depends on the health of your loved one, whether they need care today or in the future, their financial resources, and other factors. As your elder law attorney, our law firm is uniquely qualified to provide you with solutions.

From questions about coordinating care in the community, to finding a quality nursing home, our elder care attorneys are here for you. We can guide you through all the financial and health care decision-making issues which need to make in the future.

We are experienced elder law attorneys that the experts rely on. Health care professionals such as hospital discharge planners, legal and financial professionals such as our attorney colleagues, and accountants and financial planners rely on us to help their clients in these areas. Let us become your elder law attorneys .

Your primary residence has unique protections under Medicaid, but there are also traps for the unwary such as Medicaid estate recovery. These protections are multiplied if a spouse or special needs child lives with you. Even if this is not the case, there are many ways to protect your home, and our elder care attorneys will work on your behalf to save your home.

Although many people come to us in crisis, the sooner advice is sought from an elder law attorney, the better off the client will be. For example, in light of the Medicaid eligibility rules getting tighter, the laws favor those with time to plan. Also, for clients who are both healthy enough to purchase long term care insurance, and who can afford the premiums, this kind of insurance is an increasingly attractive option. We can advise you as to long term care insurance, as well.

However, even in a crisis, it’s never too late to help a client, even after they have entered into the nursing home. As elder law attorneys, we can help make sure your loved one enters a quality nursing home and implement a plan to pay the nursing home bills without losing all of your loved one’s assets.

We don’t want to waste your time and money. Why take time out of your busy life to meet with us if we cannot help you? Instead, we encourage you to call us for a review of your situation over the phone, at no charge to see if a meeting makes sense. You will know before you meet with us and before you incur any charges if an elder law attorney on our team is able to help.

Medicaid

In order to qualify for Medicaid, the state of New York outlines specific eligibility requirements that an individual must fulfill. Medicaid is typically reserved for low-income individuals with high medical demands due to disability, disease, illness, age or other factors. You may be covered by Medicaid if you have high medical bills, receive supplemental security Income or meet the income and asset test. There may be certain exceptions, so speaking with a lawyer will help determine your eligibility for Medicaid based on your particular circumstances.

Medicare is a government program that provides health care benefits to senior citizens, disabled individuals and individuals with certain chronic illnesses. Medicaid is a need-based government program available to individuals with low income and asset levels.

Medicaid has many rules regarding eligibility including income and asset allowances as well as past financial history. The Medicaid rules are different depending on if you’re applying for community benefits, community based home care or nursing home care. We recommend that you schedule an appointment with one of our experienced attorneys to review your individual needs and circumstances to determine if you are eligible for Medicaid benefits and if not, how to become eligible.

You may still be eligible for Medicaid benefits even if you have excess income. The excess income will be due to Medicaid, the nursing facility or home care agency each month.

If your assets are greater than the Medicaid limits you may have several options. Medicaid has several groups of “exempt” individuals to whom excess assets may be transferred without incurring a penalty period or rendering an individual ineligible for benefits. In addition, even if there is no “exempt” individual to whom you may transfer your assets, we may be able to protect a portion of your assets through certain planning methods. Please contact our office to make an appointment to discuss your asset protection options.

If you have excess income and are in need of community-based care, you may create a Pooled Income Trust to protect your additional income. A Pooled Income Trust is a trust set up with a charity in which you deposit your excess income each month. You then submit your bills, up to the deposited amount, and the Trust will pay those bills each month. This allows you to use your income to pay for your expenses as opposed to paying your excess income to Medicaid or the home care agency.

Medicaid is the payor of last resort. This means that with regards to your medical and/or nursing home expenses, your primary insurance (Medicare) pays out first. Then, your supplemental health insurance (if any) pays out – just as it does without Medicaid – and Medicaid pays the remaining balance.

The income and assets of the spouse of a Medicaid applicant may be protected. In addition, Medicaid has income allowances for the non-applicant community spouse which in many situations allows the applicant spouse to contribute a portion of their income to the community spouse.

The length of the Medicaid review process varies depending on the type of services you are requesting. The review process for community based care applications is approximately 3 to 6 months, whereas the review process for nursing home applications is approximately 6 to 9 months. Please note that these review times are approximate and can vary greatly depending on the complexity of the individual case.

Once your Medicaid application is submitted, your case is considered “Medicaid Pending.” With a Medicaid pending status, nursing homes and many home care agencies will put the monthly billing on hold until Medicaid issues a decision and either Medicaid pays the outstanding balance, or, if the case is denied or a penalty period is issued, you will be billed for any outstanding balance.

After Medicaid approves your application you will begin receiving benefits. Medicaid will create a budget based on your income, assets and needs. Medicaid will pay the medical bills that accrued during the pending period and Medicaid will continue to provide benefits pursuant to their regulations.

If your Medicaid application is denied you may still have recourse depending on the reason for the denial. You may submit a reconsideration request in which you set forth the reasons that the decision is erroneous. If you do not succeed at the reconsideration level, you may attend a Fair Hearing to present your case before an impartial Administrative Law Judge. Our law firm is available to assist you at all levels of the Medicaid process.

For most seniors, obtaining Medicaid to pay for nursing home care is a must. Very few people can afford to pay privately for extended long term care (which is not covered by Medicare).

The nursing home may provide you with a list of attorneys to assist the family with the filing of a Medicaid application. It is suggested that you obtain three attorney references in writing.

If so, one should be concerned about a potential conflict of interest if there is a problem with obtaining Medicaid approval. Based on the admission agreement, the nursing home may take legal action against the family for an unpaid nursing home bill.

The better course of action is to hire an independent, experienced elder law attorney for the filing of the Medicaid application.

At my office, we only represent seniors and their families. We do not represent nursing homes. We have made an ethical decision to act in the best interests of our clients, with no allegiance to any nursing home. We work with our clients and the nursing home to ensure the best quality care for a loved one and to ensure that the nursing home is paid for its services.

Medicaid is a joint federal and state program that pays for home health aides, therapies, prescription drugs and hospital and physician’s bills. Persons receiving Home Relief or Aid to Families with Dependent Children are eligible for Medicaid. Disabled individuals of any age as well as those who are medically needy under the age of 21 or over the age of 65 are eligible for Medicaid benefits so long as they meet the financial criteria. Medically needy individuals are those whose assets and income do not meet the cost of necessary medical care. The Medicaid program will pay for their medical bills once they have spent their assets and/or income which exceed the Medicaid financial criteria on medical bills.

Medicare

Medicaid is a need-based health care program for people with low income and limited assets. Medicare is the country’s basic health insurance program for people 65 and older and many people with disabilities. Medicare Part A provides hospital insurance that helps pay for inpatient hospital care and certain follow-up services. Medicare Part B helps pay for doctors’ services, outpatient hospital care and other medical services. Part B is optional.

One is eligible for Medicare Part A upon turning 65 years old. You are automatically qualified if you receive social security or railroad benefits upon turning 65. You also qualify if you have been receiving social security disability benefits for 24 months. You may also qualify on a spouse’s record, even if you are divorced. Government employees not covered by social security who paid the Medicare part of social security tax also qualify, as do people who have permanent kidney failure that requires maintenance dialysis or a kidney replacement if they are insured or if they are the spouse or child of an insured worker. Anyone who is eligible for free Medicare hospital insurance (Part A) can enroll in Part B by paying the monthly premium. Part B is optional and costs $96.40 per month (in 2008) if you choose to enroll.

If you are receiving social security benefits upon turning 65, enrollment in Medicare Part A is automatic. If you turn 65 and plan to keep working, but do not plan to sign up for social security benefits, you should call 1-800-722-1213 or visit a local social security office to discuss whether you should sign up for Medicare only. Please be advised that there are many other rules associated with Medicare enrollment including penalties for not enrolling in Part B when you are first eligible. You may call the toll free number or discuss this with a local social security office.

Yes, you qualify for Medicare Part A if you have been receiving social security benefits for 24 months. You also qualify if you have permanent kidney failure that requires maintenance dialysis or a kidney replacement, if you are insured or if you are the spouse or child of an insured worker. In order to have Part B coverage, you must enroll and pay the monthly premium.

Generally, only U.S. citizens or permanent U.S. residents 65 years of age and older are eligible for Medicare. They or their spouse must have worked for at least ten years in Medicare-covered employment. Disabled people under 65 years of age, receiving social security disability for two years and people with end-stage renal disease (permanent kidney failure treated with dialysis or a transplant) are also eligible.

Medicare Part A is free if you are eligible because it has been paid for through your taxes while you worked. However, Part B, which is optional, has an additional cost per month should you choose to enroll.

Medicare provides basic health care coverage only. Medicare does not pay for custodial care, which is care that can be given safely and reasonably by a person who is not medically skilled and is given mainly to help the patient with daily living. This includes help with walking, bathing and dressing. However, if you receive a skilled service such as occupational therapy, physical therapy or speech therapy or need a registered nurse to monitor your care, you may be eligible for up to 20 hours of home health aide coverage if you are housebound. Housebound means that you are unable to leave your home without assistance.

Medicare covers up to 100 days of skilled care. The first 20 days are covered in full and the remaining days are covered with a per day co-insurance.

Medicare Part A covers in-patient hospital care, home health services and hospice care. The in-patient hospital services covered include semi-private rooms, meals, regular nursing services, special care such as coronary or intensive care, drugs furnished by the hospital, laboratory tests billed by the hospital, x-rays and radiology services, therapy billed by the hospital, medical supplies including casts and splints, operating and recovery room costs and use of appliances such as wheelchairs. Medicare Part B mostly covers physician services, such as physician services rendered while one is in the hospital. However, there may be limitations to the coverage.

Medicare does not cover most nursing home care; dental care and dentures; routine checkups and the tests directly related to these checkups (some screening, Pap smears and mammograms are covered); most immunization shots (some flu and pneumonia shots are covered); most prescription drugs; routine foot care; tests for, and the cost of, eyeglasses or hearing aids; personal comfort items, such as a phone or TV in your hospital room; and services outside the U.S.
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You are eligible if you are a U.S. citizen or permanent U.S. resident 65 years of age or older and if your spouse has worked for at least ten years in Medicare-covered employment.