Elder Law

Which Court Handles Probate Cases in New York?

Published on: May 28, 2017 | by Ettinger Law Firm

Barring the creation of a trust, all estates must pass through probate court to certify the estate before assets may be disbursed to beneficiaries. In New York state, every one of the 62-counties has at least one Surrogate Court (New York and Kings Counties have two) to hear all types of matters related to decedents and their estates as well as certain types of guardianship proceedings and adoptions.

The law invests these powers to Surrogate Courts through the New York Surrogate’s Court Procedure Act (SCP). The section pertaining specifically to probate cases is NY SURR CT PRO § 201.3 and reads:

“The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires.”

Remarrying as a Senior? Here are a Few Things to Consider

Published on: May 23, 2017 | by Ettinger Law Firm

Getting remarried as a senior can have a whole host of important consequences from estate planning, retirement, and any future medical care needs, particularly if either spouse has children. Without careful planning and consideration before remarriage, seniors may find themselves in unexpected financial trouble and even create a fight in probate court over the estate if new will and testaments are not drawn up.

First and foremost, a remarriage affects the inheritance of the deceased’s surviving family members, even after the trouble of crafting a well thought out last will and testament. Under New York probate laws, surviving spouses are entitled to a portion of the estate, even if the deceased’s will explicitly divides the estate amongst his or her surviving children.

In this situation, each party should re-examine his or her will and consult with an experienced New York estate lawyer to draw up new plans for the disbursement of the estate. Without a revised will following a remarriage, the deceased’s estate may be held up in probate court due to legal challenges over beneficiaries looking to collect pieces of the estate they believe they may be entitled to.

The Fine Print in Nursing Home Contracts

Published on: May 18, 2017 | by Ettinger Law Firm

When we send our beloved elders to a nursing home, we expect them to receive the care and attention need to live happy, comfortable, and dignified lives. Unfortunately for many seniors and their families, nursing home abuse and neglect is an all too common problem facing our nation’s elder care and assisted living system. While we expect nursing homes to do the right thing, nursing home abuse allegations can often lead to time consuming legal fights to recover damages and hold the facility accountable.

To make matters worse, many nursing homes have the power to insert clauses in their contracts with residents that strip away their right to due process in a court of law and instead require any disputes be settled in an administrative process known as arbitration. Because many families make the decision to place a loved on in an assisted care facility under duress, they often overlook key clauses in nursing home contracts.

What are predispute binding arbitration clauses?

When Turning Down an Inheritance Might be a Good Idea

Published on: May 15, 2017 | by Ettinger Law Firm

Being named as a beneficiary to the estate of a loved one often comes with its own set of responsibilities and expectations following the passing of the deceased. Often times, individuals create estates and trusts to ensure their hard earned assets like homes, businesses, and sentimental items remain with close family members to ensure these articles are well taken care of and create a lasting legacy for future generations.

However, sometimes the strings attached with inheriting such assets are simply too much for the beneficiary to bare and could actually create a burden instead of benefit. Many of us have probably seen movies or heard news reports of beneficiaries needing to perform some sort of unusual task to claim an inheritance like taking care of a pet or living in a home for a certain period before the property may be sold.

While many of these examples are rare and impractical to say the least, there are many times when accepting an inheritance can create untenable financial liabilities like paying property taxes on homes and businesses. Despite the financial hardship some inheritances create, beneficiaries may still want to ensure their portion of the estate remains under their sphere of influence and provide some good to other families members down the line.

What are the Rules for Medicaid Asset Transfer in New York?

Published on: May 12, 2017 | by Ettinger Law Firm

Medicaid is a terrific program designed to help older Americans pay for the cost of their prescription medication, hospital care, and even long term assisted living facility needs. Of course, like any other program, the system is in imperfect and comes with its own unique set of limitations, restrictions, and penalties that seniors and their families need to understand in order to take full advantage of under the law.

Designed as a resource to help low income and disabled seniors, Medicaid requires applicants meet certain financial criteria to qualify for benefits. Sometimes, seniors find themselves in a delicate situation where the state considers them too wealthy to qualify for Medicaid but unable to pay for vital nursing and hospital care on their own. In these circumstances, seniors may need to spend down or transfer assets to qualify for Medicaid assistance.

While this may seem like a practical idea, application for Medicaid in New York requires seniors to disclose asset transfers over the previous five-years to ensure applicants are truly in need of government assistance. The Department of Social Services ”looks back” at financial transactions made by the applicant or his/her spouse and may institute a so-called “penalty period” on non-exempt transferred assets which creates a waiting period on benefits which varies depending on the situation.

Erie County Launches New Task Force to Combat Senior Exploitation

Published on: May 8, 2017 | by Ettinger Law Firm

The Erie County District Attorney recently announced the creation of a new enhanced multidisciplinary team (eDMT) to help combat the 1,600 cases of senior financial exploitation reported each year in the country. The approach is a brand new model design to create a public-private partnership across multiple disciplines to investigate, prosecute, and educate the public about the very real danger facing many vulnerable elders both in the county and the state as a whole.

According to the Erie County District Attorney’s website, the eDMT “is coordinated by social worker Kathy Kanaley of Center for Elder Law & Justice, and includes the Erie County District Attorney’s office and representatives from Erie County Adult Protective Services and Senior Services.” Furthermore, the task force includes a forensic accountant assisting in the accounting of stolen funds, as well as a geriatric psychiatrist to help with determinations of capacity.

“This collaboration will help our office spot and aggressively prosecute those who prey on these vulnerable members of society,” said Erie County District Attorney John J. Flynn. “The sooner we can take action, the easier it will be to get justice for these elderly victims.”

What are my Guardianship Options for my Parents?

Published on: April 26, 2017 | by Ettinger Law Firm

As our parents age, many of us begin to take on greater roles concerning basic needs like overseeing finances, medical care, and other tasks. Often times, some form of guardianship is necessary to ensure our loved one’s best interests are executed by financial institutions, hospitals, and even local governments. Even loved ones capable of handling many responsibilities themselves can use assistance from family members.

Fortunately, New York elder law gives family members the right to step in and request guardianship as well as allow competent elders the right to agree to guardianship and allow a family member to make certain decisions on their behalf. Whether you find yourself in either circumstance, an experienced and dedicated New York elder law attorney can help the process goes as smoothly as possible and your beloved elder has his or her needs met.

New York guardianship elder laws

Rights to Life Insurance Policies and Retirement Accounts

Published on: April 20, 2017 | by Ettinger Law Firm

There are many estate planning tools that should be considered when writing a will. While the obvious includable provisions are for assets and property distribution, you should also consider how you want your life insurance policy distributed as well as any retirement benefit accounts. The policies you have subscribed to and pay premiums on will administer a life insurance policy or benefits as you have provided, however, many people forget to amend these policies when they go through events such as a divorce or if they lose a loved one.

Life Insurance Policies

Failing to update life insurance policies can end up benefitting a party you no longer intend to provide for, such as a former spouse who has since remarried, or a family member or friend you have been estranged from. Thus, it is certainly a good practice to amend and update your policy after a major event or to make sure it aligns with your wishes every few years. Making reference to the life insurance policy and the intended beneficiary in your will just goes to further support your claim to show whom you wish to receive the proceeds of policy.

Property and How to Plan For It With Your Estate Attorney

Published on: April 17, 2017 | by Ettinger Law Firm

How property and assets are distributed when you pass can be a sensitive topic that many people do not like to address, in fact, more than half of Americans die without a will every year. This failure to plan for the distribution of assets and property can leave many interested parties at odds and may not reflect what your last wishes were for your legacy. Depending on what you are leaving behind, there are some considerations that must be made regarding your assets.

Depending upon the state you reside in, your property may pass subject to probate or it may pass outside due to pre-documented rights of survivorship or trust language. If you live in a community property state, which means that all property acquired by you or your spouse during the marriage, regardless of who bought it is property of the marriage, then your property will pass subject to probate court. However, passing through probate may be avoided if you have left rights of survivorship language in your will or property ownership documentation. Property is then subject to the estate tax, which may not be the main concern of dissolution, depending on the assets involved.

Additionally, a trust can be set up that will either avoid probate or will continue to be includable in your estate. If you seek to avoid probate, you can form what is called an irrevocable trust, which allows you to put your assets and property in a trust, to be held and owned by the trustee, who works to administer the trust under the governing trust and also make decisions in the best interest of the grantor and any potential beneficiaries. However, if you wish to form a trust but still seek to maintain control of your assets and property by amending or revoking the trust during your lifetime, you can form a revocable trust.

Dental Care and Old Age

Published on: April 13, 2017 | by Ettinger Law Firm

As we continue to age, there are a number of ailments that develop and health issues that we are forced to address and adapt to. While we anticipate problems such as achy joints and the occasional stiff legs, we do often forget about the continued upkeep associated with dental hygiene. Dental checkups are easy to forget about and avoid, especially when you do not feel like anything is wrong, however, as soon as something starts to ache, the check up can turn into a very expensive visit. Many elderly individuals avoid going to the dentist due to the associated fear of costs and lack of coverage.

Medicare does not provide dental care coverage for their insured beneficiaries, which leads many to either go without coverage or to retain an independent plan that could cost them more than they can afford in their budget. Millions of elderly Americans rely on Social Security and Medicaid or Medicare to support them in their old age, however, these programs continue to shrink in size and will not be able to provide for all of those soon to be retirees. Medicare does provide dental care for some chronic medical conditions such as reconstruction following an accidental injury, or extraction due to radiation exposure for neoplastic diseases of the jaw, a very specific list. Even with those exceptions, the reimbursement rate is so low that some doctors will not accept Medicare coverage in their offices because they know how difficult it becomes to get paid.
The National Center for Health Statistics has found that 20% of Americans over 65 years old have cavities that are currently going untreated, with the numbers steadily increasing with old age. With teeth becoming more brittle and procedures performed decades earlier needing maintenance, many elders find themselves in the Emergency Room due to the pain. There are a number of nonprofits however across the nation that offer free or discounted dental cleanings for elderly patients that do not have dental coverage and cannot afford it. Additionally, many universities offer discounted cleanings as well as procedures by having elderly patients be seen by their class of graduating dentists. They will offer up front costs of services as well as payment plans in an effort to avoid having the individual rack up debt.