New York Estate Planning & Elder Law Blog

What are the Rules for Appointing an Executor in New York?

Published on: August 11, 2017 | by Ettinger Law Firm

Estate planning is something everyone, regardless of age or wealth, should take care of in order disperse assets and have final instructions carried out. Whether that plan be a last will and testament or a trust, folks need to create a plan early on in life and update their estate planning as life events like marriage, buying a home, or acquiring wealth. One of the most common ways for folks to settle their affairs is to create a last will and testament and name an executor to oversee the will in probate.

Often times, executors to estates are close family or friends to the testator, the person crafting the will. The executor will bring the will through probate court, taking stock of all the deceased’s assets and debts and ensuring creditors are paid and the assets are dispersed to the proper beneficiaries, which may also include the executor.

However, New York does place certain very limited restrictions on who may serve as an executor to an estate. Under N.Y. Surr. Ct. Proc. Act § § 103, 707, the basic rules for serving as an executor of an estate are:

The Importance of Flexibility in Estate Planning

Published on: August 9, 2017 | by Ettinger Law Firm

While some aspects of estate planning can seem pretty rigid, it is important to look at them while keeping an eye on things that will allow for some flexibility. By building flexibility into your estate planning tools where it makes sense, you can save yourself from headaches down the road and also plan effectively for the unexpected events that happen during life. Additionally, flexibility in your approach to estate planning will allow you to effectively plan for changes in tax policy and even the value of your assets so that such changes will not significantly impact your ability to distribute your assets according to your wishes.

Determine Tax Consequences

One of the first things to do when building flexibility into your estate planning portfolio is to determine which options will have the greatest impact on taxes, not only for you but also for your heirs. This is especially important for younger people beginning the estate planning process. One of the most common questions is whether or not you should try to distribute your assets through lifetime gifts or if you should keep them in your estate to be distributed later. Without having a crystal ball to predict the future of the estate tax, this really depends on the current and potential value of the assets in question.

Ways to Spend Down Assets for Medicaid

Published on: August 7, 2017 | by Ettinger Law Firm

Medicaid is an important needs-based program to help pay for the vital healthcare of millions of at risk people in this country. In fact, many older Americans plan on using some part of Medicaid to pay for nursing home or in-home nursing care later on in life only to find out they do not qualify for the program because they own too many assets.

Fortunately, with a little forward thinking and estate planning, these individuals can spend down their assets to qualify for Medicaid and avoid possible look back penalties, if applicable. In fact, you may already be working on some of these types of thing already and never knew they would help you qualify for Medicaid.

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New York Voluntary Administration

Published on: August 3, 2017 | by Ettinger Law Firm

It is important to remember that whether your estate is subject to probate or not, you should make sure that you have designed a comprehensive estate planning strategy that effectively distributes all of your assets so that your family is not forced to rely on the state to make important decisions regarding the distribution of your estate. At the same time, smaller estate may be eligible for a process known as voluntary administration in New York. This process is also called disposition without administration or small estate proceeding, but regardless of what it is called it is important to understand the process especially if it may be applicable to you.

Basics of Voluntary Administration

Voluntary administration can take place whether or not the deceased person has left a Last Will & Testament. Typically, only personal property is eligible for distribution through voluntary administration. This means that if a deceased person solely owned real property such as a home that you plan to sell, then such property would not be eligible for voluntary administration and would presumably exceed the value of the small estate threshold. Currently, the New York small estate threshold is set at $30,000 which means that any estate valued over that amount will still be required to go through probate. Generally, any interested party may file to become the voluntary administrator of a deceased person’s estate that qualifies for voluntary administration.

Planning Ahead with your Estate to Avoid Medicaid Estate Recovery

Published on: August 3, 2017 | by Ettinger Law Firm

Medicaid provides valuable health care coverage to millions of low-income adults, children, women carrying children, persons with disabilities, and the elderly. The program is jointly funded by states and the federal government and is administered by the states. For many seniors, Medicaid provides them with the life-saving nursing home and in-home nursing care they need to live comfortable, dignified lives.

However, not all services provided by Medicaid are completely free and recipients sometimes need to pay back the state and federal governments for certain types of services rendered, particularly nursing home or home care aid. In fact, the state may go so far as to try and recover assets from a deceased’s estate if he or she received nursing home or home health care after the age of 55.

Under 18 NYCRR Section 360 -7.11, the state of New York can attempt to recover up to 10-years worth of Medicaid services provided before the deceased’s passing if the individual received nursing home care, had been deemed a “permanently institutionalized individual, and owned a home. However, it is important to know if the deceased left behind a surviving spouse, child under 21-years old, or an adult child deemed permanently blind or disabled then Medicaid cannot place a lien on the home.

Is your Home Prepared for your Golden Years?

Published on: August 1, 2017 | by Ettinger Law Firm

As we all know, aging presents a new and unique set of challenges each of us will face as we grow older. Despite that, most of us expect to remain in our homes and continue living with the independence we enjoyed for our adult lives. While it is certainly possible to maintain a high level of independence in our older years at home, there certain considerations we should always take into account to ensure we live in a safe and healthy environment.

First, before considering anything about your home, you should have your estate in order. No matter how young you may be, we all need a last will and testament and instructions in case of an unforeseen event. Once you have taken care of your estate, either through a will or a trust, you are ready to start thinking about ways to ensure your home is accommodating to your changing lifestyle.

If you are one of the many people with mobility issues, you will want to consider installing aids around your home to make getting around the house easier. Even once simple tasks like showering and going up and down stairs can become a challenge in old age. Some home mobility modifications you will want to think about are grab bars, bath chairs, and life chairs.

What Can I Do if I Have Been Denied Medicaid?

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

As people age, many count on Social Security and Medicare to help them live happy, healthy, and comfortably in their golden years. However, some older Americans are unable to fully provide for themselves and must seek assistance before they become eligible for the landmark elder social services we have become accustomed to. Hard economic times, disability, and other unforeseen events are just some of the reasons elders may be eligible for Medicare.

One of the most important parts of the Medicare program is the nursing home care services members are eligible to receive, particularly seniors. However, not everyone may qualify for Medicare after applying, leaving many families to wonder how they will take care of their beloved elders. Fortunately, denied applicants are eligible to receive a Fair Hearing at their local Medicare office.

What is a Fair Hearing?

Improving the Impact of Wealth Transfers

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

Estate planning is a complicated process that involves a great deal of different nuances and other important aspects that can sometimes be overlooked. One of the most overlooked aspects of estate planning is preparing heirs for inheritance from an early age. According to a recent article from InvestmentNews.com, not doing so is one of the reasons that far less wealth was transferred to baby boomers from previous generations. Now, by engaging in responsible and comprehensive estate planning strategies with an experienced estate planning attorney, you can work productively to make sure that you are able to transfer as much of your wealth as possible to future generations according to your wishes.

Factors that Diminish Wealth Transfers

Being aware of various factors that can diminish wealth transfers may help you avoid those pitfalls. These factors include:

What are the Time Deadlines to Contest a Will in New York?

Published on: July 25, 2017 | by Ettinger Law Firm

In New York, there is no set time deadline to contest an estate. Rather, heirs, beneficiaries, and other interested parties will receive notice from the court the executor of the estate intends to enter the last will and testament into probate. However, there are certain deadlines for challenging other aspects of the will, including the accounts of the estate and allegations of theft by the executor.

Before the estate can be divided amongst the beneficiaries, a New York Surrogate Court must accept the last will and testament and enter the estate into probate. After the testator passes away, the surviving spouse and children are informed of the individuals passing, regardless of whether the will mentions these persons.

Next, the executor of the estate will need to ask each of the deceased’s heirs to sign a waiver allowing the estate to enter into probate. Often times, this is not an issue since heirs are often named as beneficiaries to the estate and were hopefully in good standing with the testator before his or her passing.

Conditional Bequests and Devisements

Published on: July 21, 2017 | by Ettinger Law Firm

The law generally gives benefactors great leeway to set conditions for beneficiaries to inherit assets from an estate or trust. This is because the benefactor has every right to disperse his or her assets while beneficiaries have no such right. Often called “dead hand control,” these conditions are often meant to promote a certain type of lifestyle or at the very least prevent beneficiaries from harming themselves with the wealth passed on.

When conditional bequests and devisements are attached to a last will and testament, probate courts rarely concern themselves with whether the conditions are fair to heirs or even wise to try and implement. Rather, probate courts function to ensure proper transfer of assets and that the deceased’s wishes are carried out.

Some situations where benefactors may attempt to impose certain conditions for inheritance can include requiring an alcoholic seeking treatment, children and grandchildren holding down steady jobs, or even finishing school before collecting inheritance. Unfortunately, theses of demands rarely work out beneficiaries sometimes would rather choose to follow their free will than comply with demands of morality or industriousness.