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Suffolk County, NY Estate Planning and Elder Law Blog

Tuesday, December 16, 2014

Consenting to a Probate of a Will

Q: My mother recently passed away and I received something in the mail from an attorney’s office called a “Waiver of Process; Consent to Probate”, what does this document mean?

A: You received this document because the nominated Executor is trying to “probate” your mother’s Will.  Probating a Will means that the nominated Executor is submitting a petition to Surrogate’s Court and asking that the Court issue “letters testamentary” which basically validates the Will and allows the Executor to act.  Most people think that upon death, the Executor is automatically empowered to act.  However, the Executor must first be appointed by the Court.  The Will must be probated in the Surrogate’s Court before the Executor can act for the estate.  The law requires that every person that has an interest in the estate be given notice and an opportunity to object to the Will.  If your mother died without a Will, her spouse and all of her children are “interested parties” and “natural distributees” which means that those parties would inherit from her estate if she died without a Will.


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Monday, December 15, 2014

Not Your Grandmother's Will
If you happen to have a copy of your  parent’s  or grandparent’s Last will & Testament, it is likely that the estate plan was simple- everything to the spouse, then when the second spouse dies, everything to the children. We call these “sweetheart” or “I Love You” Wills.  While these were easy to understand, they did not give much protection to a surviving spouse that might need Medicaid to pay for homecare or nursing home care.  The problem, or maybe the benefit of living longer is that we are likely to live out our last days needing some care.  With the cost of care both at home and in a facility reaching astronomical amounts, putting together a plan to preserve assets is of paramount importance. 
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Friday, December 05, 2014

UTMA and 529 College Accounts

Q:  My parents set up UTMA and 529 College Savings accounts for my children.  I am not sure exactly what effect these accounts have on their financial aid in the future or whose assets they are if my parents need nursing home care.

A: UTMA, or the Uniform Transfer to Minors Act are custodial accounts that are set up by an adult on behalf of a minor. All the money and assets in these types of accounts are turned over to the beneficiary’s control at the age of 21. Once the beneficiary reaches age 21, they can use the funds in any way they choose regardless of your expectations on how the funds should be spent.


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Wednesday, December 03, 2014

Outright Transfer of Home

Question: My friend suggested that I transfer my house to my children in case I need nursing home care in the future. Is this advisable?

Answer:  In almost all cases our answer to this question is no. Your friend is likely suggesting this because she has heard of the five year look-back. The look-back refers to the time period immediately prior to the filing of a Medicaid application.  During this time period the Department of Social Services will review your assets and any transfers that you have made.  To the extent that you have made transfers or have too many assets in your name to qualify, further planning will have to be done in before you can qualify for Chronic Medicaid to cover the cost of Nursing Home care.  Because of the look-back, in some cases, planning and transfer of assets is recommended.


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Monday, November 17, 2014

A DIY Disaster in Estate Planning
As a recent first time homeowner, the phrase “Do It Yourself” or “DIY” takes me back to the late nights this past February of spackling, sanding and painting all of the walls in my house with my husband. We were fortunate that this was the only work that needed to be done. We were also fortunate because there were no structural, electrical or plumbing problems. I say fortunate because we know our limits; we know that we are not equipped or skilled enough to take on major plumbing or electrical projects. I know that it is hard to resist the temptation of trying to save money in the short term by tackling these repairs and projects on your own. However, one has to be realistic about the possibility of a DIY disaster when trying to take on projects that should be left to professionals. This rule applies to home improvement as well as to estate planning.  
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Friday, November 07, 2014

Community Medicaid- Married Couples are Safe …for now!

Community Medicaid- Married Couples are Safe …for now!

Let me tell you a story about clients of mine.  It is about a husband and wife, mid 60’s.  The wife has Alzheimer’s disease and needs assistance with all activities of daily living.  Her husband is her primary caregiver but he cannot give her all the assistance she needs.  They manage to get by and she can remain in their home because community Medicaid pays for her health care aides.   Community Medicaid has been a life saver for this couple.  Prior to her receiving these homecare benefits, her husband took care of her 24/7.  Since she wakes up all night long, his job was not easy and he was perpetually exhausted.  Once we obtained care at home, the husband could sleep through the night and they settled down to a schedule that was manageable.  However, their lives were changed in an instant with the brush of a pen stroke.  On August 5, 2014, out of the blue, the New York State Department of Health issued a new directive that changed their lives and their Medicaid budget.  The new Medicaid directive required them to contribute more than $2600 per month in household income towards the cost of care OR lose the care that the wife so desperately needed.


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Wednesday, October 22, 2014

Who Would Inherit From an Estate if Someone Dies Without a Will?

Q: Who would inherit from an estate if someone dies without a will?

A: Passing away without a will is known as dying “intestate”.  Administration is the process in which letters are issued to a distributee of the decedent who then collects the decedent’s assets, pays the decedent’s debts and then distributes the remaining assets to the distributees.


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Wednesday, October 22, 2014

Can I Resign or Decline Being an Executor?

Question:  My aunt recently passed away and I just found out that I was named executor of her Will.   I really do not want to serve.  Can I decline or resign from being executor?

Answer:  Just because you are nominated as executor of a Will does not mean that you must serve.  You can renounce your rights as executor and decline to act by simply signing and having notarized a Renunciation of Nominated Executor form and filing it with the Surrogate’s Court in the county in which your aunt resided.  If the Will nominates a successor executor, that individual would then have the right to seek to probate your aunt’s Will.


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Monday, October 20, 2014

Capacity to Sign Power of Attorney

Question: My mother has just been diagnosed with Dementia.  It is in the early stages and she is still very lucid, can she still sign a Power of Attorney?

Answer: It depends.  For starters, a Power of Attorney is the document which names a person or persons to handle your business and financial decisions. A Power of Attorney is valid when signed and permits the Agents named to step into your shoes and conduct all business and financial decision as if they were the Principal themselves.    For that reason, in order to make the decision to name a person as an agent to act on your behalf the law requires that you, as the principal, possess a certain level of capacity.  When a person is diagnosed with any cognitive deficit the concern of who will act for them if a time comes that they no longer can takes on significant importance.


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Wednesday, October 15, 2014

Revocable Trusts

Question:  My friend just created a Revocable Living Trust and I am not sure if I should be considering creating one as well.  I am in my sixties and have an estate worth approximately $800,000.00.  My current Last Will and Testament disinherits my estranged son.  Is a Revocable Trust something I should consider?

 Answer:  A Revocable Living Trust is a trust that you create during your lifetime and is great tool for those who wish to avoid the probate process. A Revocable Trust is designed to give you, as the grantor (creator) great flexibility.  With a Revocable Trust, you may act as your own Trustee, allowing you to maintain complete control over your assets during your lifetime. 


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Monday, October 06, 2014

Caring for a Pet

Q:  I have a dog that I want to make sure is properly cared for after my death. Can you give me any advice on how to do that?

A:   You may have heard in the news recently that Joan Rivers and Lauren Bacall left a portion of their estates for the care of their beloved pets.  Anyone that owns a pet or ever has understands exactly what Rivers and Bacall were doing, ensuring that pets would be properly cared for after they were gone. If you are a pet owner, you should follow the lead of Rivers and Bacall, no matter the size of your estate.


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© 2014 Nancy Burner & Associates, P.C.
12 Research Way, East Setauket, NY 11733 | Phone:631-941-3434
82 Main St., Westhampton Beach, NY 11978 | Phone: 631-288-5612
1115 Broadway , Suite 1100, New York, NY 10010 | Phone: 631-941-3434

Attorney Website Design by
Amicus Creative