Frequently Asked Questions

Without a properly written will, you are giving up your legal right to decide who will receive your property after your death, and who will not receive your property.  You may also be creating additional costs and complications for your heirs after you die.  If you have minor children, you lose the opportunity to determine who will serve as guardian for them.  The court will name the guardian and it may not be the family member or friend that you would want.

Both a will and a trust are effective estate planning documents that guide the disposition of one’s assets, but in different ways. Both a trust and a will are legal documents that express an individual’s wishes as to the distribution of his or her assets after lifetime. But whereas a will would only go into effect after the individual’s lifetime, and only through a court process known as “probate,” a trust is a legal entity of its own that can be established and take effect during an individual’s lifetime, and avoid the court process for any assets transferred to the trust during lifetime. It is common to prepare both a will and a trust in estate planning. Here are some main differences between a trust and a will:

	Can you name a guardian for a minor child?	Does it need to go through probate in  Surrogate’s Court?	Can it be revoked or amended?	Is it private or public record?
Trusts	No	No	Sometimes (always with revocable trust)	Private
Wills	Yes	Yes	Yes	Public after death

The laws in New York state have very specific rules regarding what makes a will valid, both in the way it is written and the way it is signed.  A will which is not prepared under the supervision of an attorney runs the strong risk of being declared invalid after your passing, at which time it is too late to fix.

Many, many unintended problems could arise when you add co-owners to your property. The most obvious is your loss of ownership and control over the property, as the co-owner owns their share now, not after you die.  You might become a party to a lawsuit of the co-owner, and you might lose the asset to a creditor of the co-owner. There may very likely be tax implications that must be carefully considered. If the property is real estate, there are many more legal issues that could arise if you add a co-owner. Further, only specific forms of co-ownership will result in a surviving co-owner automatically owning the entire property.

If the account has a joint owner or is a “transfer-on-death” account, then rules for those types of accounts will apply.  However, if you are the sole owner of the account, then after your death, nobody has authority to access those funds unless the Surrogate’s Court gives them that authority.

Do not confuse a will (a last will and testament) with a living will. A Last Will and Testament (or a “will”) is only operative after someone passes away. A Living Will is only operative during one’s lifetime. A Last Will and Testament, also referred to as a “will,” sets forth a person’s wishes regarding the disposition of their property upon their death. On the other hand, a Living Will is a document which sets forth your wishes regarding your end-of-life health care. A Living Will exists as a written proof of your desires regarding such issues as withholding life support, and can be used as evidence of your wishes when you cannot speak for yourself.

Both a will and a trust are effective estate planning documents that guide the disposition of one’s assets, but in different ways. Both a trust and a will are legal documents that express an individual’s wishes as to the distribution of his or her assets after lifetime. But whereas a will would only go into effect after the individual’s lifetime, and only through a court process known as “probate,” a trust is a legal entity of its own that can be established and take effect during an individual’s lifetime, and avoid the court process for any assets transferred to the trust during lifetime. It is common to prepare both a will and a trust in estate planning. Here are some main differences between a trust and a will:

	Can you name a guardian for a minor child?	Does it need to go through probate in  Surrogate’s Court?	Can it be revoked or amended?	Is it private or public record?
Trusts	No	No	Sometimes (always with revocable trust)	Private
Wills	Yes	Yes	Yes	Public after death

A trust agreement is a document that gives clear instructions that you want followed for property held in the trust for your beneficiaries. Common objectives for trusts are to avoid probate, to reduce the estate tax liability, to protect your property for long term care planning, or to control specific distribution of your estate even after your lifetime. There are three important parties to a trust. The first is the “grantor” or “settlor”, which is the person(s) who is creating the trust. The grantor creates the trust and puts his or her chosen assets into the trust. The second is the “trustee”, the person(s) the grantor chooses to manage the assets in the trust. The grantor appoints the trustee to take good care of the assets in the trust according to the instructions written in the trust document. The third is the “beneficiary” or “beneficiaries”, the person(s) for whose benefit the assets are held and managed. The trustee has the duty and authority to manage the assets for the benefit of the beneficiary, who is entitled to receive the assets in the amounts, percentages, and at the time indicated in the trust. It is common for one person to play more than one role in a trust.

As you might guess, an irrevocable trust cannot be changed or revoked.  Some of the reasons irrevocable trusts are used are for asset protection purposes such as estate tax planning or long term care planning.  While you will not retain control of your assets with an irrevocable trust, there are still tools that can be implemented to allow you to retain a level of control such as changing your ultimate beneficiaries, or removing and replacing a trustee if you are not happy with their trust administration. However, it is the general relinquishment of control that enables you to qualify for Medicaid benefits or minimize estate taxes. As with any legal document, always be sure you completely understand how your irrevocable trust works before signing it and transferring your assets into it.

While it is true that the legal fee to prepare a trust may be higher than preparation of a will, keep in mind that probate will most likely cost more in attorney’s fees, court fees, time and loss of control. In addition, you are likely preparing a trust for additional valuable benefits that far outweigh the cost of setting up the trust, such as protecting your assets, more specific control of your assets after your lifetime, minimizing the chance of a challenge to your will by a disgruntled family member, or minimizing taxes.

Not quite. A trust could be an appropriate part of the estate plan of anyone who owns property (including real estate, bank accounts, brokerage accounts and other investments, etc.). You don’t have to be wealthy to enjoy the advantages of a trust, such as avoiding probate, protecting your assets due to your incapacity, protecting your assets in the context of Medicaid planning, and keeping your estate plan private and out the public eye and the courts.

Not at all.

You will have to change titles on your real estate and other assets with formal titles such as bank accounts, stocks, other investments. This is not difficult, and our office can help you. Transferring real estate will require preparation and recording of a new deed and transfer tax documents. Each financial institution has its own process, but it can be as simple as giving instructions to the bank to change the name of the owner on your account. Sometimes your objectives can be accomplished without actually retitling assets, but simply designating the trust as beneficiary. An attorney can advise you on the best process in your particular situation. Remember, a trust will not achieve your objectives if you do not actually retitle your assets appropriately. An integral component of the estate planning process is funding your trust.

If you are the trustee of your revocable trust, then you still have full control and authority over the assets you choose to place in your trust. If you are preparing and funding a trust for long term care asset protection or for tax planning, then yes, you will be relinquishing a certain amount of control. Remember, if you still controlled the assets in the trust, then Medicaid (or the IRS) will still consider them yours and your objective wouldn’t be accomplished.

First of all, you may be right. A trust is not for everyone and your particular situation should be evaluated by a qualified attorney experienced with trusts. That being said, there are several reasons a trust may benefit you even if you have no estate tax exposure. After you die, the court must be petitioned to “probate” your will. Probate is the process by which your will is declared valid by the court, your executor is given authority, and the court makes sure that your wishes as stated in your will are carried out. Probate takes time, can be quite expensive, and is a matter of public record, so you lose control of privacy and your loved ones may need to wait a long time before they could administer your estate (i.e. sell your house, access your bank accounts, etc.). A “living trust” (a trust created during your lifetime) can avoid these issues and make it much easier for those who survive you. Also, a will has no effect until after you die. A living trust can keep control of your assets out of the courts if you become incapacitated. As an alternative to a power of attorney, or the need for someone to petition the court to appoint a guardian for you, the successor trustee (if you were the trustee of your own revocable trust) can seamlessly step in to manage the assets in your trust at your incapacity. In addition, there are a variety of other reasons a trust can be extremely beneficial to your estate plan, controlling the specific distribution or administration of your assets for a period of time after your death, for long term care asset protection (Medicaid planning), to hold in trust for a minor, to avoid the distributions in your estate from being challenged, to protect the inheritance of a beneficiary with special needs, or a beneficiary with a substance abuse problem, to name just a few reasons.

A Descendants Trust, also sometimes referred to as an Inheritance Protection Trust is a type of irrevocable trust that manages your children’s inheritance in trust rather than giving them outright distributions. This type of trust has many advantages, such as:

• If properly structured, the trust assets can be exempt from federal estate tax when the beneficiary passes.
• The trust assets are considered separate marital property and therefore are protected in the case of divorce.
• The trust assets are protected from creditors of the beneficiary.
• It is more likely that the assets stay within the family bloodline.
• You can direct management of the trust to be as restrictive or as flexible as you would like.

There are many public benefits available to individuals with disabilities. While a family could have substantial wealth and believe that their loved ones with special needs would never need to access government benefits, they could be making a serious miscalculation. While most of a disabled individual’s needs could be met with private insurance and private pay, there are several excellent benefits that can only be accessed through Medicaid programs and cannot be paid for privately. Some of these programs may include community habilitation programs (providing skills and support in the home or community), day habilitation programs, eligibility for group home residency, and supported employment and employment training programs. Medicaid has strict financial requirements for eligibility. Therefore, even if some planning would be required, it may be a very worthwhile endeavor to pursue Medicaid eligibility to provide benefits and opportunities for your loved one that money itself can’t buy.

By taking appropriate estate planning steps, you may ensure the future and the ability of a person with mental illness or other disabilities, who needs or is receiving public benefits, to live comfortably when you’re no longer around to be the caregiver. At the same time, you may preserve governmental benefits that will pay for essential things like medical treatments, prescriptions, special residential arrangements, and the like, while the funds you leave may be used for supplemental items or “extras” not covered by governmental benefits.

This is a trust, which is created by an attorney that can be funded by a family member, an inheritance, insurance policy or other assets.  It is used to supplement public benefits by paying for extra items that are not covered by Medicaid or SSI, such as vacations, computers and other items to enhance a beneficiary’s quality of life.

The Trustee would pay for items to benefit the beneficiary that are generally not provided by public benefits. By way of example, distributions might be made for expenses associated with household goods, recreational equipment, entertainment, and travel expenses.

A first party Supplemental Needs Trust is created with the funds of a person with a disability under age 65, and would have a pay-back provision reimbursing the state at the beneficiary’s death for Medicaid assistance provided.  A third party Supplemental Needs Trust created with funds of someone other than the beneficiary and does not have a pay-back provision. If advance planning was not done, and a person died leaving an inheritance for a disabled individual, a third party trust would no longer be an option, and the disabled individual may have no alternative other than funding a first party trust to preserve his government benefits.

If your child receives an inheritance from your estate without advance special needs planning, his or her government benefits will immediately be at risk upon your passing. Imagine the trauma of losing a parent, often a primary care-taker and simultaneously having the stress of potentially losing government benefits and requiring the need for immediate, and likely costly, legal planning. Even with immediate legal planning at that time, often, the only option is creating a “first party” special needs trust, which assets would be subject to Medicaid payback upon the child’s death. On the other hand, you can plan in advance to protect your child’s inheritance immediately upon your death by establishing a supplemental needs trust under your will, or a standalone “third party” special needs trust that would be a seamless receptible for the inheritance.

This is a written statement drawn up by the person creating the trust (the “grantor”, often a parent of the beneficiary), that outlines the wishes of the parents as to how the money in the Supplemental Needs Trust should be used for the beneficiary, where the beneficiary should live, how the residence will be maintained, who will monitor the care and any other items important to the grantor. Weight will be given to the grantor’s intent in the creation of the trust if a situation arises and it is unclear on how to proceed in trust administration.

When you apply for Medicaid in the state of New York, the New York State Department of Health reviews all gifts given and transfer of assets from the past five years to determine how long the applicant must wait before receiving Medicaid benefits. Since the five-year look back period can affect a loved one’s long term care options, is advisable to consult with an elder law attorney before the long-term care is actually needed.

In New York it is true that you don’t have to use an attorney to prepare a Medicaid application. In fact, you can do it yourself. But remember that the law has many nuances and intricacies. Imagine having a nursing home prepare and submit your parent’s Medicaid application, and it is approved.  But after parent’s death, you find out that a lien has been placed on your parent’s house in the amount of the benefits which Medicaid paid out for your parent. Nobody advised you that the house could have been protected under the law under one of the Medicaid exceptions to the transfer of assets rules. While someone who works for a nursing home may have the best interests of the nursing home in mind while preparing your Medicaid application, an attorney that you hire to represent you has an ethical duty to advocate for you and your interests. Furthermore, while it is legal for the nursing home, or a non-attorney Medicaid expediter assist you with your Medicaid application, they are not authorized by law to give you legal advice to maximize the protection of your assets in the process of accessing Medicaid benefits. Having an attorney advise you how to best protect your assets, using different techniques and exceptions to the transfer of assets rules, may ultimately result in savings exponentially greater than the attorney’s fee. And vice versa, failure to use the assistance of an attorney can potentially have results to the opposite effect.

Absolutely yes. Elder law attorneys work within the guidelines of the law to help you qualify for benefits. There are many legal planning opportunities that an elder law attorney can implement for you or your loved one should the need for long term care arise.

Yes. Eligibility rules are different for Medicaid home care than for Medicaid nursing home care, and it is possible your parent may very well qualify for Medicaid home care fairly easily.

Maybe, but the New York State Department of Health lists the annual estimated average nursing home rate in 2023 at $169,632 on Long Island and $169,704 for New York City. Most people without unlimited wealth who enter a nursing home will eventually have to rely on Medicaid to assist in payment of their health care. If you or a loved one are searching for the right nursing home, please be sure to take a look at this checklist for help.

Yes, most likely he or she can. Medicaid is a “means tested government entitlement.” In plain language, this means that a person’s income and resources must be below a certain level in order to be eligible for benefits, among other eligibility requirements. With proper planning, a person can protect his or her assets. Many people are often misinformed regarding Medicaid planning issues, and think that there is nothing they can do to protect their assets and must first spend them down to pay for their nursing home fees until they are below the Medicaid level of assets limit. This is almost always not true!  In most cases, at least some assets can be protected even at a very late date. However, the earlier the planning is started, generally the more assets can be protected.

The answer varies by state. In New York, in order to be eligible for Medicaid, there is an asset limit of $30,182. There are ruled relating to income that are different for community care and nursing home care. Even if you have income or assets greater than the Medicaid eligibility limits, there are options to plan to allow you to protect your finances and become eligible for Medicaid long term care services.

Transfer penalties for transfers made for less than full consideration are not imposed on exempt transfers made during the Medicaid lookback period. Such exempt transfers include transfers to a spouse, disabled child, or to certain exempt trusts. In addition, a person’s primary residence can be transferred without penalty to:

• A spouse
• A child under the age of 21 years old
• A blind or disabled child of any age
• A sibling with equity interest in the home and lived in the home for at least one full year immediately preceding the Medicaid applicant’s institutional care
• An adult child that lived in the home for at least two full years immediately preceding the Medicaid applicant’s institutionalization to care for his parent which delayed the need for the institutional care

There are other exceptions and strategies to implement that should be pursued with the careful guidance of an experienced elder law attorney.

Currently, Medicaid’s 5-year look back period applies only to Institutional Medicaid but that may be changing. New York proposed legislation to implement a 30 month (2.5 year) look back period for Medicaid applicants looking to be approved for Community Medicaid. It is important to note that this is just a proposed legislation that the earliest It is expected to go into effect is April of 2024, but unofficially, there is information that it would be delayed even further.

No. There are specific laws regarding which family members are entitled to receive a decedent’s property if that person dies without a will. Click here to see a chart that explains who is entitled to the estate.  

New York State has specific laws that cover the distribution of a decedent’s assets if he or she dies without a will.  The law also determines the selection of the person who will act as “Administrator” of the estate and have the authority to handle estate matters.  However, this does not happen automatically, and someone must petition the Surrogate’s Court in the county where the decedent was domiciled to be appointed as “Administrator.”  A consultation with an attorney who practices in the area of probate or trusts and estates can be very helpful in this situation.

The person who is nominated as Executor in the will usually petitions the court for probate.  This does not happen automatically, and may not be necessary in every case.  A consultation with an attorney who practices in the area of probate or trusts and estates can be very helpful at this point. If you are in possession of the original will, whatever you do, DO NOT UNSTAPLE OR REMOVE THE BINDINGS OF THE WILL.

Your first priority in the time of grieving should be focused on the funeral arrangements.  You should determine whether or not your loved one had pre-planned funeral arrangements and/or a cemetery plot deed. When the immediate arrangements have been taken care of, you should schedule a consultation with an attorney who can assist you with the probate or estate administration process.

No. A Durable Power of Attorney terminates when the principal dies. There is an abridged process to obtain smaller amounts of money from a deceased parent’s bank account, but for larger estates, the bank needs legal confirmation of who is authorized to receive the funds. Letters Testamentary are issued by the Surrogate’s Court to the nominated Executor of a will when the will has been accepted by the court for probate. The “Letters Testamentary” (or Letters of Administration if there is no will) indicate the Executor’s (or Administrator’s, if there is no will) authority to act in connection with the decedent’s estate. The only way to obtain Letters Testamentary is through a probate (or administration) proceeding in the Surrogate’s court.

It would be important to enter the premises to find funeral and burial information, insurance policies, and a will. You will have to file a petition to enter the property at the Miscellaneous Department of the Surrogate’s Court in the county where the decedent lived. When the court order is issued, you should contact the police precinct that holds the keys and follow their instructions.

Currently, in 2023, if a NY estate is less than $6,580,000, there is no estate tax.  New York does not have gift tax, but will “claw back”, or include, any gifts made within three years of date of death when calculating the value of the estate for estate tax purposes. If an estate is more than 3% over that exemption amount (more than $6.9MM), the exemption is lost and the entire estate is taxed from dollar 1 (sliding scale up to 16%). There are strategies to reduce or even eliminate this tax with proper advance planning.

If you are a resident of New York, then, none. New York State does not have inheritance tax. Further, there is no federal inheritance tax. That means that a person that is a resident in New York can inherit any sum of money without being subject to any inheritance tax. There are federal and state estate taxes, though, if an estate is above the estate tax exemption amounts. Taxes are assessed on the value of the deceased person’s estate and would be paid from the estate, before being distributed to the beneficiaries of the estate (or trust). That being said, it could be the responsibility of beneficiaries to pay the estate’s tax from assets that they have inherited, if there are no estate funds to cover the assessed taxes due.

Since the law considers animals to be property, you cannot leave money to your pets but you can still ensure they have a good life after your death. You can use your estate planning devices to give your pets to a specified person or organization. Additionally, you can set aside money from your estate, for example by utilizing a Pet Trust, to make sure the new caretaker has the resources to take good care of your pet.

A Descendants Trust, also sometimes referred to as an Inheritance Protection Trust is a type of irrevocable trust that manages your children’s inheritance in trust rather than giving them outright distributions. This type of trust has many advantages, such as:

• If properly structured, the trust assets can be exempt from federal estate tax when the beneficiary passes.
• The trust assets are considered separate marital property and therefore are protected in the case of divorce.
• The trust assets are protected from creditors of the beneficiary.
• It is more likely that the assets stay within the family bloodline.
• You can direct management of the trust to be as restrictive or as flexible as you would like.