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2016 Articles

Using Pooled Income Trusts in Home Care Medicaid Planning

Question:  My parents are in their late 70’s. My mother is in good health, but my father has suffered a series of strokes over the past years which have left him weak and in need of some assistance with his daily activities.  As a family we feel strongly about keeping Dad at home, however we are concerned about Mom’s health as she is his primary caretaker these days.  Mom and Dad own their home and each receive social security and a pension.  Other than that, more »

Why Do I Need a Will?

Question: I am a married with two grown children. I want my wife to inherit all of my assets so why do I need a Will? Answer:  While many people assume that their spouse will automatically inherit their assets if they die, this may not be the case.  If you die without a Last Will and Testament, your assets will be distributed according to the Laws of Intestacy.  If you die intestate in New York State, your wife would only be entitled to the first fifty thousand dollars ( more »

Advance Directives

Q:  I don’t have a lot of money to leave behind to my family, do I still need estate planning? A:  Regardless of the dollar amount of assets you have or you plan to leave behind, it is important to speak with an estate planning attorney.  The conversation with the estate planning attorney should be to discuss documents you can sign that not only refer to what happens when after your death, but also refer to situations that may arise while you are still alive.  Spe more »

Estate Closure and Fiduciary Liability

Q: I am the Executor of my mother’s estate. I have collected the assets, paid her expenses, and am ready to close the estate. Can you advise me on how to proceed? A: Once you have collected the assets of the estate, paid the expenses, debts, and taxes you are ready to begin the closure of the estate. In order to close the estate you should prepare what is known as an accounting. This accounting is meant to show the beneficiaries what you collected, what you paid, and what is left to b more »

In Terrorem Clauses

In Terrorem is a term derived from Latin which translates to “in fear”.  An In Terrorem provision in a Decedent’s Last Will and Testament “threatens” that if a beneficiary challenges the Will then the challenging beneficiary will be disinherited (or given a specified dollar amount) instead of inheriting the full gift provided for in the Will.  An in terrorem clause is intended to discourage beneficiaries from contesting the Will after the testator’ more »

Mortgages and Irrevocable Trusts

Question: Am I able to obtain a mortgage on my real property if it is owned by an irrevocable Medicaid trust? Can a bank demand that an existing mortgage be due in full if I transfer my property to an irrevocable Medicaid trust? Answer: It depends on what kind of financing you are looking to obtain. Unfortunately, most banks will not offer traditional mortgages or home equity lines of credit against real property owned by an irrevocable trust. Luckily, in New York State an irrevocable Medic more »

Gifting and Medicaid

Question: My mother is widowed and is beginning to decline in health.  I have four siblings.  We know that in order to qualify for Medicaid, Mom cannot have more than a certain amount of assets in her name.  She rents a house, but has approximately $150,000.00 in various CD accounts.  A friend of hers told her that she can give up to $14,000.00 to each of us annually without penalty and still qualify for Medicaid if she needs it in the future, she would like to give these more »

Aging in Place

Question: My Mom is starting to require some assistance with her daily activities and I promised her that we would never send her to a Nursing Home, what are my options for care in the home? Answer: For most of us, if a time ever came that we needed assistance, the preferred option would be to remain at home and receive whatever care services we needed in our familiar setting surrounded by family.  For many, the Community Based Long Term Care Program, commonly referred to as Community more »

Protecting Assets in the Context of a Guardianship Proceeding

While the best elder law and estate plan is to have a valid health care proxy naming agents and a valid durable power of attorney naming an agent to make financial decisions, not everyone has done the proper planning.  It is not uncommon for an elderly person to fall ill, be hospitalized and then need nursing home care with no time to plan.  If there are no advance directives in place, a guardianship proceeding under Article 81 of the Mental Hygiene Law may be required.  In an more »

Aid and Attendance Pension

Question: Does the Veterans Administration provide any benefits to receive assistance at home? Answer: There is a benefit referred to as the improved Pension through the Department of Veteran’s Affairs (VA), more commonly referred to as Aid and Attendance Pension.  Assuming you meet the eligibility requirements, the VA permits payments to care givers (including family members, but not spouses) for care provided to the veteran and/or the spouse.  There are three main requirem more »

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