New York Elder Law Attorney Blog

October 15, 2017

What Types of Cases to New York Surrogate’s Courts Handle?

New York’s Surrogate’s Courts handle a wide variety of civil issues, mostly related to trusts and estates, guardianship, and adoption. The Surrogate’s Court is established in every county in New York, helping to provide residents with timely and effective due process for legal issues under the court’s jurisdiction. The following is a brief overview of the types of cases the Surrogate’s Court handle and what individuals can expect from the proceedings.

Probate – Probate proceedings deal with the process validating the last will and testament of a deceased person, if the individual created such a document. A last will and testament are the final directions given by the deceased to allocate his or her to estate to heirs and other beneficiaries.

It will be the responsibility of the person named as the executor of the estate to file the will with the probate office of the Surrogate’s Court, collect all the necessary documents, pay off creditors, and finally divide assets of the estate among beneficiaries per the wishes of the deceased.

October 11, 2017

Inter Vivos Trusts – The Benefits of Creating a Living Trust

by Ettinger Law Firm

In New York state, individuals can place their estate into a trust to distribute to beneficiaries and thereby avoid lengthy and costly probate proceedings in a Surrogate’s Court. While a traditional last will and testament may be better for some individuals, for many it may be best to create some form of a trust, particularly a living trust, to ensure loved ones receive their portions as quickly as possible and with as little tax liability.

It is also worth noting that even after creating living or inter vivos trusts, you will still need a last will and testament to ensure any of your final wishes are carried out and assets left out of the trust are dealt with as you see fit. Without a will to cover newly acquired assets or those not named in the trust, the remainder of your estate could considered in intestacy and pass on to your heirs in succession under New York law.

While creating a trust is a fairly straightforward affair, it may still be necessary to consult with financial advisors or an estate planning attorney to ensure proper transfer of your assets. The first step will be to create the trust and there are many resources from the New York State Bar and Surrogate’s Court system online you can go to for forms and information how to file.

October 7, 2017

Preserve the Original Copy of Your Will to Avoid Probate Issues

by Ettinger Law Firm

Your last will and testament is an incredibly important legal document needed to ensure New York probate courts carry out your final wishes and ensure your heirs receive the portion of your estate so delegated. After going through all of the careful considerations of consulting with family, speaking to an estate attorney, and drafting a will, testators need to take care in storing the original copy of the document to ensure the estate passes as swiftly as possible through probate courts and make the process easy on the executor.

Testators have numerous options to keep the original executed copy of their will safe. Often times, the last will and testament remains in the office of the probate attorney who helped craft the document. Other times, testators may choose to keep the document in a safety deposit box at a bank or another custodian of records. In any case, the executor of the estate needs to know the will’s location to pass the estate through probate.

Under New York probate laws, if the original copy of the last will and testament cannot be found, the court presumes the testator intended to destroy and revoke the document. Proving anything to the contrary can be extremely difficult and time consuming and the court may order an executor take custody of the will in keeping the chain of succession in New York state law. Furthermore, the Surrogate Court hearing the case will most likely not enter a copy of the will.

October 3, 2017

Adding a “Life Estate” to Your Estate Plan

by Ettinger Law Firm

When planning for our later years, forward thinking individuals often wonder what is the best way to spend down their assets to qualify for Medicaid but still live a comfortable and dignified life until services like nursing care are absolutely needed. With the value of real estate skyrocketing over recent decades, homes that were just a few thousands dollars may put homeowners in a financially difficult spot now that the property is worth many times the initial investment.

Under federal Medicaid laws, individuals may only have a net worth below a certain level, including things like homes and automobiles in some cases. Often times, seniors need to “spend down” their assets to qualify for the invaluable services Medicaid provides and many individuals may attempt to give away homes or spend down savings accounts to qualify. However, Medicaid has a “look back” period that can last a few months, meaning seniors may be penalized for recently giving away assets or spending bank accounts before applying for coverage.

One solution which may be effective for some is to create a “life estate” with their home. By doing so, seniors can own, live in, and exercise full control over their home and simply pass it on to a beneficiary like a child once they pass. With the help of an estate planning attorney, individuals can create the life estate with the deed to their property and create a “remainder interest” for the person who will receive the property, known as the remainderman, upon the deceased’s passing.

September 30, 2017

Warning Signs of Financial Exploitation

by Ettinger Law Firm

Most folks never believe they or their elders could be the victim of financial exploitation by a family member or a caretaker but the truth is that every year, millions of well meaning or vulnerable individuals find themselves taken advantage of. Even independent and acute elders can find themselves fleeced by scammers over the phone or a seemingly trusted individual charged with ensuring their wellbeing.

However, with some careful planning and vigilance we can help safeguard ourselves and our loved ones from the malicious intentions of someone pretending to be someone they are not. Often times, warning signs pop up that can alert us to foul play and give us the opportunity to intervene before unscrupulous individuals unjustly enrich themselves.

Many situations of financial exploitation against elders involve family members such as adult children or another close person engaged in life care. Sometimes, these caretakers feel entitled to large portions of an individual’s wealth for rendering the care and attention needed for the elder to live a comfortable and dignified life. While there is nothing wrong with someone rewarding a child or a close individual for watching over them when needed most, some individuals may take matters into their own hands to see their inclinations through.

September 26, 2017

Creating Savings Accounts for Disabled Family Members

by Ettinger Law Firm

Individuals with disabled family members understand the many obstacles life can put in front of them and their family, especially when it comes to finances. For many, having a permanent disability can mean being unable to provide for oneself and that can mean relying on benefits from social welfare programs to get by. However, many of these programs have strict income thresholds that can exclude potential beneficiaries if they earn too much money or have too much capital.

Fortunately, New York is one of several states that allow disabled persons and their families to create special savings accounts to help maintain the person’s health, independence, and quality of life. The New York Achieving a Better Life Experience (NY ABLE) helps supplement but not supplant benefits provided through Medicaid, SSI, SSDI, private insurance and other sources and is exempt from om tax on its earnings and distributions, provided the funds are used to pay for qualified disability expenses.

The laws creating the ABLE statute was signed into law by Gov. Andrew Cuomo in December 2015 and is federally authorized by the federal Stephen Beck, Jr. Achieving a Better Life Experience (ABLE) Act enacted on December 19, 2014, as Section 529A of the Internal Revenue Code. The NY ABLE program is administered by Office of the State Comptroller in consultation with specific State agencies and individuals appointed by legislative leaders, as specified in the NY ABLE statute.

September 22, 2017

New York’s Medical Orders for Life-Sustaining Treatment (MOLST) Form

by Ettinger Law Firm

In New York, patients have the right to make many decisions about their end of life care and even appoint a representative to do so in their interests if circumstances leave them unable to make such decisions for themselves. Using what is known as a Medical Orders for Life-Sustaining Treatment (MOLST) form, patients can create a doctor’s order that informs physicians and emergency care givers whether to administer treatment like CPR or place the individual on ventilator or other life-saving equipments.

MOLST forms can be used in combination with a do not resuscitate (DNR) order to help give patients the most control over how their health care is delivered in an emergency situation or at the end of life where tough decisions must be made. In order for the MOLST form to be valid, the document must be signed by your physician and yourself, otherwise doctors may continue to deliver treatment during and emergency. The form will become a part of your medical file and will transfer over to whatever facility you may be treated at.

The main difference between a MOLST and DNR order is the former covers a broader range of care doctors may deliver, including intubation, administering antibiotics, and interesting feeding tubes, with DNR orders only cover administering CPR. Often times, patients using a MOLST face a life-threatening medical condition or lives in a long term care facility like a nursing home or hospice.

September 16, 2017

What are Advance Directives for Healthcare?

by Ettinger Law Firm

Advance directives for health care are legal documents that ensure an individual’s wishes are carried out if he or she cannot make decision. New York State recognizes three types of advance directives including a health care proxy, living wills, and do not resuscitate orders (DNR). Even younger and more healthy individuals should consider putting these types of directives into place in case of a serious accident or medical event.

Health Care Proxy in New York

A health care proxy allows individuals to name a health care agent who will make decisions if that person cannot make those decisions for himself or herself. Under state law, these types of decisions can take effect after two doctors examine the individual and determine that person cannot make decisions for his or her health. New York state offers standard forms for a health care proxy.

September 12, 2017

How Much Does an Estate to Go Through Probate?

by Ettinger Law Firm

Planning your estate and having a last will and testament is important to ensuring your final wishes are carried out and your heirs receive everything you intend to pass on to them. Whether you are the testator or executor, there are many duties you will need to perform to make sure an estate passes as quickly as possible through probate court, including calculating the costs associated.

First and foremost, New York probate courts handling estates have a variable schedule of filing fees which depend on the size of the estate. Section 2402(7) of New York’s Surrogate’s Courts Procedure Act (SCPA) are as follows:

Value of Estate or Subject Matter Fee	Fee Rate
Less than $ 10,000	$45.00
$10,000 but under $20,000	$75.00
$20,000 but under $50,000	$215.00
$50,000 but under $100,000	$280.00
$100,000 but under $250,000	$420.00
$250,000 but under $500,000	$625.00
$500,000 and over	$1,250.00

Section 2402(8)(a) of the SCPA also proscribes a fixed fee for filing a petition to commence certain proceedings. These types of fees can range anywhere from $10 to $75, depending on the type of motion filed. Such petitions can include common probate proceedings such as filing wills and suspending a fiduciary.

What are the fees for executors in New York?

Under section 2307 of the SCPA, executor fees are based on the value of the estate. These fees can be between 2 and 5% of the total amount of estate money the executor receives and pays out. Executor’s fees in New York are as follows:

All sums of money not exceeding $100,000 at the rate of 5 percent
Any additional sums not exceeding $200,000 at the rate of 4 percent
Any additional sums not exceeding $700,000 at the rate of 3 percent
Any additional sums not exceeding $4,000,000 at the rate of 2.5 percent

All sums above $5,000,000 at the rate of 2 percent

These amounts come out of the value of the estate and in cases where multiple executors handle an estate, the split is commiserate on the amount of work performed by each individual.

Attorney costs for probate of a will

When going through probate, it is strongly suggested the executor seek help from an experienced and dedicated New York probate and estate lawyer. The fees associated with a probate attorney depend on size of the estate, work put in by the executor, and the complexity of the case.

September 9, 2017

What is a Qualified Personal Residence Trust?

by Ettinger Law Firm

When planning their estate, many individuals consider setting up some form of trust to avoid family squabbles over assets, particularly the home. To achieve the goal of a smooth transition of assets and maintaining family harmony, most folks choose to set up some form of trust to avoid probate and reduce the amount of time and money executors need to spend in court.

Although many may not realize the significant wealth they have accumulated over the course of their life, the reality can quickly set it when it comes time to pay estate or gift taxes when passing on a home to heirs. After decades of skyrocketing real estate prices, home that were once purchased for several thousand dollars may now be worth millions, depending on the condition of the home and location.

One way for highly wealthy people to pass on their home with as little tax liability to heirs as possible is the creation of a qualified personal residence trust. Just like any type of estate plan, there are benefits and drawbacks to consider and it is strongly advised individuals consult with an experienced estate planning attorney to draw up trusts and wills.