September 16, 2019










5 Trending Topics in Elder Law to Know Today

More baby boomers are hitting 65 each day and will continue to do so into 2030. Therefore, the issues surrounding elder law are becoming more mainstream, especially as more enter or head toward retirement and start looking at the facts.

From Medicare to long-term care coverage to Social Security, there is a lot to know about elder law. Naturally, it is best to speak with an attorney any time you have a question or concern in these areas. This is because an elder law lawyer focuses specifically in this area, is apprised of the latest legislature changes, and can help prepare you for the road ahead.

5 Important, Trending Topics That Plainview Elder Law Attorneys Want You to Know

The more prepared you are for the later years, the easier it will be when it comes to securing benefits, finding long-term care, and protecting your loved ones. Here are a few trending topics attorneys are seeing – and that you should be aware of, too.

Topic 1: Alzheimer’s Disease and Estate Planning

Dementia, including Alzheimer’s Disease, is not just a loss of memory. As it progresses, most patients with dementia lose their ability to function from day-to-day. They can forget to take medications, not remember their name, or confuse the current time with one year ago.

In 2018, an estimated 5.7 million Americans were living with Alzheimer’s, according to the Alzheimer’s Association. Every 65 seconds in the US, someone develops the disease whether it is diagnosed or not. While it typically affects people later in life, there is a type known as early on-set that can strike much earlier without warning.

Once the disease is diagnosed, estate planning becomes incredibly complicated. No longer is the individual considered legally capacitated, which means they do not have the authority to make decisions themselves.

Elder law attorneys understand the complications that arise when a person is diagnosed or suffering from severe dementia but needs to create a plan to protect themselves and their loved ones – including assigning a guardian to oversee their best interests.

Topic 2: Medicaid and Nursing Home Costs

If you have limited assets and no or minimal income but you need nursing home care, you may wonder how you can pay for it. Medicaid might help in this situation, but you need to plan it properly and apply correctly to avoid unnecessary delays.

Nursing homes fall under long-term care, and Medicare rules are different regarding long-term care over short-term care needs.

It is not just qualifying for Medicare that poses an issue. Other issues come into play like state regulations and whether the nursing home you have selected even accepts Medicare or Medicaid benefits.

An attorney helps with Medicaid planning, but can also assist with long-term care planning long before you need nursing home services so that you do not scramble last minute to cover for your nursing home needs.

Topic 3: Veteran’s Benefits

Those who served in the military are eligible for benefits through Veterans’ Affairs. Veterans receive monthly compensation checks, but may also receive VA health care and nursing care through the Veteran’s pension.

Furthermore, the veteran’s pension may pass to the spouse in eligible situations after the death of the person who qualified for the benefits initially.

However, there are asset limitations to these benefits. And if you are a veteran or spouse of a veteran, it is important you understand the rules for VA benefits, including health services. Furthermore, having a long-term care plan in place ensures that you allocate assets appropriately to avoid disqualifying for veterans and other federal benefits available.

Topic 4: Social Security

Social security is available between the age of 62 and full retirement, but most people will not start taking the benefit until they have retired. Some might even delay until they reach 70 – depending on their financial situation.

While you might qualify for social security, you cannot rely on it solely to support you in retirement. Regardless of your plans with social security, you need to plan for Medicare and plan at age 65 to avoid an increased premium later.

Furthermore, if you work closely with an elder law attorney, you can create a long-term plan that focuses on your social security options, prepares your assets for Medicare, and still provides for your family.

Topic 5: Estate Plans

One of the most important services offered by an elder law attorney is estate plans. These plans dictate where your assets go upon your death, and they provide for your loved ones. If you are nearing retirement but have not yet created an estate plan, now is the time to start.

Estate plans are complex and more than just a binder of paperwork. A comprehensive, well-drafted estate plan focuses on:

  • Last Will and Testament
  • Power of Attorney
  • Living Trust
  • Medical Directives
  • Designations for Beneficiaries

Together, these components not only identify beneficiaries and what they will receive from your estate, but it also outlines what medical care you want to receive if you become incapacitated. Additionally, it appoints a person to manage the estate and your financial affairs when you cannot and looks out for your best interests.

With a trust, you might save your family the hassles of probate court as well.

Meet with an Estate Planning Attorney Today

Whether you are worried about qualifying for Medicare or you want to get started on your estate plan, speak with an attorney that has experience in elder law.

The Law Office of Andrew M. Lamkin, P.C., has extensive knowledge of the trending topics in elder law and hot issues on the horizon. We can create an estate plan that is futureproof and considers the long-term care you need, including when you cannot make decisions yourself.

Meet with attorney Lamkin today for a free, no-obligation consultation by calling 516-605-0625. You can also request more information about elder law online.

Can You Stop Probate Once It Starts?

The probate process typically starts after your loved one passes away.

The purpose is to administer the estate of that deceased person, and it gives an opportunity for heirs to challenge the will if they feel there was tampering. Most probates go through without issue.

However, there could come a time when legal heirs want to challenge a will or stop the process of probate entirely.

Stopping probate requires an attorney to file a probate caveat.

Caveats cannot be filed haphazardly. And once probate starts, there is no guarantee your case would qualify for caveats. Understanding how this legal process works, when it applies, and who can file it is your first step toward seeing if it is an option for you.

Naturally, you should consult with an estate attorney before assuming a caveat is viable.

The Basics of Caveat: When Can You Stop Probate in Plainview, NY?

Probate caveats are legal maneuvers that give notice to the probate court to suspend the process. Caveats must file before probate begins as a pre-probate legal action. Caveats prevent the estate’s executor from administering the estate or moving forward with the process.

Also, a caveat tells the court about discrepancies found in the estate plan and allows for any contests to move forward. Once the caveat files, the probate process is suspended until the reason for the caveat is resolved.

Who Can File a Caveat?

Anyone with interest in the estate, not just the executor, can file the notice. However, it is best to hire an attorney to file on your behalf.

Also, creditors may file caveats.

Anyone affected by probate can file a caveat to stop the process. The party that files a probate caveat is named the caveator. Caveats are used for specific situations, including:

  • The caveator suspects the will was forged and not approved or signed by the deceased.
  • The caveator suspects that the deceased made the will under duress.
  • The caveator alleges there was no will and wants to prevent the executor from administering the property of that will intestate.
  • The caveator suspects the deceased was mentally incapacitated; therefore, they could not legally sign their will.
  • The caveator is in the middle of a dispute about including an heir in the will or excluding an heir from the will.

To File the Caveat or Not: When Is a Caveat Necessary?

Caveats do not always work as an advantage to the party filing them. Therefore, you should only submit a caveat after consulting with an attorney and deciding it is the best solution for your situation.

The benefit of a caveat is that a temporary, neutral party is then named by the court to serve as an administrator during this challenge. This means, if you wanted the original executor removed, you do not have to worry about them continuing to manage the estate while the caveat finalizes.

The neutral party named prevents the current executor from accessing assets, but that neutral party comes at an expense to the estate. Therefore, the process of completing a caveat can be expensive.

Also, caveat results are appealable, which means that the result you get might go for further hearings and eventually cost your estate more.

How Can an Executor Fight a Caveat?

Sometimes, the executor must remove the caveat to execute the will effectively. If you are an administrator of a will and a caveat has been filed, you should consult with an attorney.

Caveats are the first step to a will contest, which means that a contest hearing is likely to come next. Furthermore, a caveat prevents you from doing what is necessary to complete the estate and fulfill your obligations as an executor.

Do You Need an Attorney for a Caveat?

Whether you are filing the caveat or you wish to remove a caveat, an estate attorney is almost always necessary. Rarely is an administrator or the party filing a caveat familiar with estate laws, including the grounds for a caveat and how to file the petition itself.

Not only do you need to review the will and object to the caveat, but you need to understand the law so that you can regain control of the estate and continue your obligations as the executor. An experienced attorney knows the caveat process and can stop unnecessary will contests from affecting the estate for months.

Will Contests Can Still Happen after Probate

Even if you successfully remove the caveat and complete probate, an heir can contest a will after probate. Note that there are time limits on how long one has to challenge after probate starts. And once the estate is administered, the chances of succeeding at a will contest are quite low.

Finding the Right Lawyer for the Job

If you are an administrator of an estate dealing with a caveat or you are an heir that wishes to stop probate, you must consult with an estate attorney.

You want an attorney that has experience in estate litigation and one that can quickly focus on the matter at hand to prevent any unnecessary delays. The Law Office of Andrew M. Lamkin, P.C., can help with your case. We look for the fastest, most cost-efficient way to resolve your estate issues – including caveats and contests.

To explore your options or to discuss your issues with a caveat, contact our law firm for a free, no-obligation case evaluation.

Call to schedule your consultation appointment now at 516-605-0625 or request more information online.

3 Big Issues an Elder Law Attorney Can Help Resolve

An elder law attorney serves as your advocate and also your family’s guide.

This area of the law specializes in the unique range of financial and legal matters older adults face, including everything from health care planning to long-term care to guardianship and estate planning.

An elder law attorney is a specialist because they focus specifically on the issues afflicting those in retirement or venturing close to it.

When you go to an elder law attorney, they have a vast array of services they provide you. But there are three critical legal issues they can resolve.

Most importantly, elder law attorneys are better equipped to handle issues like Medicare or Medicaid planning and the sensitive needs of elderly individuals and their families. They are well versed in the latest laws and legislature. They can help you, not only today, but they can also anticipate your future needs as well.

What 3 Important Legal Issues a Plainview, NY, Elder Law Attorney Can Help You With

The services an elder law attorney can provide are extensive, but there are three critical issues that they can help resolve before they turn into more significant problems.

Whether you have an elder attorney already or you are considering hiring one, here are three critical issues that you want to make sure you get resolved now rather than later.

Long-Term Care Planning

Long-term care planning involves considering your care requirements at a later date. This includes healthcare teams, nursing homes, and assisted living options. You might also want to prepare for in-home nursing care.

Most families are ill-prepared to pay for such services. And even with insurance coverage, you might find that you do not have the benefits available to cover care for several years.

You have options to pay for your long-term care, and an attorney will help you unlock those options. Elder law attorneys counsel their clients regarding eligibility and look for programs like Veterans’ Affairs that might help pay for these services. Even if you do not qualify for VA benefits, you may have Medicaid or Medicare, which pays for long-term care.

Your attorney not only helps you prepare for applying for these benefits, but they help with asset management so that you will qualify financially.

Creating an Advance Directive (Living Will)

Elder law attorneys create estate plans, but they also can create vital documents like a living will. A living will, also known as an advanced directive, is your advocate designation if you become ill or incapacitated and cannot make medical decisions yourself.

Your living will discusses all your medical wishes. It is a legal, written document that outlines how you wish to receive emergency care. You can discuss topics like resuscitation, life-saving measures, surgeries, and any end-of-life treatments you want to receive or do not want to receive.

You should discuss these options with your primary care physician and your family. When you select a party as your healthcare advocate, it is their job to carry out all wishes listed in your living will.

One common use of an advanced directive is to determine the use of life-saving measures like being placed on a ventilator.

The Importance of Thinking Ahead – and Using Specifics

One error made with an advanced directive is that most people cannot address their mortality. They do not want to think ahead about what might happen or what the future holds. Furthermore, they may forget situations where medical decisions might be required.

It is vital that you work with your attorney to be as specific as you can in your document. While you cannot account for every possible situation, the more information you have in that document, the easier it will be for your healthcare advocate to comply with your wishes.

Durable Financial Power of Attorney

Another common issue that your attorney helps with is the durable financial power of attorney. This document provides access to one individual to manage your financial needs in the event you are incapacitated and cannot do so yourself.

The document grants power to one person, which might be a family member. They have the legal authority to access your accounts, pay bills on your behalf, sell or acquire assets, and even pay taxes.

You are in complete control of the authority they have over your financial decisions. In your durable power of attorney, you can decide the following tasks they may or may not do:

  • Pay bills
  • Pay and file taxes
  • Pay for medical costs
  • Manage real estate
  • Access your bank accounts
  • Invest
  • Collect retirement benefits for your use
  • Transfer or sell assets
  • Hire an attorney for your estate
  • Operate your business
  • Buy insurance

Realize that an agent does not have unlimited power. Instead, you dictate the power they have in your document.

Other Problems an Elder Law Attorney Can Resolve

While these three are the primary problems elder law attorneys are hired to handle, they have much more to their services than that. An attorney can also help you with:

  • Counseling you on insurance and avoiding gaps in coverage
  • Assessing your needs for legal capacity counseling
  • Protecting you or representing you in elder abuse
  • Advising you on housing options after retirement
  • Discussing the best route for your retirement
  • Helping with guardians, conservators, and trustees to handle your estate
  • Creating an estate plan
  • Helping plan for disabilities

Explore the Options Available – Meet with an Elder Law Attorney in Your Area Today

If you are ready to explore your options and see what an attorney can do for you, schedule a consultation with an elder law attorney.

Get started today by scheduling a free case evaluation with the Law Office of Andrew M. Lamkin, P.C., by calling 516-605-0625 or request more information online.

Making an Estate Plan? Do Not Forget Your Business Succession Plan, Too

If you have a family business or started a company that you would like to keep in the family after you pass away, you need to create a succession plan. Even if you wish to sell that business, speaking with an estate planning attorney about your business’s future is critical – and you can incorporate your business succession plan into your estate plan.

Why Plainview Business Owners Need an Estate Plan and a Succession Plan

You might assume that you have an estate plan; therefore, you do not need a succession plan. What you may not realize is that all assets, including private businesses, do go through probate – unless you have named beneficiaries through a trust. Certain trusts can allow your assets to pass outside of the taxable estate, including your business.

To take advantage of those trusts, you need an attorney to help set up a business succession plan alongside your traditional estate plan. This way you protect your business, investment, and your loved ones at the same time.

The Consequences of Not Planning – and Not Including Both Options

Without considering a complete plan that incorporates personal and professional assets, your family may suffer from severe financial and emotional consequences.

The Consequences of No Business Succession Plan

  • No Clear Direction – Who will lead the business? Who takes over and manages? Without a succession plan in place, there is no clear direction for how the company will continue to operate (or if it should operate) after your death.
  • Creates a Fear of Uncertainty – A business relies on its employees. But when leadership is mismanaged, power struggles occur over who should run the business, and the company is left picking up the pieces. Employees may leave for a more transparent future than stay with a company that is full of uncertainty. After all, employees want personal job security.
  • Family Disagreements – Family members left to make decisions for the business may go through disagreements, and decisions like these can tear families apart.
  • Loss of Value – When the key person running the company dies, surviving shareholders may go to sell the business and realize that there is a loss in value because of that person’s death.

The Consequences of No Estate Plan

  • Tax Liability – Without an estate plan drawing a line between professional and personal income and assets, a family may experience estate tax liability that they had not planned on encountering.
  • Probate Court – Family members will have to endure probate court fees and time lost for private assets as well as the business.
  • Delayed Distribution – Without an estate plan, the estate waits in line for its turn in probate, which means there is a delay in the distribution of assets. It may take months to years for the estate to resolve, depending on the complexity of that estate.
  • Litigation Costs – Family members may have unexpected legal costs for disagreements amongst each other.

The Tax Considerations for a Budding Business

Between the time you make an estate plan and the time you pass away, your business may see significant growth. That means the amount of money your business generates can increase the value of your estate – and with that value comes the issue of estate taxes.

How Does the Business Succession Plan Differ from an Estate Plan?

Your business succession plan focuses strictly on the business and assets associated with that business.

At a bare minimum, your succession plan needs to focus on the transfer of management of the business or the ownership of the business entirely.

The procession of management succession typically involves:

  • Developing, training, and supporting successors
  • Delegating responsibility and authorities to successors
  • Bringing in outside advisors to help in the process
  • Maximizing employee retention by creating a smooth transition and proper planning

The process of ownership succession might involve:

  • A plan that coordinates the person who will own the business after death and who will manage the business (if they are two separate people).
  • A plan that considers the best interest of both sides.
  • A plan that involves moving the business over before the current owner’s death – giving that past owner a chance to meet with, cultivate, and guide successors.

Can You Make a Business Succession Plan without an Attorney?

A business succession plan protects your business, loved ones, and any employees you might have. While you know this, you should also know the importance of hiring a professional to draft that protection.

Templates online rarely address the complexity of each business, and every company is unique in what they need for succession to work. Succession plans account for various circumstances, including how partners will handle the business, what happens if legal agreements are violated, and how the business moves forward if you were to pass away unexpectedly.

These legal hurdles are serious. Without the right plan in place, your business could fail.

An attorney addresses any unique legal concerns your business might have, and an attorney will address all state and federal issues that could arise.

Business planning requires attention to detail and a vast knowledge of employment, business, and estate laws. For this reason alone, a business owner should enlist the help of an attorney in their succession plan. An attorney will consult with tax experts to assist them in drafting a plan. Also, if a legal dispute does arise about your business later, your estate attorney will be able to defend your plan and your estate in court after your passing.

Consult with a Local Attorney that Helps Your Business Pass Safely

Attorney Andrew M. Lamkin, P.C., can help with not only your estate plan but your succession plan too. By going over your business’s unique needs along with your personal concerns for your loved ones, I will help you create a succession plan combined with a substantial estate plan that protects your family for years after your death.

To get started, schedule a consultation with my office at 516-605-0625. You can also schedule your free case evaluation appointment online.

What Is a Certified Elder Law Attorney – and What Can They Do for Me?

Description: An elder law attorney can help you long before retirement with everything from long-term care to Medicare and even the creation of an estate plan.

You know that you need an elder law attorney. But as you ponder over your options, you might have noticed some attorneys have called themselves “certified,” while others do not. The certification they have received may come from organizations like AARP’s Legal Services Network while others are members of the National Academy of Elder Law Attorneys (NAELA). Some attorneys go further and receive an official certification through an ABA-approved program.

While certification means they are proficient, that does not mean they are the right attorney for you. Instead, you should consider the pros and cons of certification, memberships or affiliations the attorney has, and their overall experience before solely choosing based on certification status.

Does an Attorney Require Certification in Plainview?

No, an attorney offering estate planning or elder law services in Plainview, NY, does not have to be certified in elder law. They do, however, require registration with the state bar association.

You can verify that your attorney is a member of the New York State Bar Association, and you can contact the Bar to see if there are any complaints or pending actions against an attorney you are considering.

What Does a Certification Mean?

Some attorneys will receive a certification in their legal specialty. This may require continuing education, testing, peer reviews, and passing exams to obtain that certification. Certification is an additional peace of mind. And while it does prove an attorney is capable in the area of elder law, you still want to consider the other items that go into an attorney’s qualifications.

Memberships Matter Too

Most attorneys will be members of organizations specific to their specialty. If an attorney practices elder law, they should be a member of the National Academy of Elder Law Attorneys (NAELA).

NAELA is a professional organization that provides continuing education to its members, peer networking, and helps local clients more easily find qualified attorneys.

To be part of the Academy, attorneys must be practicing members of the bar and offer legal services that address the needs of the elderly. They must represent a high code of ethics, exhibit knowledge in their field, and show commitment to their clients as well as remain active in the Academy.

These memberships are paid, but that payment helps fund continuing education and advocacy programs offered by the organization. Attorneys who are members of NAELA also have access to comprehensive libraries, knowledge databases, and other resources.

Another membership you should look for from an attorney is in the AARP Legal Services Network. This means that the attorney you are considering offers you a free consultation if you are an AARP member. Because elder law attorneys deal with local seniors, you would expect one to be part of this network and honor the discounted consultation fee. If an attorney is not a member of the local legal services network, you lose out on the free consultation opportunity.

Do Not Forget about Local Advocacy Groups

You are working with a local attorney, so you should expect to see a local advocacy group or organization affiliation. In Nassau County, an attorney practicing in elder law should be a member of SUN (Senior Umbrella Network), Nassau Chapter.

This group offers local professionals networking and continuing education opportunities specific to elder law and planning.

Looking at Core Services

Once you have looked over certifications, memberships, and affiliations, the next step is the services offered by the prospective attorney.

Remember, certifications are only a minor piece of the puzzle. If your prospective attorney is a full-service firm, how much time can they dedicate to elder law continuing education? How often do they address elder law plans, Medicare planning, and other long-term care planning needs?

An attorney may offer elder law services, but your goal should be to find one that specifically works in the estate and elder law field. This attorney will be up-to-date on the latest changes, including proposed changes in legislature. They work consistently in the area of elder law; therefore, they are well-versed in their field, know what local probate court judges expect, and how Medicare representatives review applications.

An attorney working exclusively in this field will also help plan for the unexpected – like the need for guardianship, creating advanced directives, or taking care of loved ones later in life.

Here are just some of the services an elder law attorney can help you with:

  • Living Will
  • Healthcare Proxy and Advanced Directives
  • Durable Power of Attorney
  • Medicaid Planning
  • Estate Planning and Estate Tax Planning
  • Asset Protection
  • Estate Administration and Probate Litigation

Do You Need an Attorney for Long-Term Planning?

If you are ready to create your estate plan, need to adjust one you already have, or you need the services of an elder law attorney in your area, contact attorney Andrew M. Lamkin, P.C. He is a member of the AARP Legal Services Network through Allstate and part of the NAELA group of professionals.

You can schedule your free, no-obligation consultation with the Law Office of Andrew M. Lamkin, P.C., now at 516-605-0625 or request more information online.

What Is Ancillary Probate?

If you are like most who are starting out with estate planning, you have heard of probate court – and you know that you want to do what you can to avoid it. What you might not have heard about is an ancillary probate. Ancillary probate is a secondary probate for your estate when you own property in another state.

Loved ones must endure the costs and hassles of a formal probate court. But adding on the hassles of ancillary probate can be even more taxing.

Two probates happen when you have out-of-state real estate because real estate is governed in the state where it is located – regardless of where you reside.

When Would a Plainview Resident Have Ancillary Probate?

Second probate court proceedings happen when you own real estate or tangible property outside of New York. For example, you have a New York primary residence but also a Florida condo you use in the winter.

Realize that ancillary probate is not just a vacation home or secondary residence. It can also involve tangible property. For example, you own a plot of land without any buildings on it in Montana. Another reason for ancillary will be if you own mineral rights out of state.

Your New York probate court would handle all property in New York, but any property outside of New York would require ancillary probate. When you own multiple properties or tangible properties out of state, each state would have probate proceedings for those pieces of real estate.

The Process for Ancillary Probate

First, the domiciliary probate process initiates. This occurs when the decedent’s state recognizes the will, and the executor starts the probate proceeding.

In some cases, the executor may also initiate the ancillary probate.

Any challenges to the estate plan are done in the domiciliary state’s probate court. Once the court admits the will, the ancillary states follow.

The process varies by state, but the process of ancillary probate is shorter than formal probate. Some states even offer streamlined ancillary probate processes, including allowances for foreign executors (an executor residing in another state). By doing so, the foreign executor can take control of the property and transfer, sell, or manage it by the instructions of the will.

The Negative Impact of Ancillary Probate

It is better to avoid ancillary probate because, like formal probate processes, there are consequences to going through the process.

One of the most significant consequences is the cost. It is costly enough to administer an estate in one state, but two states with two probates is expensive. Beneficiaries will not only endure the time of both courts, but also endure multiple court fees, attorney’s fees, and accounting costs.

If the deceased passes intestate (meaning they have no valid will), the intestacy laws of that state determine how the property will be handled. Every state is different with how they handle property if there is no will. Rightful heirs of the intestate estate may find that the property is dealt with differently in the other state – and not always favorable to them.

How to Avoid Ancillary Probate Entirely

Probate is not necessary for real estate in your domicile state let alone property out of state. With a trust, you can avoid probate entirely. With a living trust, your property is passed directly to your beneficiaries.

To do this, you would put the title of your out-of-state property and any in-state property into the trust. By doing so, the trust now owns the property (not you). Upon your death, the trustee would then distribute assets from the trust by the trust rules.

Using a living trust is the most common method for avoiding probate in both states. If you don’t want to use a living trust, you may also be able to:

  • Own the property with another person: Owning the property with another person opens the door to joint tenancy, which means the property would pass to the other owner upon death.
  • Transfer-on-Death deed: A transfer on death deed (TOD) transfers real estate upon death. You must record it and file it with the local records office for it to be valid. Note that not all states allow a TOD. New York, for example, does not allow TODs. Therefore, if your ancillary property is in New York, you would not be able to use this method for avoiding ancillary probate.

All of these options might work for your estate, but it is best that you consult with an attorney. Depending on your estate’s size, assets, and beneficiaries, some options for avoiding ancillary probate may not work for you.

Consult with an Attorney Regarding Your Ancillary Property and Possible Probate

If you have an out-of-state property you use as a vacation home, rental property, or you own mineral rights in another state, protect these assets by meeting with an attorney and drafting an estate plan that addresses the unique issues these properties create.

You can still protect your loved ones and avoid ancillary probate. To explore your options, speak with an attorney by calling the Law Offices of Andrew M. Lamkin, P.C.

During your free consultation, we can go over each option, discuss the pros and cons of your estate going through ancillary probate, and draft an estate plan that protects your long-term care needs and provides for your loved ones when the time comes.

Schedule your meeting today by calling 516-605-0625 or request more information online.

Estate Planning with an Out-of-State Vacation Home

It is not uncommon to find a client that has property in multiple states. Usually, it involves an individual or couple that has their primary home here in New York but a vacation home elsewhere else in the country.

Whether you have a vacation home in Florida for the warm summers or a snow-ready cottage in the mountains of Utah, it is essential that you do not forget about it when you make your estate plan.

Also, you must realize that the laws for your out-of-state vacation home might differ from where your primary residence is located. Therefore, it is important you speak with an attorney to ensure that you have both jurisdictions covered and your estate plan does not violate any laws.

Your Plainview, NY, Domicile in Estate Planning

In estate planning, you hear various terms. And one that you will hear often is your domicile. The law allows for you to have one main place of residence, the domicile, which is where you return when you leave.

A person could technically spend three-quarters of the year out-of-state and still have a domicile in another. In most cases, identifying the domicile is easy. But other times, it might become complicated when you split your times equally between two residences.

You might ask why it matters where your domicile is, and what the difference is between a vacation home and main residence. The main issue you are addressing by labeling your domicile is the state estate tax or income taxes that must be paid upon death. Also, your domicile location determines which probate court has jurisdiction over your estate and your beneficiaries inheritance.

Where you are domiciled has a significant impact on your estate, especially for taxes. Even if your estate is exempt from the federal tax, some states impose estate tax at a lower threshold than the federal level. When you do not specify clearly in your estate plan, two states may claim that you have domiciles in their territory and both apply a tax.

Declaring a Domicile Might Help

You can declare your domicile within your estate documents. Doing so is helpful for determining which state can impose taxes and which probate court has jurisdiction.

Simply stating your domicile state is not enough. Instead, you must use evidence to support your declaration to avoid the state contesting your domicile designation. One way to prove which residence is your domicile is by providing:

  • Physician information – People see physicians in their home state. Therefore, your primary physician should be located in the state where you declare your domicile – and you would have insurance billings and records to prove it.
  • Employment – Your employer is typically located in your domicile state. Therefore, employer information helps support your declaration.
  • Voter registration – You are not required to register as a voter, but doing so helps establish your domicile state.
  • Bank accounts – Showing where your bank accounts were opened and managed help prove your domicile, too – especially if you use a financial institution that is not located in the state of your vacation home.

Ancillary Probate and Your Vacation Home

You want to avoid probate. But if you did not plan properly, your real estate in another state could be subject to that state’s probate. Known as ancillary probate, your beneficiaries may have to deal with the hassles and costs of waiting for probate to complete.

Avoiding ancillary probate is easy if you use the tools similar to those available for your home state – such as transferring the deed of your second home into a trust or creating a limited liability company to hold the property.

Selling or Gifting Your Vacation Home

Now that you have declared your domicile, you need to help loved ones avoid taxes on your secondary real estate. Property is often the highest value asset in an estate, and there are tax implications – especially for out-of-state properties.

An attorney can help you avoid being subject to estate or income tax where the vacation property is located. One of the better ways to avoid taxes is to transfer or sell the property to a family member through a trust. This keeps the real estate in the family.

One issue with doing so is your long-term care planning. When you do not transfer ownership correctly, that vacation home could be seen as a personal asset, which may disqualify you for Medicare or Medicaid benefits.

Questions to Ask before You Plan for Your Vacation Home

Before going through the hassles of selling, transferring, or planning for your vacation home, address the following questions:

  1. Does anyone in the family want the home? You may have sentimental ties to your family vacation home, and you might want to leave it to a child. But before doing so, ask if they want it. For some heirs, inheriting a vacation home is more of a hassle than benefit. Some may prefer to receive the liquid assets rather than the home itself.
  2. Who will pay to upkeep the vacation home? Vacation homes are expensive and still require maintenance even if they sit empty for weeks or months at a time. Some heirs may not be willing to cover the upkeep of that home. If you truly want the home to be a benefit, you may want to set up a trust that includes secondary funds for maintaining the vacation property.

Own a Vacation Home or Secondary Real Estate? Hire an Attorney First

Planning for a secondary home or vacation property can be complicated, especially when you are dealing with two different states. If you have a vacation property and you want to explore your options, schedule a consultation with an estate planning attorney.

The Law Offices of Andrew M. Lamkin, P.C., can help go over your options, discuss the pros and cons for both, and find a solution that works long-term for you and your beneficiaries.

Schedule your free consultation today at 516-605-0625 or contact us online to get started.

Are Probate Records Public Records?

Probate court is a legal process that follows a person’s death. It goes through various stages to help settle the estate, handle any outstanding debts, and distribute assets to named beneficiaries.

Probate records are public records. These include everything from a will to estate inventories, letters of administration, and any document related to the estate’s administration and settlement. These records also contain information on the deceased, identities of the heirs, and any legal actions associated with the estate. They are available via public databases through each state, and the courts are typically held by the state’s court archives.

What Types of Probate Records are Kept in Plainview, New York

Each state has a system for what records they keep and what can be accessed. In New York, the following probate records are part of the public search:

  • Surrogate Court Records: After May 1787, all county surrogate courts have their probate records on file. There is a complicated index for these records, and if you need to search, the surrogate’s court is usually the first place you will be directed to.
  • Probate Packets: Probate packets are the entire estate file. These have copies of the documents related to the estate’s settlement, including administration, inventories, and bonds.

How Do People Access Probate Records?

Receiving a copy of the deceased’s last will or other probate records is relatively easy because these are private documents available to the public. Probate files are part of the court record, and copies are available for a small fee. Sometimes you can access an entire person’s estate online – without a fee at all.

While you do not have access to the exact details of the will, you can review other documents including the name of the executor, heirs, attorneys of record, and the judge that oversaw the case. Some court records will also provide access to all names and contact information for creditors, beneficiaries, and allow copies of those documents.

What if I Do Not Want My Court Records Publicized

Unfortunately, the only way to avoid having your entire estate a matter of public record is to plan early on. Probate court is an open process, and anyone could review these records to determine how much your estate was worth – and some documents tell what beneficiaries inherited and how much. Because most people would rather keep their probate records private – and protect beneficiaries – the first step to avoiding this is to not go through probate.

Any time an asset is passed through a will, it is subject to probate. Probate is not only a hassle because your information is now public, but it is expensive and time-consuming – and entirely unnecessary for a modern estate.

Why Work to Avoid Probate?

Probate is expensive and lengthy. Therefore, your beneficiaries will not receive their inheritances right away, and probate courts typically cost five to 10 percent of the value of the estate assets. Some estates take up to one year to process through – and if there are any will contest they can take much longer.

You have designed an estate plan to protect loved ones and ensure they are taken care of; therefore, your last step is to help them avoid probate entirely.

If you think it is not an issue to have your estate a matter of public record, consider this: after probate is filed, any creditor can look up the estate and start petitioning the court for money. Therefore, the amount your beneficiaries receive can decrease even further. The process of fighting these claims will drain the estate and put an unnecessary burden on your loved ones as well.

You do not have to go through probate – so why bother?

Instead, you can speak with an attorney and work to avoid the entire hassle and cost of the probate process – and protect your loved ones.

Creative Tools that Are Effective in Avoiding Probate

No estate is required to go through probate, but to do that you must implement a variety of tools. Some of the more preferred ways to do this include:

  • Revocable Living Trust: This is the more popular method for avoiding probate. You establish a trust, control assets while alive, and then the assets are distributed probate-free upon your death.
  • Creating Beneficiary Deeds: A beneficiary deed is a real estate document that allows you to transfer property, like your family home, upon your death. The transfer takes place, and there is no reason for probate. You can send it to any jointly owned property, such as a home you share with your spouse.
  • Transfer Upon Death (TOD) Designations: You can also use the transfer-on-death designation through your personal property like vehicles, trailers, motorcycles, and other personal items. There are limitations on what property you can legally TOD; therefore, speak with an attorney.
  • Payable Upon Death: These designations are tied to financial accounts, such as life insurance, retirement accounts, and bank accounts. You can pick a beneficiary, and the institution that oversees the asset would automatically transfer upon your dearth.

Hiring an Attorney is the Best Option

If you truly want to avoid probate, you have a few options, but not all will apply to your situation. Therefore, the best place to start is by contacting an attorney in the area and exploring your options. An attorney, like the Law Office of Andrew M. Lamkin, P.C., will go over the options you have, your estate, and find the best way to transfer assets to loved ones all without becoming a public record in surrogate’s court.

Schedule a free consultation today by calling 516-605-0625 or request more information online.

How Aging Affects Memory – and What to Take Care of Now

Most people assume that it is natural to lose the ability to remember things as they get older. While memory loss does happen as part of the aging process, the intensity and how it affects you depends on the person and type of memory affected.

Also, not all memory loss is part of dementia or Alzheimer’s Disease. However, a vast majority of the more severe cases are. Therefore, it is essential that individuals and family members act early – including preparing an estate plan – before memory becomes a legal issue.

One Critical Flaw in Estate Plans Made in Plainview, NY

When a couple makes an estate plan, they often list a spouse as their beneficiary and sometimes the executor of their estate. They do this because at the time they draft their estate plan, both parties are of sound mind and have a legal capacity to do so. Unfortunately, years later one party could fall ill or suffer from a form of dementia, rendering them unable to fill their role. Without an alternate designated, the estate could find itself in court with parties battling to take over.

It is essential to plan, especially before memory loss or diseases like dementia take over. The sooner the estate planning starts, the more likely the person with the memory loss can participate and make decisions – and more likely the court is to honor those decisions.

Why Plan Now?

Making legal decisions, including an estate plan now, is essential for a few reasons:

  • Planning early allows for the individual to express their wishes and be involved in the planning – including designating future care.
  • Early planning will eliminate the stress of family members having to guess or make decisions on their loved one’s behalf.
  • Starting early ensures the estate has time to sift through the problematic legal procedures and financial issues that come with long-term care planning, end-of-life management, and estate distribution.

When older individuals start the planning process, they need to ensure that their estate plan includes the core components, such as:

  • Long-term care
  • Financial and property plans
  • Naming an agent and alternate agent

The Role of Capacity in Estate Planning

A person’s capacity plays a substantial role in estate planning. Once a person is legally incapacitated or cannot make decisions for themselves, they rely on documents pre-made in their estate plan to protect them. However, a loss of mental capacity can be quite subjective.

In situations where a person suffers an unexpected loss of capacity or has slowly diminished their capacity over time, the courts would consider the following factors:

  • Can the individual remember details?
  • Does the individual act out of character compared to the typical demeanor?
  • Can that party recognize family members?
  • Does the individual suffer from constant confusion and decreased attention?
  • How difficult is it for the person to speak or follow through in a conversation?
  • Is there a decreased appreciation for risks?

If a person fails the capacity test, then the courts may deem them incapacitated.

If a person is considered incapacity before they finished an estate plan, the documents and decisions they made will be subject to court scrutiny, and the final will could be disregarded entirely.

Therefore, attorneys urge their clients to start the process early. Dementia, Alzheimer’s Disease, and other memory-affecting conditions can strike without notice, and by the time the symptoms are recognized, it could be too late to create an estate plan.

How an Attorney Can Help

While certain documents could be completed without an attorney, it is best to consult one if you suspect that your mental capacity is declining, or you were recently diagnosed with Alzheimer’s Disease. Getting legal advice and services from a local estate planning attorney can be helpful, especially in complicated cases just like this.

Your attorney will discuss the key issues that come with a diagnosis just like this, such as:

  • Your options for health care decisions and which party will make health care decision on your behalf.
  • Your options for managing the property and personal care – and if you will have a separate party designated for that role.
  • Your potential options for long-term care coverage, including veteran benefits, Medicare, or Medicaid qualifications.

5 Essential Tips for Better Planning with Memory Loss

It does not matter how severe the memory loss is now, or whether you suffer from forms of memory loss at all. The more prepared you are, the easier it will be for family members to help you, but also protect you from the endless scams out there that target aging individuals specifically.

Some key things to keep in mind while you work on a plan include:

  • Hand Out Copies: Anyone you give a power of attorney designation to should have a copy of the document as well as access to the original – whether that means access to a safe deposit box or a code to an in-home safe.
  • Name a Successor: No matter what the situation is, you need to provide a backup agent or successor to the original power of attorney. That way, if the original party cannot fulfill his or her duty, you have an alternative that was selected by you.
  • Brain Autopsy: Some individuals may want a brain autopsy to identify what caused their dementia or to donate for research. If this is something you want to do, you will need to ensure the power of attorney with health care decision-making power does this.
  • Health Care Providers: Give a copy of your living will to your health care providers so that they know which parties are authorized to make decisions.
  • Attorney: Consider hiring an attorney to manage your estate if you do not have someone that you trust to handle the assets and personal finances.

Speak with an Attorney Regarding Your Care

Avoid the hassles of waiting until the last minute and speak with an attorney about your long-term care planning, wishes, and more today. Contact the Law Office of Andrew M. Lamkin, P.C. now for a free estate planning consultation at 516-605-0625 or request more information online.

How Does Nursing Home Medicaid Work?

Medicaid is a government-funded program that takes many forms. Many New York residents are surprised to find out how many options they have for Medicaid coverage, including Nursing Home Medicaid.

Nursing Home Medicaid is one of the more comprehensive Medicaid programs, and it comes equipped with all Medicaid services from Community Medicaid and Community Medicaid with Long-Term Care. Also, you receive nursing home coverage as well as home care, adult day care, and assisted living care coverage.

Nursing home care in New York is costly – averaging more than $100,000 per year. Very few people have adequate resources, income, or even insurance to pay the costs of nursing homes. However, they need those long-term care services. Medicaid is the most common source for funding nursing homes and long-term care needs, but you need to apply for the proper coverage first.

How to Pay for Nursing Homes with Medicaid in Plainview, NY

A nursing home is a residential facility where you receive 24-hour nursing care and supportive services. Anyone who is 65 years or older, disabled, or legally blind qualifies for Medicaid, which handles nursing home fees. But you are only eligible based on income, resources, and if you require skilled nursing care.

Nursing Home Medicaid has stringent requirements. And unlike Community Medicare, Nursing Home Medicare does have a lookback period. Therefore, it is vital that you understand what these requirements are, and speak with an attorney to begin Medicaid planning sooner than later.

How to Qualify for Nursing Home Medicaid in New York

When you apply for Nursing Home Medicaid in New York, you are subject to substantial scrutiny. There are two primary areas that the state reviews when considering your eligibility: income and resources. Like other forms of Medicaid, you have strict monthly limits and maximum asset value amounts.

Your income is any money you receive per month or on a time-based schedule such as Social Security distributions, checks from a pension, or payouts from a retirement account. Your resources are assets. These assets include everything from investment accounts, stocks, bonds, savings accounts, or retirement accounts that you are not receiving a distribution from yet.

New York gives you a $50 per month income allowance if you are a nursing home resident. You cannot shelter income in a pooled income trust for Nursing Home Medicaid either.

Resource Limits for Nursing Home Medicaid

If you apply for Medicaid, you are subject to a nursing home resource maximum of $14,850. Any resources above this maximum must be spent down before you will qualify. If you exceed the resource value, speak with an elder law attorney to see how you can salvage your hard-earned assets while still qualifying for Medicaid.

The Five Year Lookback

Community Medicaid has no look-back period, but Nursing Home Medicaid does. If you want to gift or transfer assets to qualify for Medicaid without the hassles of spending down, you are subject to a look-back period of five years. Therefore, after you have completed all transfers, you must wait five years to apply or pay the penalty if the transfer was within the five year look-back.

The penalty rate is based on regional rates. For example, in 2017 the regional rate per month was $12,157 for New York City. Therefore, if you transferred assets, the value of those assets in the five year period would be divided by the regional rate to determine your penalty.

New York bases regional rates by the district. For example, New York City has a different rate than Northeastern New York (i.e., Albany, Greene, Hamilton, or Washington). You can see a full list of Medicaid Regional Rates online.

During your penalty months, you will not receive Medicaid payment. Instead, you pay privately for nursing home care until the penalty period is up. Then, Medicaid will take over payments.

For example, you transferred $100,000 in assets within the five year look-back. You live in Manhattan; therefore, as of 2017, the regional rate is $12,157. You would be subject to a penalty of 8.22 months for the transfer. If you lived in the Central New York District, the regional rate is $9,511, which means your penalty would be 10.5 months.

Intent to Return Home

Your home’s equity is exempt from resource considerations if you can prove that you intend to return home. Intent is subjective, but if there is a possibility that you will leave the nursing home and return home, you can request an exemption. The state could place a lien on your property if you are not reasonably expected to return home. Therefore, you must be cautious about claiming this exemption.

Other Exempt Income and Resources

You can also spend down your excess income to qualify for Nursing Home Medicaid. For example, if you are spending money on health insurance premiums, that money is not counted when the state reviews your income. Also, if you receive payments from specific resources, the state may allow for exemptions such as Holocaust restitution payments.

Contributing Your Income

If you are considering staying in a nursing home, the Nursing Home Medicaid program does require that you contribute your monthly income to the cost of your care. You are only allowed to retain $50 per month for yourself. You can pay your excess income to the Department of Social Services to keep eligibility, but it may be in your best interest to find a more useful way to spend the excess and reduce resources.

Speak with an Elder Law Attorney

Limiting your income and resources for Medicaid planning is a highly complicated process. The sooner you start it, the better the outcome might be and the less likely you are to face long-term Medicaid penalties.

If you plan to or suspect that you will need nursing home care at some point later in life, start the process of Medicaid planning now. Contact the Law Office of Andrew M. Lamkin, P.C. Attorney Lamkin can help you cover your bases when it comes to reducing resource value, limiting income, and qualifying for Medicaid.

Explore your options for long-term care planning by scheduling a free consultation at 516-605-0625 or request more information about elder care services online