January 22, 2020

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

What Is Community Medicaid and Who Qualifies for It?

New York offers various homecare and nursing home care solutions for aging residents. To determine which type of services you qualify for, you need to assess your budget. Depending on your income, age group, and disability status, you may be eligible for individual types of Medicaid coverage offered by the state.

Community Medicaid is one of those options. You may qualify for Community Medicaid or Community Medicaid with Long-Term Care if you are over the age of 65, blind, or certified disabled by the Social Security Administration or NY State.

What Does Community Medicaid Cover in Plainview, NY?

Community Medicaid is a health insurance program that handles most healthcare-related expenses such as doctor’s office visits, hospitalization, laboratory testing, and prescription medication.

If you are disabled, aged, or blind, you most likely have Medicare coverage and Medicare is your primary health insurance. However, Medicaid is a health insurance supplement. Community Medicaid helps bridge the gap between what Medicare covers and what you would otherwise pay for out-of-pocket. If you already have a supplement policy, such as Medigap, then Community Medicaid would cover anything after both policies are exhausted.

Another key coverage you receive with Community Medicaid is prescription drugs. Medicare does not cover prescriptions directly. Instead, Medicaid pays to Medicare under free Medicare Part D to cover your prescription drug costs.

What Is Community Medicaid with Long-Term Care

Community Medicaid with Long-Term Care works like Community Medicaid regarding prescription and health insurance coverage. However, it also offers additional coverage for long-term care services such as adult day care, assisted living, or in-home nursing care.

Do You Qualify for Community Medicaid?

Medicaid eligibility is based on income and resource limits. Therefore, you must pass a means-tested system. If you have low income and limited resources, then you may qualify for Community Medicaid.

The means-based system considers two financial categories:

  • Income – This is any money that you receive on a scheduled basis including pension payments, IRA distributions, and Social Security payments.
  • Resources – Resources involve your assets that could be used to pay for health expenses and in-home nursing care. These are assets such as your savings accounts, stocks and bonds, real estate, and an IRA that you are not currently receiving a distribution from.

Income and Resource Limitations for Community Medicaid to Know

Medicaid has income limits, which include:

  • $825 per month for an individual
  • $1,290 per month for a couple

Anyone that is aged, disabled, or blind qualifies for a $20 per month disregard. Therefore, if you are in one of those categories, you would have an income limit of $845 per month as an individual, and $1,310 per month for couples. Couples only receive a one person $20 disregard.

The resource limits are in addition to income limits, and they include:

  • $14,850 per individual
  • $21,750 per couple

If you are not looking for long-term care coverage, you can declare your assets and you are not required to document them for the application. If you do want long-term care coverage, you must record your resources. Resources are the primary determination of whether you qualify for Community Medicaid or Community Medicaid with Long-Term Care. Therefore, if you do not need long-term care, you will not have a heavy emphasis on your resources.

What If You Exceed the Limits?

Even if you exceed these limits, you could still qualify for Community Medicaid programs. There are  ways to help you qualify even when your income or resources go over the threshold. However, you should consult with a Medicaid planning attorney to explore these options. An attorney can review your expected income and current resource value, then help with a Medicaid or Medicare plan that legally assists you with qualifying for these forms of assistance.

Most options involve doing a spend down. This means that you spend to a specific threshold to help qualify for Medicare.

These are some options when you exceed the limits.

  • Paying Medical Bills – If you have monthly medical expenses that are more or equal to the amount of income over the threshold, Medicaid will ignore the excess income and allow you to qualify for Community Medicaid benefits.
  • Income Trust – New York is a state that realizes that $845 per month is not enough to cover someone’s cost of living let alone medical care. That is why they allow residents with excess income to establish a Pooled Income Trust. With an attorney’s help, you can set up the trust and then deposit the surplus income into the trust. Then, you submit your living expenses to the trust for reimbursement and the trust pays your bills. A Pooled Income Trust must meet specific state requirements, and you must provide monthly contribution records to show that it is active.
  • Paying Medicare Provider – If you do not want to use a Pooled Income Trust, you can spend down your excess income by paying your Home Care Medicaid Provider directly and contributing to the cost of care.

Earned Income

Some individuals that exceed the income amount may be able to claim for earned income.

For example, an applicant works part-time and earns $1,065 per month. All earned income qualifies for a $65 disregard, and the remaining income is divided by two. For Medicaid budgeting, that applicant can deduct $65 from earned income totals, leaving them with $1,000 per month. Once that amount is divided by two, they have a budgeted earned income of just $500 – qualifying them for Medicaid.

Considering the Look-Back Period

When your resources and income disqualify you from Medicaid, you may want to spend down so that you qualify. Spending down might include transferring assets to other family members so that you have fewer resources holding you back.

When applying for Community Medicaid, you can do this. Community Medicaid does not have the look-back period that other Medicaid programs do, which gives you more options for spending down before applying.

Need Assistance with Medicaid Planning?

If you need help with Medicaid or Medicare planning, speak with attorney Andrew M. Lamkin at the Law Office of Andrew M. Lamkin, P.C. Spending down resources and moving assets is complicated, and you want to ensure you follow the proper procedures so that you do not disqualify yourself from much-needed Medicaid coverage.

Schedule a free case evaluation at 516-605-0625 or request more information online.

Legal Issues to Consider When Caring for a Parent with Dementia

You have a parent suffering from dementia, and now you are left wondering what you can do to protect their health, happiness, and their finances. A person who has dementia relies heavily on their adult children, and they need someone who can make the critical financial and healthcare decisions on their behalf that are in their best interest. While your parent has their mental abilities still intact, now is the time to act. The sooner you take care of the legal issues and complete the necessary paperwork, the easier it will be when your loved one’s condition worsens.

Critical Documents to Complete After a Dementia Diagnosis in Plainview, NY

Once your parent is diagnosed with dementia or Alzheimer’s Disease, the next step is to complete the necessary paperwork. Once your loved one’s condition worsens, you will not be able to complete these tasks without going to court and waiting months for the system to work out these details.

Here are some documents that are essential so that you can care for your parent correctly.

Durable Power of Attorney

The durable power of attorney is a legal document that gives an adult child the authority to make financial decisions for their parent. This includes:

  • Writing checks to pay creditors and bills
  • Filing tax returns and depositing tax refund checks
  • Selling a home
  • Selling other assets for the benefit of their adult parent
  • Handling the investment of any assets

A general power of attorney is not as reliable as a durable power of attorney because the durable option remains in place even if the parent becomes incapacitated. A regular power of attorney would end the power given to you if your parent was to become incapacitated due to his or her illness.

When you have a properly drafted durable power of attorney, all financial institutions that your loved one currently uses will use the document, but you may need to also complete the financial company’s exclusive power of attorney form. Therefore, the faster you start the process, the better, because some firms may require these documents and take several weeks to process them.

Healthcare Proxy

A healthcare proxy or healthcare power of attorney gives you the ability to make medical decisions for your loved one. You can choose which doctors they see, which medical treatments they accept or refuse, and other healthcare decisions that they cannot make on their own.

It is essential that you discuss what your loved one’s wishes are for health and well-being while they are still lucid enough to make those decisions. That way when you exercise your power as the health care proxy, you know that you are following their wishes.

Living Will

A living will, or advanced health care directive takes the guesswork out of deciding what your loved one needs or wants regarding their health. Your parent can dictate what medical treatments they want or don’t want, especially near the end of their life.

They may also designate what level of life-saving measures they want to be taken in their living will.

Updating the Current Estate Plan

While you do all the paperwork, make sure that you also meet with an estate planning attorney to update your loved one’s current estate plan. A will dictates how assets are handled upon your parent’s death, and which beneficiaries receive those assets.

Sit down with an estate planning attorney and your loved one while they are still able to make these critical decisions. Ensure that everything is updated, new assets are added to the estate plan, and that everything is addressed – including anything that has changed since your loved one’s diagnosis.

Living Trust

If your parent has a significant estate, you may want to consider a living trust.

A living trust makes it easier to manage assets in your parent’s estate, including investment accounts or the family home. The trustee must follow instructions made in the trust, which limit anyone taking over for personal gain.

You will need to transfer all your parent’s assets into the trust, including investment accounts, homes, and other tangible assets that are currently in their name.

Another benefit to using a trust is that you will be able to bypass probate court. A living trust lets you avoid probate and assets are distributed directly to the beneficiaries of the trust if your parent were to die from their illness.

The Capacity to Make a Will

One issue that comes up with a parent who is diagnosed with dementia is their mental capacity to make and execute a will. Legally this is known as the testamentary capacity. Your parent’s will might be challenged if they sign the will and their dementia is too far progressed to justify it.

Therefore, it is vital that you meet with an attorney and discuss your options for updating your loved one’s estate plan. Some considerations your attorney will need to make include the extent of the property being added, beneficiaries of the estate, and if your loved one can make reasonable judgments when executing a will.

Assessing the Costs

Not only do you need to have financial documents and estate plans updated, but you also need to plan for how you will cover the costs of your parent’s daily living, including in-home care or putting them in a nursing home when their disease progresses too far. These costs can quickly add up, and cost thousands of dollars that you do not have. An estate planning attorney can help you plan for these expenses within the estate plan, and also through Medicare planning.

Meet with an Estate Planning Attorney

Once your parent is diagnosed with dementia, you need to meet with an estate planning attorney quickly. The sooner you act, the easier it will be to complete the necessary paperwork, but also to do so before your loved one’s condition makes them ineligible for signing a new will.

For your concerns, meet with the Law Office of Andrew M. Lamkin, P.C. We can help you explore your options for protecting your loved one and ensuring they receive the care they need.

Schedule a free case evaluation now at 516-605-0625 or request more information online.

Do Retirement Accounts Pass through Probate?

After a loved one dies, you may find yourself wondering how all the deceased’s assets are handled, and whether all assets go through probate. You are already dealing with the emotional trauma of losing a loved one, but now you are also absorbing the financial shock of your loss. You may wonder if your loved one’s retirement accounts will pass over to you without having to wait months for the probate court to work through your loved one’s estate plan, and pass down assets to the beneficiaries.

Do Retirement Accounts Go through Probate in Plainview, NY?

Probate court is an official process that ensures all assets are frozen from a deceased until they are validated, and the proper beneficiaries located. It is a way to protect beneficiaries from having assets taken from them.

The process typically happens in a few months, but for some beneficiaries, it can feel like a lifetime. A beneficiary may wait even longer if the will is contested or there is any difficulty locating assets named in the estate plan. However, in most cases the probate process will be complete approximately one year after the death.

When it comes to retirement accounts, most do not go through probate. Instead, they pass outside of probate. This includes the typical retirement accounts like:

  • IRAs
  • 401(k)
  • 403(b)
  • Roth IRAs

When you open a retirement account, the paperwork you complete includes naming a beneficiary for your account. You can name just one beneficiary or multiple. Then, when you pass away, the party that manages the retirement account will hand over the assets to the heirs named. There is no need to go through probate because the contract created at the time you make your retirement account is enough to satisfy passing the funds over immediately.

Also, because retirement accounts do not go through probate, your loved ones will not lose their assets to creditors. Creditors can only request payment from assets that pass-through probate court; therefore, the money in a retirement account will be given directly to the beneficiaries.

Common Mistakes When Naming Retirement Beneficiaries

Whether you are creating a new retirement account, or you want to revisit your beneficiaries on current accounts, it is essential that you do it right. There are ways that a retirement account will be sent to the probate court, especially when the paperwork is not completed correctly.

Therefore, make sure your retirement account does not have any of these issues:

  1. Not naming a spouse as the beneficiary. You are not required to designate a spouse as your beneficiary, but if you live in a community property state, you would need to. Luckily, New York is not a community property state. Therefore, if you do not wish to name your spouse, you are not legally obligated to do so. However, if you live in a community property state, your spouse is legally entitled to half of anything you have added to that account since you marry. Therefore, they could petition the courts and the retirement account would be forced to filter through probate before the funds are distributed.
  2. Naming your estate or trust as the beneficiary. You might think that it will save time and hassle naming a trust or your estate as a whole as the beneficiary, but then any funds distributed through the estate must go to probate court. Therefore, your loved ones will have to wait for probate to complete before they can receive any funds from your retirement account. Also, creditors can take their share of the retirement account before your loved ones receive their inheritance.
  3. Naming a minor as your retirement account beneficiary. Minors cannot legally inherit. So if you name a minor as a beneficiary, the funds will be sent through probate so that trust (or another designated account) can be set up to hold the funds until that minor comes of age. Knowing this, if you would still like to name a minor, you need to set up an account that manages the money for that minor under the Uniform Transfers to Minors Act (UTMA). Any financial advisor can handle this for you.
  4. Not naming an alternative beneficiary. If you name one heir, but they are unable to accept the inheritance, then your assets from retirement accounts would have to go to probate so that the judge could decide who inherits the account. Always name at least one alternative so that you avoid this.
  5. Not revisiting your beneficiary designations and updating them. It is imperative that you look over your designations at least once a year to make sure they are accurate. For example, if you were to divorce and not name your new spouse or an adult child as the beneficiary, then your ex-spouse would receive your retirement account assets, even if you have been divorced for several years.

Speak with an Estate Planning Attorney to Handle Your Retirement Accounts Properly

Whether you have one retirement account, are just entering your career field, or you are creating a retirement account for the first time, it is essential that you designate your beneficiaries correctly. Let the Law Office of Andrew M. Lamkin, P.C. help you do that. We not only help you protect your retirement account assets, but we can establish an estate plan so that your loved ones are taken care of when you pass away.

You can avoid the hassles of probate by having a well-written estate plan, or we can examine your options for a trust, which allows you to bypass probate court altogether.

To explore your options, schedule a no-obligation consultation today at 516-605-0625, or you can request an appointment online.

Retirement Account Rules to Know for Estate Plans

Retirement accounts are there to provide you with income and financial freedom. While the money is yours, what you can and cannot do with that money is regulated by state and federal tax laws. It is imperative for anyone new to retirement accounts, and those with active accounts, to understand these laws. Failure to comply could result in penalties or fines by the Internal Revenue Service (IRS).

Regulatory guidelines change frequently; therefore, you should keep up-to-date or consult with an attorney and accountant at least once per year to ensure your retirement plan is still compliant.

What Rules Should You Know for Plainview, NY Retirement Accounts?

You have numerous rules to follow when it comes to retirement planning or even taking money from your retirement. Because you worked so hard to earn that money, make sure you keep as much of it as you can and without any headaches by following these key rules:

Cash Out Rules Apply

Some plans have a qualified provision that lets you distribute a vested balance if that amount is less than $5,000 – known as an involuntary cash out. In 2005, the rules changed regarding these cash outs. The new rules require that a plan administrator rolls over your involuntary cash-out amount anywhere from $1,000 to $5,000. That means that they cannot distribute amounts inside that range to you, but instead must roll it over into a Traditional IRA. If you are non-responsive after being removed from the company, then the sponsoring company can use an involuntary cash out without your consent.

Therefore, if you do not proceed cautiously, or if you lose your job, your plan could be rolled over into a participating IRA that is not of your choosing.

Plan for Taxes for Beneficiaries

When you create an estate plan, you will designate a beneficiary for your retirement accounts. Realize that the person receiving your retirement balances could be subject to taxation, because retirement accounts are treated the same as other assets. And because retirement accounts are income from the deceased – like all income there are taxes applied.

If the plan is a Roth IRA, however, there may not be the same taxation applied.

Choose Beneficiaries Wisely

When picking a beneficiary for your retirement accounts, be cautious. While most people will name their spouse or children, other times it is best to consider how your estate will be handled upon your death. Will your estate go through probate or does the bulk of your estate go through a trust?

Also, make sure that the designation forms you fill out with your retirement account match the designations in your estate planning forms. Otherwise, your loved ones may have to deal with months in court fighting for which party should receive your retirement funds.

Never Automatically Assign a Retirement Account to a Trust

To avoid probate, you might be tempted to name your trust as the beneficiary of your retirement funds. However, it is highly advised that you consult with an attorney before doing so. You and your attorney must weigh the time and cost of creating a qualified trust versus the costs of allowing the retirement account to pass over without one. Also, consider the amount that your loved one would receive in a payout.

For example, a 401(k) and IRA requires one lump sum distribution upon your death. Therefore, you could not make smaller payments to your loved one to minimize the tax burden – and the same thing happens if you assigned your loved one as the beneficiary of the trust.

Consider Leaving Retirement to Charity

If you already planned on leaving some of your estate to charity, consider doing so with retirement funds instead. These assets could escape the income and estate tax too, with proper planning.

Remember That RMDs Often Apply

In most cases, your beneficiaries will be required to take an RMD, which is a required minimum distribution. These are the amounts that the United States government requires for a person to withdraw each year from an IRA or employer-created retirement plan upon the death of the account holder.

Your loved ones should prepare for these RMDs ahead of time. That way they are not accidentally bumped into a higher tax bracket or losing a large portion of their inheritance to income tax. If your loved ones do not accept their RMD, they could face harsher penalties too.

Do Not Forget the Special Rules for Bonds

Savings bonds are especially difficult when it comes to estate planning. If your savings bond names only you as the owner, then your bond is part of your estate. Therefore, it may be subject to probate. According to the new rules outlined by the U.S. Treasury Department, all savings bonds that are more than $100,000 in value must go through probate. However, most estates with sizeable bonds would go through probate regardless, because it is likely they will have assets of equal value – if not more.

On your savings bonds you can create survivor’s options. This is an option for the beneficiary of the bond to sell the bond back if the owner of the bond passes away or becomes legally incapacitated. Only the designated beneficiary in the survivor option can sell back the bond.

Savings bonds are still taxable. Therefore, an owner may pay income taxes on their bonds interest each year or defer tax payments until the bonds are redeemed. Most people defer. Therefore, if you were to leave a bond to a loved one, the accrued interest on the bond and income must be taxed and satisfied before the remaining balance of that bond is given to the beneficiary.

Furthermore, the interest and income earned from that bond may increase your estate value; thus, making your estate subject to estate tax. If your estate ends with more than $5.25 million or more in assets, including savings bonds, then it will be subject to estate tax.

Confused about Retirement Accounts and Estate Planning?

Figuring out the laws when it comes to your retirement accounts and estate plans is not easy. Not only do you have state regulations, but tax laws and federal rules for some retirement accounts. Therefore, it is best that you consult with an estate planning attorney any time you are drafting a will or thinking about naming your trust as the beneficiary to your retirement funds.

To explore your options for hassle-free retirement and estate planning, speak with the Law Office of Andrew M. Lamkin, P.C. today. Schedule your free case evaluation at 516-605-0625 or request more information online.

How to Help Your Widowed Elderly Parent with Legal and Financial Issues

After losing one parent, you may see that your surviving parent is struggling with the legal and financial tasks that come afterward. After all, they are grieving and the last thing they should have to deal with is the paperwork, phone calls, and endless to-do items.

As an adult child, there are things you can do to help your parent. While some of these tasks can wait, others may need to be addressed immediately. Therefore, consider this list of tasks that must be done and see what you can tackle first.

10 Steps to Take after a Parent Dies in Plainview, NY

You are going through an emotional time, but there are legal and financial tasks that you must complete so that you can truly put your loved one to rest. To help your surviving parent, we have compiled a list of ten must-do tasks. Some of these you can do alone, while others you should consult an attorney for to ensure that you are following New York’s laws.

1. Locate All Assets

Even if your surviving parent is named as the executor, you can help by finding all the assets. Ask your parent what assets they have, and where they might be located. Make a master spreadsheet that has all bank and brokerage account information, retirement accounts, insurance plans, real estate, safe deposit boxes, and significant assets that are vital to the estate.

2. List All Debts

See if you can create a list of debts the estate owes, such as mortgages, car payments, credit cards, private loans, and student loans. Review that list with your surviving parent and ask to see any bank records or financial statements so that you can get account numbers, balances, and the contact information for each creditor in order.

3. Apply for Social Security

Help your loved one apply for Social Security benefits (if they are eligible). You can find information for your local SSA office online and pay attention to survivor’s benefits. You can also ask about other benefits your surviving parent may be entitled to, such as veterans pay, pension accounts, or any employer-related payments.

4. Review the Will

Your parents most likely had a will drafted. Therefore, you need to get a copy of that will and review it. See what wishes your parent laid out in that will, including who was named the executor. If the executor is not yourself or your surviving parent, contact the executor right away so that they may begin their task of settling the estate.

5. Meet with an Attorney

Whether the estate goes to probate or not, it is best that you meet with an attorney to review your options. An attorney can help ensure that all assets are accounted for and distributed in accordance with the will, but also that any minor steps required by the state are addressed so that your family’s estate completes the process as quickly as possible.

6. Update Wills and Trusts

If your surviving parent has a will or trust, now is the time to have those documents updated. Most likely they would have named their primary beneficiary as the spouse that has passed away; therefore, they will need to designate new beneficiaries.

Also, your surviving parent may need to update their healthcare directive and executor roles.

7. Create a Financial Power of Attorney

Have your surviving parent make a financial power of attorney. This document will name someone that handles their financial matters if they become incapacitated. The party can handle everything from managing investments to paying bills and it is a critical document for a widowed spouse to have.

8. Start Organizing

Once the documents are created, your parent’s estate probated, and the turmoil has settled, the next step is to help your surviving parent organize the documents. A good estate plan will not help if the documents are not organized and prepared in case the unthinkable were to happen.

Create a filing system that includes all power of attorney documentation, bank and brokerage account information, retirement accounts, insurance policies, and the updated will and trust.

9. Update Insurance Policies

One overlooked step is updating insurance policies. Make sure that your surviving parent picks a new insurance beneficiary. Insurance designations are not the same as an estate plan. The beneficiary named on an insurance policy will trump any name in an estate plan; therefore, you want to ensure your surviving parent updates this as quickly as possible.

10. Find a Support Group

One of the best ways to help a grieving loved one is a support group. There are many support groups offered by local churches, hospitals, and community centers. They offer support to those who have lost a spouse, including specialty groups for spouses that have lost loved ones to illnesses like cancer.

Need Assistance with Administering a Loved One’s Estate?

After losing a parent, the last thing you need to worry about is the tedious steps involved with settling an estate. Meet with an estate planning attorney who can help you with probate and estate administration. An attorney is a neutral third-party that can help provide you with advice, insight, and even update documents so that your surviving parent is taken care of.

To explore your options or to get assistance with probate, speak with the Law Office of Andrew M. Lamkin, P.C.

Schedule a free case evaluation at 516-605-0625 or request more information online.

A Quick Primer on Elder Law

As you age, you face critical decisions that not only impact your quality of life but the life of your loved ones. Some decisions you might make include how you receive medical care, where you live, and what you want when you pass away.

Many decisions you make have legal considerations too, which is why elder law attorneys are there to help. Elder law attorneys are advocates. They help you make plans, offer advice, and draft legal documents you might need to protect yourself, your assets, and your loved ones.

What is Elder Law and How Does It Work in Plainview, NY?

The laws of New York have specialized fields – such as family law, tax law, and corporate law. While you have heard of most of these areas, one you may not have heard about is elder law. Elder law handles the legal issues affecting the elderly.

Some areas that elder law covers include:

  • Guardianship and Financial Administration – If you became incapable of caring for yourself or you were unable to make decisions due to an illness or incapacitation, how would your estate and personal matters be handled. In these instances, the court is called in to appoint a guardian. While in some cases the court might appoint someone you would have picked yourself, in most cases, you may not receive the guardian you intended. Using your rights, you could select a guardian yourself – thus, ensuring the person who handles your healthcare, personal, and financial decisions are one you trust.
  • Advance Directives, Power of Attorney, Living Wills – You have numerous documents that you can draft to help prepare you in case you are incapacitated. An Advance Health Care Directive lets you create wishes for medical treatments if you become incapacitated. This document outlines all care you wish to receive and at what point you want medical professionals to withdraw attention.
  • Health Care or Social Security – Another critical area of elder law is Medicare. With an attorney’s help, you can handle disputes over medical care, learn about your patient rights, and apply for Medicare coverage. Also, most elderly individuals rely on Social Security benefits during retirement. If you have issues with Social Security, your attorney may be able to transfer benefits to spouses and dependents to lessen your estate’s value.
  • Estate Planning One of the more commonly used areas of elder law is estate planning and estate administration. Estate planning involves transferring your property to intended beneficiaries upon your death. Estate planning also comes in many forms, including the traditional Will to the trust. When you meet with an elder law attorney, you will discuss which options are best for your estate based on your wishes, estate value, and New York laws.

What Does an Elder Law Attorney Do?

An elder law attorney is an advocate for the elderly. He or she works to protect your rights, but they also handle a variety of legal matters that affect you as you age or become disabled. Your elder law attorney can help with everything from long-term care planning to retirement to Social Security to Medicare and estate planning.

An elder law attorney is more capable of handling sensitive issues as well, including the physical and emotional needs of older adults and even those who are disabled.

Some Ways an Elder Law Attorney Can Help

  • Discussing wills and other estate planning documents, including preparation for minors, adults with special needs, probate, and other estate planning issues that can arise
  • Creating a durable power of attorney
  • Creating a plan for financial planning, housing, and estate or gift tax issues
  • Explaining all nursing home options, resident rights, and filing nursing home claims if necessary
  • Drafting a living will or creating an advance directive, including the Power of Attorney or long-term planning documents
  • Helping locate long-term care facilities or managing assisted living costs
  • Helping apply for government benefits, including Medicare or Social Security
  • Providing help with financial planning and health care planning

What to Consider When Hiring an Elder Law Attorney

An elder law attorney does not always specialize in all areas that affect the elderly. Therefore, you want an attorney that handles the specific area of elder law you need, but also consider what long-term services they may be able to offer you. It is easier if you have established a long-term relationship with an elder law attorney – in case new issues arise.

Find an Elder Law Attorney in New York Today

If you need an elder law attorney or you want to explore your options for elder law services, contact an attorney in New York that has years of experience handling everything from advance directives to real estate, Medicaid, and estate planning.

The Law Office of Andrew M. Lamkin, P.C. can help you with your long-term planning needs. We help with legal and non-legal issues, including nursing home planning, retirement planning, and long-term care insurance.

Schedule your free, no-obligation consultation today at 516-605-0625 or request more information online.

10 Things to Know about Probate Court in New York

When a loved one dies leaving a will, you must go through the legal process known as probate. Probate is only required in the state of New York when your loved one’s assets total more than $30,000 in value.

If the assets total over $30,000, then you will go through the stages of probate, and eventually, the estate will be distributed in accordance with the will. While the process sounds straightforward, there is plenty to know about probate court. Also, if you have not hired an attorney to help you probate the estate, it is in your best interest to do so. An attorney can help navigate through this complicated process, advise you of your rights and ensure you do not have unnecessary delays.

10 Facts to Know about the Probate Process in Plainview, New York

Most people going through probate will be first-timers. Therefore, you have plenty of questions that you want to be answered and you may have numerous steps to go through before everything is completed and you can move forward.

Here are just a few facts to know while you wait to meet with a probate attorney.

Fact 1: Probate is Not Free

Probate does cost money, but the cost associated with your proceeding varies depending on the complexity of the case and the value of the estate itself. Your filing fee with the Surrogate Court is based solely on value. For example, if your loved one’s property ranges from $10,000 to $20,000 then you would pay only $75. If their estate is valued at $500,000 at over, then you would have a $1,250 fee as of 2017.

Legal fees are based solely on the attorney you hire. There are no set costs in the state of New York; therefore, you can work out the costs with your attorney. Most attorneys offer three types of charges for probate:

  • Flat rate
  • Hourly
  • Percentage

The more complex the case, the higher the price will be. If you have a relatively simple probate case, your attorney is more likely to charge a flat fee.

Fact 2: You Need a Copy of the Death Certificate to File

You must have a death certificate to file your loved ones will with the state’s Surrogate Court. To get this, you can get a certified copy from the Office of Vital Records – if your loved one died in New York City. If the death was outside of the city, but still within the state, you can request one from the New York State Department of Health. For deaths outside of the city, you must contact that state’s vital records office and request a copy.

Fact 3: Only the Executor Can File for Probate

To get the process started, the executor must take the original will and a certified copy of the death certificate, then file a probate petition along with other documents to the Surrogate’s Court. The probate court the executor files with must be in the county where the deceased’s primary residence was located.

Some areas accept filings over the web through the NYSCEF portal (New York State Courts Electronic Filing System).

Fact 4: You Don’t Need an Attorney, but Should Hire One

Realize that you are not required to hire an attorney. If you feel confident doing probate yourself, the courts will allow you to do so. However, you may find it easier to hire an attorney to handle probate matters, because often complications arise during probate and you need an advocate to find interested parties, handle a will contest, and complete the paperwork.

Fact 5: Executors Must Notify Immediate Family of the Death

Typically, the executor is required to notify all immediate family members of the death and probate, even if they are not named in the will. A formal notice of the probate proceeding must be given to anyone named in the will and to all heirs. Heirs at law are the deceased’s surviving spouse, children, and grandchildren, and must receive a notification.

Fact 6: Notice to Creditors

Before an estate can go through probate, the courts require that the executor search for all files and find any outstanding loans or unpaid obligations for the deceased. Even if there are no creditors, the executor is required to file a Notice to Creditors in the local newspaper, then allow adequate time for creditors to apply and make claims against the estate.

Fact 7: Not all Property Goes through Probate

Many are surprised to find out that not all property goes through probate. Any property that is titled in a revocable living trust will skip over probate entirely. Also, accounts with beneficiary designations and any real estate subject to a transfer-on-death can skip probate. Lastly, a property that is owned through joint tenancy passes automatically to the other spouse without probate.

Fact 8: Probate is Necessary, but Can be Avoided

There are ways to avoid probate entirely, especially if your loved one has created a trust and transferred all assets into that trust.

Regardless, the process of probate is there to ensure that all property and assets are transferred to the correct beneficiaries. While it might seem like a hassle, it is the state’s way of ensuring that the deceased’s final wishes are carried out and that no beneficiary loses their inheritance.

Fact 9: Probate Can Take Longer than Expected

While the Surrogate’s Court of New York estimates probate to last a few weeks, they are not considering how some estates are more complicated than others. In fact, most estates will find that probate takes several months even to begin and a few more months to complete itself, even without complications. When there are contests and other disputes, the process could easily take over one year to complete – if not longer.

Fact 10: Probate is Public Record

Family information is not private when it comes to probate. Instead, personal information, including identities of beneficiaries and the executor is a matter of public record. Also, the liabilities and assets of the estate are published in public records and accessible by those who request them from the clerk’s office.

Speak with an Attorney about Your Probate Process

If you are the executor of an estate or you want to help your loved ones avoid the hassles of probate, speak with an estate planning attorney today. The Law Offices of Andrew M. Lamkin, P.C. can help you with your estate planning needs and when you need an attorney to help you through probate.

To explore your options, speak with an attorney by calling 516-605-0625.  You may also request a free, no-obligation consultation by messaging our team online.

Protect Your Legacy With Three Essential Estate Planning Tools

An estate consists of the personal or real property, possessions, and financial holdings that a person has accumulated during his or her lifetime. Estates do not apply only to the wealthy. One’s estate simply consists of the personal property owned by that individual, regardless of the amount of property. An estate can consist of a modest home and vehicle, bank accounts, business assets, land or any type of property that has monetary value. Most people want to ensure that property remaining after death passes to the heirs of their choosing, and that as little as possible becomes absorbed by estate taxes, fees, and mismanagement. The following are three essential tools for making that happen.

The Last Will and Testament

When a Last Will and Testament (will) is prepared, it contains instructions pertaining to the disbursement of assets by the executor. The will should name who will administer the estate (executor) and should include an alternate. Wills properly prepared by an estate planner will be legal in the state in which they were written and legally binding in a court of law. For families with young children, young people establishing careers, and people with moderate incomes, a will provides sufficient protection. For people with larger holdings and multiple heirs a trust may be more appropriate.


A trust does not replace a Last Will and Testament. The difference in a will and a trust is that the guidelines set out in the trust can take immediate effect while the person is still living. The trustee of the trust has the authority to handle the assets as outlined and this authority remains until all of the assets are distributed. A successor trustee serves in the event of the death of the original trustee so that the directives under the trust are still enforced. Because trusts are private, they are not public record. The trustee has full discretionary control. A properly executed trust can save families significant fees expense and provide peace of mind, as the assets are not open to public consumption. It is important to remember to title all assets possible into the name of the trust so that the disbursements go through it as opposed to an estate when the executor dies. Any assets left outside of the trust may be subject to probate.


Insurance is one of the most simple and cost effective ways to protect assets. Life insurance names certain beneficiaries that will have direct disbursement at the time of the loved one’s death. These funds do not pass through the probate estate unless the estate is a beneficiary. Life insurance proceeds protect assets by giving the remaining family members a means to pay for burial expenses, unexpected costs, and current living expenses.

The previous estate planning tools will protect assets gained by diligence and achievement, making sure that hard-earned legacies remain protected for generations to come.


Primary Goals of Small Business Tax Planning

As any experienced small business owner already knows, the primary goal of small business tax planning is to make the most the money the business is already generating. How an accountant achieves that goal depends on the type of business, the source of its income, and a myriad of other factors.

Staying Out of Trouble

Generally speaking, effective tax planning aims to eliminate or considerably reduce the amount of federal, state, or local taxes your business owes by planning when and how to conduct day to day business activities. Unfortunately, while it is perfectly legal to plan business activities in an effort to avoid certain taxes, it isn’t legal to carry out business in a way that evades taxes.

The number one goal in small business tax planning, therefore, becomes staying out of trouble. That’s where tax professionals such as accountants and attorneys come in. Doing your own tax planning without the benefit of an experienced professional is like skating on thin ice; a wrong move could prove dangerous.

Avoiding Common Mistakes

While many small business owners completely disregard taxes until the time comes to file a return, even those who participate in tax planning are prone to making mistakes that cost them in the long run.

One of the biggest mistakes small business owners make is missing out on available tax credits, loopholes, and deductions that could lower their tax burden and keep more money in their pocket. Another common mistake is waiting until the last minute to consult with a tax professional. Good small business tax advice can help steer an entrepreneur in the right direction before taxes come due, giving them more time to take steps that will lower their tax burden in the first place.

Putting Business Income to Better Use

Money that otherwise might have been paid in taxes could be put to better use in the form of valuable business-related deductions. For example, a small trucking company could significantly lower its taxable income by investing in a new truck or a better communications system and writing it off at the end of the quarter. In turn, that new piece of equipment could be used to generate more income, which could then be applied to more equipment. Using tax planning in this way could substantially contribute to your company’s growth.