June 16, 2019










What Assets Disqualify You for Medicaid?

Medicaid’s application process is extensive, and it includes a detailed review of your assets. Certain assets can disqualify you from this federal and state program. But with the right planning, you might still qualify if you know which assets are countable and which are not.

Medicaid and Medicare of often used synonymously, but these are different programs entirely.

While both pay for medical and health care-related costs, Medicare is age-based; not income or asset-based. The only time income plays a role in Medicare is determining your premiums for certain coverage options. Instead, you can receive Medicare benefits if you are over 65 years, or if you have a qualifying disability. Medicaid, on the other hand, works more like public assistance; therefore, the program scrutinizes everything from income to assets to financial resources to determine if you qualify.

You are required to provide documentation when you apply for Medicaid, and omitting assets not only will guarantee that you are excluded, but it could also constitute fraud.

The Medicaid income assessment is straightforward, and it includes any income like Social Security, retirement, or actual wages from a job. However, the asset portion of qualifying is more complicated, and sometimes you might think that an asset doesn’t count when it does – affecting your chances of approval.

What Assets Count for Medicaid?

Assets eligible for Medicaid consideration include:

  • Checking and Savings Accounts – Any checking or savings account with your name or your spouse’s name count as an asset. Therefore, having a high amount of funds in those accounts could disqualify you. This includes long-term savings accounts or investments like CDs.
  • Stocks and Bonds – Any investment accounts you have, including bonds, stocks, or funds, count toward your eligibility. These are considered assets that you can withdraw and pay for medical expenses and long-term care. Therefore, the state will assume you have enough funds to pay for your care.
  • Real Estate Other Than Your Primary Residence – Your primary residence does not count. But if you own secondary property such as a rental home, vacation property, or even a co-owned property like a timeshare, these count.
  • Extra Cars – Your primary vehicle will not count, but any additional cars and recreational vehicles do count as assets.
  • Life Insurance – The cash value of a life insurance policy also counts. If the amount exceeds $1,500, then any excess is considered an asset to your estate and will be considered in your application.
  • Cash – While you can possess some cash, too much may disqualify you. For example, if you have $50,000 in a checking account, it would most likely disqualify you unless you could prove those funds were dedicated to something specific.

What Assets Do Not Count for Medicaid?

Medicaid doesn’t count certain assets that go toward your living, and those not considered liquid.

Some assets that are not counted include:

  • Your Primary Residence – Luckily, your primary residence doesn’t count against you for Medicaid. Even if you own your home in full, it is your home and primary residence where you live 90% of the time. Therefore, you do not have to worry about it disqualifying you. There are limits to your home equity, however.
  • Personal Property – Any personal property you own, especially that inside your primary residence, does not count.
  • Life Insurance – Any life insurance with a face value under $1,500 does not count.
  • Burial Expense Funds – You can still set aside funds for burial and funeral expenses, up to $1,500, without it counting against you when you apply.

Home Equity

When Medicaid looks at your home, regardless of the value, it is exempt. However, it will affect whether you get payments for long-term care and nursing homes from Medicaid, especially if the equity of your home exceeds a specific threshold. The equity of your home, which is the fair market value minus what you owe, does affect Medicaid qualifications.

What about Income?

Any income you receive from pensions, retirement accounts, and Social Security will count in your application. You can, however, keep up to $800 per month of your income, along with any costs associated with healthcare premiums, if you qualify for Community Based Medicaid. Any extra income, referred to as spenddown, must be used on your healthcare before Medicaid pays for the excess.

Your Options for Managing Assets When Applying for Medicaid Programs

Because your assets do play a heavy role in determining eligibility for Medicaid programs, you may want to look for other ways to protect family assets rather than selling or disposing of them to qualify for the healthcare coverage you need.

One of the best options is a Pooled Income Trust. A Pooled Income Trust is a unique trust that allows you to become eligible for Medicaid programs while still preserving your assets. Not everyone requires this type of trust, but when your assets exceed the qualifications for Medicaid, you may want to use a Pooled Income Trust.

How It Works

Pooled Income Trusts are allowed by federal law. You protect your public benefits, but you also receive pooled funds for expenses. You can then use your Pooled Income Trust for multiple expenses, such as:

  • Living costs, including food, clothing, and shelter
  • Housing costs, including rent or utilities
  • Private nursing care
  • Assisted living care
  • Medical procedures not covered by your government insurance plan
  • Entertainment
  • Travel
  • Attorney fees

Under the current laws in New York, your monthly income excess must be spent down to qualify for Medicaid, which is where your trust comes in. When you deposit into the Pooled Income Trust, you are no longer subjected to the ordinary rules for extra income and now you can protect the income benefit without selling your assets.

Speak with an Estate Planning Attorney to See How You Can Plan for Long-Term Care and More

If you are worried about how you will afford long-term care or how you will preserve assets while using government insurance, then you need to meet with an estate planning attorney.

Andrew M. Lamkin, P.C., has helped countless clients just like you figure out how to manage their assets, create estate plans, and ensure they can still qualify for Medicaid without throwing away everything they have earned.

Schedule your free consultation to discuss your Medicaid planning by calling us, or you can request more information about estate planning online.

Do I Really Need to Include Social Media in an Estate Plan?

Consider how much information you keep on your social media profile before dismissing the idea of including it as part of your estate. Adding it to your estate plan could ensure that the right family member controls those photos, fond memories, and even videos that would be lost forever if no one inherits them.

If you are active on social media, including LinkedIn, Facebook, Twitter, or another social media website, what will happen to all of your digital assets on those sites if you were to pass away? Can anyone access your profiles to shut them down? What about download videos, photographs, or even status updates?

You might assume family members can email customer support, letting them know that you have passed and request they shut down your profile. Unfortunately, it doesn’t work that way. Not only will the company not shut down the profile, but your loved ones will have no access and no way to access your profiles. Likewise, the companies that do provide access to family members put a clock on it. In some cases, they give you only so many days or weeks to remove all the information before they automatically shut it down and everything is erased from their servers permanently.

Adding Social Media to Your Estate Plan Is Like Most Assets

You would be surprised to find out how easy it is to add digital assets, especially social media, into your estate plan. It works like other assets, which means you need to inventory them, name a beneficiary for those assets, make sure they have access, and then let them know how you wish for them to handle their inherited digital asset.

Start By Making a List of All Social Media Accounts

First, list all of your social media accounts, including those you are barely active on. If you do not wish to include one because of limited activity, consider shutting it down permanently now rather than leaving it out of your estate plan.

For those that are active and that you want a family member to inherit, write down the website address or social media name. Then, write down the username, password, and email associated with your account.

Social media accounts include:

  • Facebook
  • Twitter
  • LinkedIn
  • YouTube
  • Twitch
  • Instagram
  • Flickr

Name Your Beneficiary

You want to name someone who is internet savvy. Giving your digital assets to someone who has no familiarity with social media or how to use it just puts more work on their shoulders. Also, they may not know how to close out a profile or download the items on that profile. Therefore, having a family member inherit your profiles, who at least is social media savvy, is best.

Decide whom you want as the primary beneficiary of those accounts. Facebook recently added its legacy option, which allows you to name a successor – including another Facebook user. Make sure the legacy user is also the person you name in your estate plan.

Provide Your Instructions

Now you need to tell your beneficiary what they will do with the newly inherited social media profiles. Some options include:

  • Downloading and storing all images, videos, and memories. You may not wish for your profile to remain active, but before it is taken down, you want all memories removed from that site and saved elsewhere. Tell your beneficiary what you want them to do with the photos, videos, and other memories on your profile.
  • Create a legacy or “in memory of” page. Some family members ask that their page remain active, but change to an “in memory of” or legacy page. This allows friends and family members to go back, look at times they spent with you, and remain active with others who were part of your social media network.
  • Closing them down entirely. You may not want your profile to stay online. After all, leaving a profile up as a legacy page can increase the risk for fraud and identity theft (individuals are searching the internet for legacy social media profiles). Therefore, you can request that your beneficiary remove the pages entirely.

Do Not Forget Other Digital Assets

While you are adding your social media, do not forget the other digital assets you may have out there. These are treasures to family members, and sometimes they provide insight into your daily life that loved ones never even knew about.

Some other digital assets you should include in your estate plan are:

  • Online Photo Storage Sites
  • Online Document Storage Sites (like Box or Dropbox)
  • Your Email Accounts
  • Your Personal or Professional Blog
  • Ancestry Accounts and Website Profiles
  • Online Dating Profiles
  • Online Calendars and Booking Services
  • Memberships and Accounts Online

Speak with an Attorney about Adding Digital Assets to Your Estate Plan

If you already have an estate plan, creating an addition for your digital assets is simple. Meet with your estate planning attorney and let them know that you would like to include your digital assets. They may have a unique way for you to track passwords and information about those sites so that they can give them to your beneficiaries later on.

If you do not have an estate plan, now is the perfect time to start. In that estate plan, you can include your regular and digital assets. Digital assets, especially in today’s highly digitized world, are treasures to family members. They allow them to interact, see you, and even remember you years later.

Whether you have an existing plan or you would like to create a new estate plan, it is never too late or early to start. Meet with a local estate planning attorney that understands the value of digital assets just as much as physical ones. Andrew M. Lamkin, P.C., can help you with your estate planning needs.

Get started with a free consultation about your estate planning needs by calling us, or you can request more information by filling out our online contact form.

How Do You Obtain a Letter of Testamentary?

Getting a letter of testamentary is what you need to proceed in probate court. You will need to file a death certificate and a will with the county, then your official form requesting your letter.

As the executor of an estate, you must take care of all financial tasks before you can officially close out an estate and fulfill your duties. Just some of the major tasks you must tackle include paying off all debts from the estate, gathering assets, distributing assets as the will outlines, and notifying beneficiaries.

Before you can do any of these tasks, you need a letter of testamentary, which is a document you get from the probate court. It provides you with the proof that you are the executor for the estate, and it provides you with the authority you need to do your tasks as the executor.

What Is a Letter of Administration – Do I Need That, Too?

Some probate courts will refer to these letters as the letter of administration. This is a letter that is issued by probate court when an official executor is not named in the will, or there is no will and the estate is intestacy. In this case, the court decides who is qualified to handle the executor duties and will issue a letter of administration to that party.

Both documents give the executor the power to handle all estate matters, but the administration letter only allows the executor to distribute assets that abide by the laws of intestacy, which are different in New York than in other states.

How Do You Get a Letter of Testamentary?

If you are named as the executor and there is a will, then you will obtain the testamentary version of the letter. To do so, you will go to the county probate court.

You need a copy of the will that names you as the executor, a copy of the death certificate, and the court required letters of testamentary forms along with your application for the letter. You may also need to bring along identifying information to prove you are, in fact, the person named in that will.

After you have completed the application, you will file it with the court and wait for your hearing date. The hearing is usually brief, and the probate court judge will review the documents, verify that you are the executor, and also make sure you can carry out your executor duties. Usually, you must be mentally competent, which is the only requirement.

The court then issues you the letter of testamentary, and you will want to obtain certified copies. Most financial institutions will require a certified copy of the letter to keep for their records. Therefore, get one for each financial institution where you will need to remove or access assets.

Letters of Testamentary: Can They Expire?

These letters give you the legal authority to manage a person’s financial assets. Therefore, the court will require that you do so promptly and in accordance with the will. You must administer all financial tasks promptly, but the letters themselves do not expire. However, if you purposely fail to perform your fiduciary duty or the courts feel that you are taking longer than necessary to handle the deceased’s estate, you may have your letter revoked.

Once You Have the Letter, What Should You Do Next?

Now that you have the letter, you must follow through with your duties. Just some of those include:

Locating All Assets

The estate plan should have a list of assets, but it is your job to go to each financial institution, using your letter of testamentary, so that you can access those assets. You may need to have assets valuated if it has been too long.

Finding All Debts Due

Before you can distribute assets, you will need to use any funds from bank accounts to pay any outstanding debts first. You may also have to sell any assets or sell stocks so that you can satisfy those debts as well.

File Taxes

You are required to file the final tax return for the estate as well. And if you are working with an estate attorney, they can help you with this task.

Distribute Assets

The will should discuss how the assets will be distributed and which beneficiaries will receive what physical assets or amount of funds. You are required to follow the will, but there may be instances where you have to use your own judgment if the will is not specific. Other times, someone may leave requests such as leaving 25% of their estate to one child. After you have satisfied debts, then you would determine what is 25% of that remaining estate value.

It Is Best to Hire an Attorney When Administering an Estate

Trying to work your way through the intricacies of probate court, let alone your duties administering an estate, can be daunting. If you are unsure of where to start, consider hiring an estate attorney to assist you.

An attorney can help you with your executor duties, including filing the correct forms, working on estate taxes, and ensuring all assets are distributed correctly.

If you are creating an estate plan, consider setting aside funds so that you can pay for an attorney to help assist with the administration portion of your estate. Having an attorney is incredibly valuable. They will help you with each step and ensure you are following all state laws regarding how you probate an estate.

To get started, speak with an estate planning attorney here in New York by contacting the Law Office of Andrew M. Lamkin, P.C. You can schedule a free, no obligation case evaluation now by calling the office. You can also request more information about assistance with your executor duties by completing an online contact form.

How Do I Protect My Assets in a Second Marriage?

Whether you are getting married now or you are considering it, you must set up protections for your assets in your second marriage. Otherwise, you could have assets go to the wrong family members, which only creates more issues for the loved ones you leave behind.

First of all, even if you have not officially tied the knot, you need to speak with an estate planning attorney. Also, you do not need a previous estate plan in place. And if you do not have one, now is the perfect time to start one – especially as you enter into a second marriage.

As you plan out your nuptials, here are a few things you need to do as part of your due diligence:

Review Past Estate Plans with Previous Spouses (If Any)

If you do have a past estate plan with a previous spouse, then you must review your wills, trusts, and any beneficiary designations (such as those tied to your insurance or retirement accounts).  

Now, you must also review any divorce and child custody agreements you have and how they play a role in your past estate plan. Some divorce plans may have obligations where you must keep an ex-spouse as a beneficiary or give them a certain percentage of your estate (even if you were to remarry). If that is the case, you must consider it when creating a new plan involving your new spouse.

Also, you may not be able to update all beneficiary designations if you already have a previous spouse locked in from a divorce agreement.

Start Getting the Right Documents in Order

Next, you need to assess your long-term plans. Then, you will want to get a few documents in order to protect your assets in your second marriage and provide for your new spouse (and any children you may have) if you were to pass away.

Create a Prenuptial Agreement

You may want to consider having a prenuptial agreement in place. Not only will this protect your interests, but any assets that your spouse brings into the marriage can also have protections, too. You will want to discuss these financial issues ahead of time and create a plan with your spouse that you both can agree on.

Keep Your Assets before Marriage Separate

You both are likely to have some assets, and you will bring those into your marriage. Make sure there is a division between your assets and their assets before marriage. You can do so by keeping accounts separate for those pre-marital assets. Also, keep records of any assets that you had before the new marriage and any that may apply to a past marriage.

Set Up a Trust for Your Assets

You can also create a trust so that you can protect premarital assets from the second marriage. This also can allow you to protect any assets for children from a prior marriage who would benefit fully from those assets you had in your first marriage.

Asset protection trusts should be done with an estate planning attorney’s help, and you will want to make sure creditor and spousal protections are in place. You can also set up the trust in your child’s name and have them be the beneficiary of those assets.

Revise Your Will

Now is when you will need to look at your existing will and make changes. If your will currently lists your first spouse, you need to change it over to your new spouse’s name. You will also want to include any other beneficiaries, including children that you may have as part of your second marriage. Likewise, you will want to rename those who can make financial and healthcare decisions on your behalf if you are to become incapacitated.

Make sure you revisit your will every year after the new wedding, as you will want to make sure any new assets, children, or changes are reflected in your updated will.

Do Not Forget about Retirement Accounts

You will want to make sure that you change any beneficiary designations on your retirement accounts to either a child whom you want to inherit the funds or your new spouse. Most likely, your old spouse is named as the beneficiary and these designations outrank any will or estate plan you have in place. Therefore, you must go and update all retirement, investment, and even bank accounts where you have a beneficiary designation named specifically. Otherwise, the courts will honor the name that is on the document rather than the party in your estate plan.

Review Your Social Security Benefits

You may have social security benefits from an ex-spouse’s work record, which will change upon remarriage. Therefore, you need an attorney to review these and see how your new marriage may impact the benefits.

Think of the Tax Consequences

Estate planning with a second or even third marriage will require you to balance your assets and the tax consequences of having those assets. You may want to look to see if you have any gift or estate tax exclusions that you can use, and you will need to consult with an attorney if you have a high-value estate subject to estate taxes.

Every state is different; therefore, you want an estate attorney who understands how estate taxes will apply here in New York, including any assets you may have out of the state.

Do You Need an Attorney?

Yes, you should always consider hiring an attorney when it comes to a second marriage and protecting your assets. Second marriages make estate planning complicated, and if you have a divorce agreement from a previous marriage, it could complicate things further. Having an experienced, trained eye review your past agreements and make sure that everything is up to par with the latest legal requirements is critical.

Speak with an estate planning attorney to help protect your assets for your second marriage by contacting the Law Office of Andrew M. Lamkin, P.C., today. You can call our office or contact us online for more information.

When Will My Case Finish Probate?

Probate’s length depends on the complexity of the case and whether you have anyone contesting. However, you can expect anywhere from six months to up to two years.

Likewise, you could have such a straightforward case that you are done, and the case is completed in two months – however, that is rare.

One of the first questions our clients ask us is how long they should expect probate to take. While you want it quick, and preferably painless, it is all based on the executor, size of the estate, creditors, and a few other factors.

Factors That Can Affect Your Probate Case Timeline

To help you better estimate and understand why some cases take longer than others, we need to discuss the three primary items: executor naming, settling, and closing.

First, the Executor Must Take over the Estate

The first step of probate is for an executor to take over and get started on their administrative duties. This takes anywhere from two to six months, although, we usually see this only last three months.

The letters of testamentary take time for an executor to receive, and then they must receive their court appointment. Time extends in this phase of probate when the information is not available, or court documents were not completed and submitted to the court on time for processing. Processing is a four to eight-week process alone. Therefore, when an executor is ill-prepared, it does take longer.

Once these letters are approved, then the executor is named official and can start taking over other tasks.

A few ways to speed this up would be to ensure all family members sign and have documents notarized quickly. Unfortunately, not all loved ones are inclined to help or even do so promptly. Therefore, most of the delays during this stage come from finding family members and getting them to sign necessary documents.

Likewise, court delays can happen – especially if the court is overrun with cases that month. The clerk may also go on vacation, or they have a docket too full to get to your paperwork right away. If your paperwork is not processed, you should follow up with it and see if you can expedite it or if there is a hold that you need to address.

Third Party Hearings

Some times, a third party hearing is required, such as a public administrator, to look over the estate. When a third party gets involved and the court appoints them, it can dramatically delay your probate case.

Second, the Estate Must Settle

Now, you are onto the second phase. This portion can take anywhere from seven months to as much as three years.

The settlement is by far the most complicated process of an estate. The executor is now administrating, and that means that they will collect all estate assets listed in the will, organize outstanding debts, pay any debts, file final tax returns, and possibly value any assets of the estate to ensure they are accurate.

Potential Hold-Ups at This Phase

You have a few reasons that this phase can take longer than you would expect, including:

  • Institutions being Slow to Respond: Financial institutions are not quick to respond to requests for estate documents, including banks, lenders, and insurance companies. Therefore, the paperwork and lead times do vary.
  • Asset Locations and Issues: Some assets are difficult to share or place a value on them, including shares for private companies or real estate that currently has a tenant refusing to move out so that you can sell the home for liquidation.
  • Taxes: Estate taxes are complicated, and when a return is required, the process takes longer for the executor to compile the information and work with an accountant and attorney to get it all done.

Closing the Estate – the Final Phase

Now you are ready to close out the estate. But this is multiple steps in a single phase, and not something that goes quickly. In fact, it can take just 30 days or 12 months.

More documents are required in the closing phase, including all court forms that are distributed to beneficiaries to ensure they are given all necessary information.

The heirs must review any financial reports, and then they have a chance to contest the information. If a contest occurs, this process will take longer because it will require a court hearing just to address anything the heir contested.

Also, if anyone contests the validity of the will itself, you will notice a considerable delay. Not only do these take time, but they also can quickly drain resources tied to the estate – which may affect what beneficiaries receive in the end.

Speed Up the Process or Skip It Entirely

If you are creating a will but you want to save your family the hassles of probate, then you may consider a trust instead. Trusts allow you and your loved ones to bypass the probate phase, and you can distribute assets through the trust without having to wait years to complete the process.

Likewise, if you want to ensure your loved ones have a smooth probate process (without using a trust), then work with a qualified estate attorney who knows the New York probate lead times, common issues, and can draft a will that reduces the likelihood of errors/contests and other hold-ups.

If you are an executor and you find yourself facing multiple contests, beneficiaries unwilling to provide the information you need, and other stalls, you may want an attorney to assist you.

Andrew M. Lamkin, P.C., has helped countless families create their estate plan, including setting up trusts, drafting wills that follow all laws and leave out any vague statements (a common cause for contests), and helping executors successfully close out an estate.

To explore your options, speak with him today for a free case evaluation or request more information online about his estate planning, wills, trusts, and probate services.

When Does Medicare Cover Nursing Home Costs?

When and how long Medicare covers nursing home costs will vary, but understanding how your benefits work and when they kick in is critical when you require nursing home care.

Most seniors will reach a point where they need nursing home or long-term care. Sometimes, it is only after an illness or accident, while other times the situation is permanent. If you are receiving Medicare or you are eligible to apply, you may assume that your costs are 100 percent covered with Medicare benefits.

This assumption, unfortunately, is incorrect.

Medicare does not cover a lot of traditional healthcare costs, and nursing homes are one of the costs.

However, when your nursing home or skilled nursing facility care is medically necessary, then you may receive some coverage.

When Does Medicare Cover Nursing Home Stays for Plainview Residents?

Medicare’s coverage of a long-term nursing facility is incredibly limited. Under the traditional Medicare plan, you will only receive limited care coverage for skilled nursing home facilities. The care only applies while it is a medical necessity. And to prove it is medically necessary, your physician would need to fill out the appropriate forms indicating such.

Up to 100 Days of Skilled Nursing Care with Medicare

Medicare Part A provides up to 100 days of skilled nursing care after an illness or injury. However, the requirements for utilizing this coverage are incredibly strict, including:

  1. Enter a Nursing Home within 30 Days of a Hospital Admission – For Medicare coverage, you must have recently been in the hospital and your admission into the nursing home cannot be more than 30 days after the admission. Likewise, your hospitalization must last a minimum of three days.
  2. Similar Care as the Hospital – The care you receive at the nursing home must be identical to the care you would have received if you were staying in the hospital; therefore, it must be required to treat a medical condition.
  3. Skilled Nursing Care Is Required – You must need an experienced level of nursing care, and the facility must have skilled registered nurses that treat you in-house. A physician must have placed orders, and a physician must supervise you during your treatment period. Likewise, a licensed practical nurse or registered nurse must carry out those orders and do so daily to qualify. Not many nursing homes have this level of skilled nursing care.

Once the nursing home reports to Medicare that you no longer need the skilled nursing home level of care, Medicare will stop payments.

What Other Options Do You Have to Pay for Nursing Home Coverage?

Nursing home costs are on the rise, and while you might not have Medicare to pay for your nursing home stay, you are not without options either.

Long-term care insurance is another option, but it does have a hefty premium. That being said, it will make up for the costs of nursing home stays, which will exceed the premium for 24-7 nursing home care.

Medicaid Is Another Option

One option that you might not have thought about is Medicaid. Medicaid works as long as you do not have many assets, and your income is relatively low (to none, if you are retired). Your Social Security income and pension income does fall under consideration when applying for Medicaid coverage.

Under a Medicaid plan, you can receive coverage for a long-term nursing home care or assisted living, but the rules depend on multiple factors. Federal law requires that all states carry a Medicaid program, but each state has rules that they use to govern who qualifies and what they pay for using these Medicaid benefits.

Medicaid in New York will pay for nursing homes and assisted living care, which is a relief for those facing the outrageous costs of nursing homes today. However, you must meet the income limits and be either 65 years and older, disabled, or blind to receive Medicaid coverage for your nursing home.

Also, your income cannot exceed the state threshold, which was $842 or less for singles and $1,233 per month for couples as of 2018.

How an Estate Planning Attorney Can Help

Medicaid is a joint run program by the federal government and the state of New York. To qualify for nursing home care, you first must qualify for Medicaid coverage.

Certain items that the Department of Social Services considers when qualifying applicants for Medicaid coverage in New York include:

  • Need of Care: Do you have a financial need and medical necessity that qualifies you for the level of care you are seeking?
  • Your Income: Naturally, your income, as well as your spouse’s income (when applicable) is considered. You cannot exceed the state’s maximum threshold. All income sources are considered in New York, including your distributions from retirement funds, pension payments, investments, rental properties, and Social Security benefits.
  • Your Resources: You might not have a large amount of money as income, but you may have considerable assets. When your assets are high enough, the state will deny your Medicaid application. Assets include everything from the value of your home to investments to insurance plans.

While the process of qualifying for Medicaid is complicated, an estate planning attorney in the state can help you by going over your options, assessing your eligibility, and working to determine how to protect your assets so that you can qualify for the care you need without having to liquidate your family’s estate in the process.

Speak with an Estate Planning Attorney Today

If you are worried about paying for nursing home expenses in the future, or if you would like to have a professional help you draft an estate plan that protects you when the time for nursing home care comes around, speak with Andrew M. Lamkin, P.C., today.

He can assist you with protecting your assets, looking over your long-term care options, and ensuring you qualify for Medicaid later.

Schedule a free case consultation now by calling us or requesting more information online.

A Guide to Picking Nursing Homes and How to Pay for Them

Whether you are looking for nursing homes for yourself, a spouse, or an aging loved one, it is imperative that you do your research first.

Nursing homes are plentiful, but not all of them offer the same care that you would expect. By understanding the basics to include in your search, you can narrow down the list of choices and walk away with the peace of mind knowing you picked the right nursing home for your loved one.

How to Pick a Nursing Home in Plainview, NY

For starters, you should always tour a nursing home. After your initial tour, go back and do a second one to see if anything has changed. During both visits, bring along this checklist and consider the following:

Smells

A nursing home should not have any unusual smells present, especially stale smells or that of urine. You want a nursing home that is clean, sanitary, and takes their resident’s comforts and health seriously.

However, nursing homes will have different smells. There are patients on medications and diet restrictions that can lead to gas. Also, as people age, they do lose control of their bladder and bowels. Therefore, it is important to realize that you might have a faint odor on one visit, but not on another. If the room you are considering for your loved one is overbearing with a smell, then you should be concerned.

Listen for Sounds

You should walk the halls during your tour and just listen. Do you hear anyone moaning or crying? Do you hear residents calling for help? Also, see how staff members address residents, their tone used when they speak to them, and how residents react to staff members.

How Is the Staff

The staff at the nursing home is integral in a nursing home resident’s care; therefore, you should give them the most scrutiny. A few things to watch with the staff during your visit:

  • How helpful they are with other residents. Do staff members seem attentive to residents? Are they assisting them with food, requests, and making them comfortable?
  • The attitude of the staff toward residents and you as a visitor. See how the staff react to your questions, how they talk to residents and other team members, and get an impression of their personality. Are they warm, friendly, and willing to help you? Do they seem overworked, tired, and unprofessional? When staff members are annoyed at answering your questions, that should be a red flag. If they are annoyed at answering questions about their job and the care they provide, how will they be when a client needs assistance?
  • How many staff members do you see on duty? While you are there, both times, count how many staff members you see and then ask about how many residents are in the nursing home currently. You want a good ratio of staff to residents because, otherwise, residents will not get the care and attention that they deserve.

Ask About Activities, Day-to-Day Routines, and Social Gatherings

One of the most important aspects of a nursing home is to provide a resident with social activities, exercise to keep them healthy, and a routine that ensures they receive the care they need. Ask about how nursing home residents will spend their days, if there are daily activities or social hours, and any special activities that happen throughout the month to encourage socialization. You should see a daily calendar where a resident has something to participate in, and it should be published where it is easily viewed.

Ask How the Home Handles Falls and Other Injuries

Falls can happen in nursing homes because, as residents age, they may lose their ability to hold their balance, they can trip and fall more easily, and these can lead to severe injuries. You want to know the nursing home’s policy and procedure for resident accidents and what they do to ensure that the resident receives proper care and that the accident is prevented in the future.

Paying for Nursing Home Care

Paying for a nursing home is one of the biggest concerns on residents’ minds. You know that you need the nursing home care, but what if your savings are too low? Perhaps you do not have a trust, or you have no income stream. Luckily, there are ways to pay for a nursing home.

One of the most popular methods is Medicare. Medicare is a federal insurance benefit that pays for a number of days in a nursing home. You also have Medicare Advantage Plans that do not require hospitalization before entering a skilled nursing home facility. Also, you may be able to choose a nursing home that is close by, as long as it is within the network.

Medicaid is another option for nursing home care. When you do not have the assets or income to pay for the nursing home care you need, you can use this federal benefit. Medicaid is a federal government assistance program that is run by each state.

Planning for Long-Term Care? Meet with an Estate Planning Attorney

One of the best ways to plan for long-term care in the future is to do so with a well-drafted estate plan. You can work out a plan to cover the costs of a potential nursing home stay or in-home nursing home care. Also, you can explore your options for Medicaid and go through a Medicaid plan, which ensures that your assets are adequately distributed so that you qualify for federal assistance.

In New York, you would need Institutional Medicaid. To plan for this, you must ensure your assets are protected and that you reduce any penalty periods that would prevent you from getting Medicaid benefits.

To get started on your long-term care plan or to learn more about Medicaid planning, contact the Law Office of Andrew M. Lamkin, P.C. We can meet with you for a free consultation and discuss your long-term care concerns along with helping devise an estate plan.

Call 516-605-0625 to schedule an appointment or contact us online with your questions.

Getting Married This Month? Now Is the Time to Start Your Estate Plan

One of the first things you and your soon-to-be spouse think of after getting engaged is planning the wedding and how your future will be with one another. Most likely, the last thing on your mind is your estate plan.

However, an estate plan is critical when a significant life change happens – such as getting married. Whether you have one already or you have none, there is no better time to start planning your future by creating an estate plan.

Should a Plainview Couple Draft a Will Before or after They Get Married?

The most prominent question couples ask is when they should start creating their estate plan. If you plan to get married, you need to review the process. You will also want to update areas of your will or start thinking about these areas for your new will, including your power of attorney, advance directive for healthcare, and beneficiaries.

You can create an estate plan before or after the wedding. Some couples prefer to handle estate plans after nuptials, while others want to finish theirs before the big day so that it is one less thing to work on.

If you do create the estate plan before officially saying “I do,” you should have a provision that states your intent that the marriage does not revoke the will.

What Should You Update on a Will after You Are Married?

One of the biggest things you must do is update your beneficiaries. Not only should you do this on your estate plan, but also any death benefit designations you made on your retirement account, bank accounts, and investment accounts. These override any beneficiaries in your will. Therefore, if you have a parent or sibling listed as your beneficiary, your spouse would not receive the benefit.

Have a Detailed Conversation

You also need an in-depth conversation about what you want with each other, how you want to split assets among your beneficiaries, and who should make the big decisions if one were to become incapacitated. After all, you are now blending families, and your list of potential beneficiaries (until you have children) will differ from what you would have considered when you were single.

You both should also consider what would happen if you both were to pass away and if you want to select secondary beneficiaries to your estate.

Update Your Will or Create a New One

If neither of you has an estate plan, now is the time to create one. If you or your future spouse has an estate plan, you will need to update it to reflect the marriage and any changes. Talk about how you want assets split if something were to happen to one or both of you.

While the subject might bring a negative light to your happiest day, it is something you still need to discuss. Think of the positive aspect of having a well-drafted estate plan rather than the negatives. You should consider it a piece of reassurance that your loved ones will be taken care of if something were to happen.

Do Not Forget Your Power of Attorney

You must make sure your power of attorney and advance medical directive is updated; otherwise, your spouse may not have the input or power that you intended for them to have.

Without a durable power of attorney, your spouse cannot handle financial affairs, including managing accounts that are in your name or accessing funds.

Likewise, you will want to have an advance directive that names a party responsible for your healthcare decisions when you become incapacitated and cannot make those decisions on your own. A spouse is typically the party named on these documents. However, you may want to name a backup in the event you and your spouse are incapacitated or injured at the same time.

Consider a Trust

You and your spouse might enter the marriage with a sizeable estate. If so, you may want to start the process of creating a trust for your assets. This can include any property you own separately or that you will have during your marriage, accounts you combine, and investments.

Furthermore, trusts offer more protection for you and your spouse. They provide you with privacy, too, and save your loved ones from the hassles of going through probate court.

Title Your Assets Correctly

Make sure you title your assets so that your spouse is reflected in those documents. While joint tenancy will give the rights of survivorship to your spouse, it does not provide a power of attorney.

Select an Estate Planning Attorney

Whether you want to take care of your estate plan before, or you would like to wait until after the big day, at least start thinking about your estate plan and what you need to add or change, and your goals with this very critical document.

Then, start looking for an estate planning attorney in your area. You want someone who will help you create an estate plan for you and your spouse that protects your assets before your marriage as well as those assets you gain throughout your relationship.

Likewise, you want to make sure that you can provide for one another if the unspeakable were to occur.

The Law Office of Andrew M. Lamkin, P.C., can assist you with your estate planning needs. Whether you each have an estate plan that now must be re-drafted into one or you are starting from scratch together, we can help you.

Attorney Andrew M. Lamkin, P.C., will meet with you during an initial consultation to go over your expectations, gather documents, and help create a plan. Then, you will work closely with him and his team to devise an estate plan that not only helps today, but protects you and your family as it grows and moves into the future.

To get started, schedule a free case evaluation by calling  or requesting more information online.

Cosmetic Hair Removal Procedures and Chemical Peels Injuries – Who Is at Fault?

Chemical peels and laser hair removal are some of the most commonly performed cosmetic procedures in the United States. They are considered non-invasive, and they are all outpatient. These procedures are not always done by medical professionals either. In fact, local spas and beauty clinics will have in-house technicians performing laser hair removal and applying chemical peels to their clients without the supervision of a physician.

Are Laser Hair Removal Procedures Safe?

For the most part, hair removal is safe.

However, to do the hair removal procedure, a specialized piece of equipment is used to remove hair through pulses of light. The equipment is pressed against the skin, and the light is supposed to penetrate into the skin’s layers and inside the hair follicle. The follicle then heats and burns away.

Typically, you need multiple procedures over the course of a few months to complete a full treatment and be hair-free.

Intense Heat Can Lead to Serious Injuries

Laser equipment relies on light and heat to penetrate into the hair follicle and remove it permanently. Because of this, a client could receive anywhere from second to third-degree burns when the device is not calibrated or used properly. The light intensity can be too much for certain skin types, too. For example, if the client has sensitive skin, a second-degree burn is more likely if the technician does not do a skin test assessment before administering the light procedure.

Second-degree burns are serious. A second-degree burn means that there is damage past the outer layer of skin, and a person may have blisters and permanent scarring. Likewise, they are at higher risk for infection because the underlying layers of skin are now exposed.

Third-degree burns are much more serious and often require immediate medical intervention. With a third-degree burn, multiple layers are damaged and so are the nerves and blood vessels. A person may have permanent scarring from this type of burn versus second-degree burns.

Why Do These Injuries Occur?

Laser technicians, in most states, are not required to have any licensing to perform these procedures and they are not required to have a medical physician oversee them either. Therefore, local spas, salons, and wellness clinics are free to offer the service. Some staff members of these facilities have had only one day of training before they are allowed to give treatments. Even worse, no one might supervise them after training – ensuring they are using the device correctly.

Also, laser technology is not foolproof. While advances have made the use of the light and heat resources safer, when the machine is not maintained well or properly calibrated, it can give off more heat than it should – leading to severe burn injuries.

Chemical Peels – Are They Safe to Have?

Chemical peels are a non-invasive cosmetic procedure done by wellness clinics, dermatologists, and spas. They are supposed to be safe, but this is not 100 percent. In fact, the U.S. National Library of Medicine, National Institutes of Heath found in one 2012 study that superficial and medium-depth peels can lead to everything from a minor irritation to life-threatening complications.

Just some of the injuries that were found from this common procedure include:

  • Incorrect Solutions Used – Chemical peels require a delicate balance of the chemical solutions in them to gently remove the first layers of dead skin cells and promote new, healthier skin growth. If the chemicals are mixed incorrectly or the wrong peel is used, a person could suffer from significant burns and scarring.
  • Infection – Infections can occur because the peel is designed to remove portions of the skin, which allows bacteria to enter – especially if the facility administering the peel does not sanitize their equipment. Common infections include herpetic, bacterial, and candida.
  • Blistering – Within minutes to hours after the peel, a person may notice that their skin starts to swell, becomes irritated, and blisters begin to form. They may have continuous irritation and pain from the chemicals. This often occurs when the sensitive skin test was not done properly or when the wrong concentration of chemicals were mixed the first time around.
  • Pigmentation Changes – Pigmentation changes can occur, including hypopigmentation and hyperpigmentation. These changes are often permanent, which can leave someone disfigured the rest of their life.
  • Loss of Cutaneous Barrier – When the peel is too concentrated, tissue injuries can occur, especially once the cutaneous barrier is removed.
  • Ocular Damage – Another common injury happens to the eyes, especially if the solution accidentally enters the patient’s eye or the mixture is applied too close to the sensitive eye area.

Compensation for Spa Injuries

If you received a chemical peel or you were injured during a routine hair removal procedure, you may be entitled to compensation for your injuries. Often, these injuries are preventable, and the wellness clinic or spa administering the procedures are negligent for not using the right equipment or training their staff accordingly.

As the victim, you have the right to hold these parties accountable and to seek compensation for your permanent injuries.

Some compensation you might receive includes:

  • Medical Costs: You should not have to pay for the medical expenses associated with your injury. These may include hospitalization, plastic surgery, and any physician appointments or medications. Instead, you can require that the facility pay these medical costs.
  • Lost Wages: You may have to miss days or weeks from work while you recover from your injuries; you can receive compensation for those missed hours.

If you or a loved one has suffered a serious injury from a routine beauty procedure, you should contact an attorney right away. An attorney at Koonz, McKenney, Johnson, DePaolis & Lightfoot, LLP, can assist you with your claim. We offer free, no-obligation consultations to all clients. Call us at one of our three convenient locations or request more information online.

Can You Sue for Accidents Caused by Potholes?

In most cases of car accidents, you have another driver involved in the accident and someone is usually at fault for causing it. Therefore, the issue of identifying who is liable for your injuries and losses becomes easier.

Yet, what happens if you are injured in a car accident, you are the only vehicle involved, and the cause of the accident was a pothole in the road?

When something like this occurs, you are now facing the possibility of a lawsuit against a government entity. After all, rarely does a private party maintain roadways. In instances like this, it is important that you speak with an injury attorney as soon as possible. An injury advocate can help identify which government entity may be at fault and help you go through the process of filing a claim against the government.

If the pothole was on private property, you will still want to contact an attorney. An attorney will review the facts of the case and help prove that the property’s owner was negligent, which led to a pothole that caused your accident.

When Road Conditions Cause the Accident, Who Is at Fault?

Potholes or erosion on the roadway can lead to a serious car accident for any motorist – even the most cautious. If you are the victim of a car accident that occurred due to poor road conditions, you must show that an individual, company, or government entity was responsible for maintaining that roadway and that they failed to do so – leaving a hazardous condition in place.

Determining Who Was Responsible for Maintenance

The first step to determining whether you have a case is to identify who would be responsible for maintaining the roadways.

If you were injured on city streets or highways, then most likely the city, county, or state would be the party responsible for maintaining the roads and highways and ensuring that the potholes that were likely to lead to injuries were corrected.

If, however, you were on a private road or a pothole in a parking lot caused your accident, it may be the property owner, their maintenance company, or the landlord leasing out the commercial property to tenants who is responsible.

Why Do Potholes Cause Car Accidents?

Potholes, when you look at them, do not seem like they could lead to anything catastrophic. However, poor road conditions are a common cause for traffic accidents. When any roadway has a defect, it increases the risk for motor vehicle collisions.

Potholes can lead to physical injury and financial losses for the owners of those vehicles. Not only can it cause expensive damage to the undercarriage, frame, or body of your car, but a pothole can cause your vehicle to stop unexpectedly and be rear-ended by another driver.

When the City Is Involved, How Do You Sue?

When the city, county, or state is responsible for the pothole and the pothole caused an accident, different rules apply. First, the city or government responsible for maintenance of that road still has a responsibility to keep the road conditions reasonably safe for all motorists and pedestrians. To determine when they would be responsible, your attorney would need to address three key factors:

  1. Did the government know about the pothole? Have they been informed before the incident that there was a dangerous condition on the roadway?
  2. When the government did their usual safety survey of the area, was the pothole listed as a cause for concern in that report?
  3. Were the dangerous conditions present long enough for the government to learn about them?

Lastly, your attorney will see how much time passed between when the government was notified of the condition and when it would be repaired. When officials had reasonable amounts of time to fix an issue but did not, then they could be held liable for those road conditions and the accidents that they caused.

Special Rules for Lawsuits Against Government Entities

When you have a claim against a government entity, special rules apply. You must notify the government entity and give them a specific number of days to respond (which is governed by state laws). This allows them to assess the claim against them.

Because these situations are highly complex, you will want an attorney if it does turn out that the responsible party is a government entity.

When a Private Company or Owner is Liable

If your accident occurred in a parking lot, most likely the company managing the property or the owner of that location would be responsible for maintaining and correcting any roadway hazards. The same applies on private property roads leading to someone’s property.

In this case, your attorney would want to know if the company or individual had reasonable time to discover the condition and whether they also had time to correct it. They may review surveys and inspection reports for any citations on the potholes. They may also look at repair logs to see when the pothole was reported.

What Is Reasonable Time?

One thing you may have noticed is that all parties get a “reasonable” amount of time to respond to hazardous conditions. But what is considered reasonable?

There is no clear definition, because the courts do not want to put a strict number on these types of cases. Instead, they consider what the average person would do in that situation. For private property owners, if an owner knew that there was a dangerous condition but someone was injured less than 24 hours after they were aware of it, they might not be liable. After all, less than 24 hours is unreasonable for someone to make a repair. They could have, however, used cones to portion that area off so no one drove over it.

Bottom line: It all comes down to the circumstances, how long between discovering the issue and the accident, and the evidence.

If you or someone you love was seriously injured in an accident involving poor road conditions, contact an attorney at Koonz, McKenney, Johnson, DePaolis & Lightfoot, LLP, today to discuss your options. We have three convenient office locations to serve you, and your initial consultation is always free.

Common Mistakes Made by Executors and How to Avoid Them

The job of being an estate’s executor is not an easy one. This is why, when you designate someone, you do so with extra care. You pick someone organized, efficient, and mentally ready for the job ahead.

Whether you are working to pick an executor or you were named the executor of an estate, there is much to still be done. One of the most critical tasks is finalizing the will and distributing the assets. While this sounds relatively simple, it is a highly complicated process where numerous opportunities for mistakes occur.

With the honor and privilege of being named comes great responsibility, family disputes, deadlines, and the risk of finding yourself named in a lawsuit.

Many of these hassles of the job can be avoided just by understanding your role and the common mistakes others made before you. Knowing the issues to avoid can prevent hiccups in the estate’s administration and let you get back to your life and work as quickly as possible.

What Mistakes Do Executors of Plainview Estates Make the Most?

To err is human.

Only, in the case of an estate, you are dealing with high emotions, family members who may not have good relationships, and money. Those three issues combined create a cesspool of contention. To not stir the pot, be sure you avoid these common executor mistakes:

Paying Estate Expenses Immediately

You are practicing your due diligence and assuming you are doing the job right by paying every outstanding bill immediately. However, not all bills are due, and in some cases, these expenses do not come from estate funds. Before you start writing checks and making payments, consult with an attorney.

Furthermore, if the deceased had an illness, more medical costs are likely to come through. And if you spend too much on expenses early on, it may offset the liquid assets.

Not Identifying All Assets of the Estate Correctly

One of the first tasks an executor does is locate and catalog all assets of the estate. When filing for probate, the executor will explain the assets found, their estimated value, and then identify which party receives them based on the will.

Some executors rush this process because the courts only allow so much time to issue a report to them. Doing so quickly means they overlook assets, and those assets then later must be disclosed to the court again. Missing assets the first time costs the estate and increases the wait time for beneficiaries. Furthermore, it may create liability issues with creditors, especially those who are affected by the oversight.

Distributing Assets Too Early

As an executor, you must distribute assets quickly and resolve the estate. But doing so before knowing the true scope of expenses only hurts you and the estate more.

You must administer timely, but also aim to pay all debts and liabilities first before distributing assets. Typically, an estate is administered within one year of the date of death. However, taxes, expenses, and other liabilities come first. If you were to distribute too early, and you did not hold onto sufficient estate funds to cover those liabilities, you would have to recoup funds from beneficiaries – which is almost impossible, in some instances. Often beneficiaries move, spend their inheritance, or become uncooperative.

Therefore, wait for all bills to apply. And if there are any outstanding medical costs still pending with insurers, wait for those to process so that you understand the full scope of expenses and know how much funds you need to reserve for them. You may be able to distribute certain assets while holding on to a reserve for any pending costs, but speak with an estate administration attorney first before doing so.

Waiting Too Long to Distribute

While you must be diligent and ensure you have the funds to pay for estate taxes and other debts, waiting too long is an issue as well. Not only will creditors and beneficiaries become anxious and possibly threaten lawsuits, but it can cost the estate unnecessary expense as you battle these claims in court.

Also, not administering an estate promptly could constitute a breach of your fiduciary duty, because you would not be acting in the best interest of the estate anymore. Beneficiaries can file a lawsuit against you, and you may pay from personal finances for any unnecessary costs inflicted on the estate due to your refusal to administer the estate.

Misinterpreting Terms of the Will

Unfortunately, a poorly written will leaves too much room for interpretation. It is the executor’s role to interpret the wishes of the deceased and carry out those wishes as they distribute the estate’s assets. If you misinterpret terms or blatantly ignore terms you disagree with, you may find a petition to remove you from your role and you could be personally liable for any costs associated with doing so.

Not Seeking Legal Counsel

One of the biggest mistakes executors make is not hiring an attorney at a reasonable time.

An attorney can help with the administration of the estate and with any tax filings or disputes, and ensure that the will is executed properly. Furthermore, an attorney helps protect the executor from the frivolous creditor and bitter beneficiary claims and can help protect them from being held personally liable for estate matters.

Need Assistance with Your Role as an Executor? Contact an Attorney in New York

New York probate courts are complicated, and your role as an executor can be overwhelming – especially if you have a life of your own.

Do not let the task of administering an estate affect your life. Instead, get the assistance you need and the guidance for navigating estate laws for New York. Speak with attorney Andrew M. Lamkin, P.C., today to explore your options.

You can schedule your free case evaluation now at 516-605-0625 or request more information online.

If you are currently writing a will and you would like assistance with your estate plan and designating an executor, the Law Office of Andrew M. Lamkin, P.C., can assist you as well. We are a full-service estate planning law firm that can help with everything from wills to trusts to Medicaid planning and estate litigation.

How to Qualify for Medicare and Medicaid: A Planning Guide for Seniors

Retirement is around the corner. And while you have most of your retirement planning complete, the one area you put off is now knocking at the door.

Medicare and Medicaid become staples for retirees in New York. Without them, you do not have coverage for prescriptions, medical costs, and even nursing care. Therefore, it is time to pull out your paperwork and get ready to apply.

Being prepared, understanding how the process works, and ensuring you qualify are all critical when it comes to government insurance programs. These programs have strict requirements and deadlines. And when one misstep occurs, you experience lengthy delays.

It is best to consult with an attorney that has Medicare and Medicaid planning experience. Attorney Andrew M. Lamkin, P.C., can assist you with these steps, help allocate assets appropriately to qualify financially, and advise you on the process for both programs and which program you may be eligible for.

Medicare Planning for Plainview Residents

Medicare coverage in New York comes in various options; therefore, explore each and see which might work for you and your healthcare needs. New York uses the federal options of original Medicare (Part A and Part B), and the Medicare-approved insurance plans like Medicare Part D and Medicare Advantage.

Here is how each of these work:

  • Medicare Part A and B: This is primary insurance coverage. Part A focuses on hospitalization insurance, while Part B is general health insurance.
  • Medicare Advantage Part C: Plans for Part C come through private health insurance companies but must be approved as part of the Medicare program. These cover the same as Part A and B, but also give dental, vision, and prescription drug coverage benefits.
  • Medicare Supplements: Supplemental insurance plans help fulfill gaps between Advantage Part C, and original coverage. These come with up to ten various plans.
  • Medicare Part D: Prescription coverage under Advantage Part C may not be enough, depending on the number of prescriptions you take each year. Part D provides a stand-alone prescription coverage that works with Part A and Part B, saving you the hassle and cost of adding on Part C when you do not need the additional coverages it has.

When Do You Qualify for Medicare?

Applications for Medicare are accepted once you can show your legal residency in New York for a consistent five-year period and if you are 65 years or older. In some rare instances, you may qualify if you are under 65 if you have a qualifying disability or condition. Luckily, you automatically enroll in Medicare if a spouse or you already receive Social Security or Railroad Retirement Board Benefits or are diagnosed with Lou Gehrig’s Disease (ALS).

Medicaid Planning for Plainview Residents

Medicaid is more complicated than Medicare. Medicaid covers medical costs and insurance for residents of the state who cannot afford to do so themselves. You may qualify when you have high medical costs, receive Supplemental Security Income, and you meet the strict financial requirements.

Applications for Medicaid differ from Medicare. You do not automatically enroll. Instead, you must meet the Modified Adjusted Gross Income (MAGI) rules then apply through the NY State of Health or by using a Managed Care Organization (MCO).

Groups that qualify for Medicaid include:

  • Pregnant women;
  • Infants and children under the age of 19 years;
  • Childless adults between the ages of 19 and 64 whom certify as disabled and do not receive Medicare;
  • Parents and caretakers of sick relatives;
  • Family planning benefit recipients; and
  • Children in registered foster care programs.

What the Government Considers When Reviewing Applications for Medicaid

Medicaid is no cost to the recipient. Therefore, the government is strict about who can receive this medical benefit.

Medicaid is a joint insurance program through New York and the federal government. It pays for nursing homes and health aides for those who qualify. Unfortunately, too many qualified applicants assume they will not be accepted; so they do not try to receive benefits.

While the requirements are strict and hundreds of applications are denied each year, often, it is because the applicant did not go through the proper planning stages ahead of time. Working alongside an estate attorney with Medicaid planning experience is crucial here. An attorney establishes a plan that helps move assets and allows you to qualify under the financial requirements.

The Department of Social Services looks at three primary factors when considering qualification:

  1. The needs of the applicant and the care they seek in their application
  2. The income of the applicant and spouse, including pensions, retirement benefits, rental or investment dividends, and Social Security benefits received monthly
  3. Assets and resources of the applicant and their spouse, including home value, investments, cash, and insurance policies

Depending on the Medicaid program you apply for, one or more of these three will be heavily weighed in the decision-making process.

The Various Medicaid Programs and Options

You should only apply for the type of program you need and would likely qualify for. For example, the Community Based Medicaid program is for those who need a home health aide to assist with daily living. This plan has income requirements. And assets, including homes, are considered as part of the income cut-off.

The Benefit of Hiring a Medicaid and Medicare Planning Attorney

While you could plan yourself, an attorney is valuable in Medicaid and Medicare planning. Obtaining these state and federal insurance programs is complicated, and the process can be drawn out unnecessarily when things are not done right.

At the Law Office of Andrew M. Lamkin, P.C., you receive an advocate with years of experience in estate planning and Medicaid qualification requirements. He understands the complexities of these government programs, and he can ensure that you not only apply for the programs you qualify for, but prepare your estate so that you can receive your much needed benefits without unnecessary delays.

To get started, speak with attorney Andrew M. Lamkin, P.C., during a free case evaluation. Schedule your appointment now by calling 516-605-0625 or request more information online.

The Dangers of Using Downloaded Estate Planning Templates

Today, you can do almost anything online.

You can open a bank account, start a retirement, open a business, and more. With the plethora of do-it-yourself websites out there and articles showing you the steps, you might assume that you can create your estate plan using one of these sites and save yourself thousands.

Unfortunately, estate planning is not something you should use a premade template for. Doing so could risk your estate and cause more hassle for your loved ones later.

State laws vary, and do-it-yourself templates are generalized: meaning, they do not specify by state. Therefore, you could use a general template that violates state estate laws, and the court will find it invalid, which means the court will not recognize the plan anyway.

The Reasons Plainview Residents Should Never Use a DIY Estate Plan

You have worked hard to build your estate, so why risk giving your family much less than you anticipated just to save some money creating an estate plan?

If you are convinced a DIY estate plan is just fine, here are a few reasons to reconsider:

You Are Not Receiving an Expert’s Review

DIY estate plans are missing one key element: a legal professional. There is nothing wrong with wanting to save money, but when you do so, you skip out on being able to consult with an attorney. These documents often do not create the results you intend for them to. And if you do not understand the legal or technical aspects of estate planning, you are putting your entire estate at risk.

For example, you sign the deed of your house over to your trust. However, you didn’t create the trust in accordance with state laws; therefore, it was never active. Now, your home is not part of the trust as you intended.

You Do Not Have a Personalized Estate Plan

Every estate is unique, and that is the point of meeting with an estate planning attorney. You want to draft a plan that addresses the unique aspects of your beneficiaries, estate, and assets.

Estate templates are strictly generic. They do not look for those unique factors that make you stand out from the crowd. Using these means you could miss out on a chance to avoid probate, avoid heavy estate tax, and your property might not transfer to the right party.

You Are Unlikely to Follow State Laws

These DIY tools are not specific to the state where you live – even if they advertise as such. Instead, they are a generic one-size-fits-all template. For example, New York has different laws than California, especially when it comes to estate tax and probate. Therefore, your generic DIY template is unlikely to address these laws.

Furthermore, when you create an estate plan, do you follow up on the latest changes to the law? The law regarding assets and estates changes more often than you think, which means your template might be obsolete in as little as a year.

You Might Miss the Hidden Disclaimers

Online programs typically have disclaimers, but they do not make these readily seen.

Commonly, these sites or books will have statements that the information is not a substitute for legal advice nor is it legal. These statements are published because they are legally required, but that doesn’t mean the company makes them easy to spot. The print could be fine, hidden at the bottom of the page under other content, or in areas where these websites often assume you will not read.

You Could Grant Too Much Power to Another Person

While you have the right intention with your estate plan, you might inadvertently grant too much power to another person, especially when that power of attorney document is not clearly written. Ambiguous statements are left to interpretation, which means they might not be interpreted in the way you intended them to be.

The best way to avoid this is to work with an attorney. You can tell them your wishes and the amount of power you want the individual to have. Your attorney can then clearly articulate that in your power of attorney to avoid any confusion.

You Might Not Include Your Business

DIY kits rarely have the capacity to address issues like business succession. Therefore, your estate plan is unlikely to dictate what you want done with your business after death – including whether you want the company sold, who will take over leadership, and so forth.

You Do Not Receive the Complexity Required for Unique Cases

Do you have children? Are they minors? Do you need to set up a special needs trust for an adult child who is disabled? Online programs rarely address complex estate planning issues such as these. Furthermore, they might not adequately address guardianship for minor children. This means the courts would have to decide who gets custody of your children and how the funds are managed for them.

You Are Less Likely to Update Your Will

Estate plans are not a one-time-only situation. You create them, but you can never forget them. You should review them annually and update them when you have significant changes. For example, you might have divorced, but did you create a new estate plan addressing that fact? If not, you may have some issues when it comes time to use your health care directive or when assets are distributed.

Avoid the Hassles: Speak with an Attorney about Your Estate Plan Today

Estate planning is more cost-effective than you might think. Most attorneys charge a single fee for your plan. And when you consider what goes into a well-drafted plan, it is worth every penny.

To save your loved ones from having to deal with an estate plan deemed invalid by the courts, skip the unknowns; get an estate plan that follows New York probate and asset laws, and one that can adjust to future legislative changes as well.

Get started by scheduling a consultation with an attorney today at the Law Office of Andrew M. Lamkin, P.C.

Call 516-605-0625 to schedule your free consultation or contact us online with your questions about estate planning services.

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.

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.

Trusts

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

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.

Sources:
http://money.cnn.com/retirement/guide/estateplanning_trusts.moneymag/index.htm
http://www.bankrate.com/finance/personal-finance/9-key-estate-planning-tools-1.aspx
http://www.fpanet.org/LifeGoals/PlanningMyEstate/AdditionalEstatePlanningTools/

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.

Sources:
http://www.sba.gov/community/blogs/mid-year-tax-planning-do-it-now-save-later
http://smallbusiness.foxbusiness.com/finance-accounting/2013/10/25/end-year-tax-planning-for-your-small-business/
http://www.forbes.com/sites/thesba/2012/01/10/5-tax-planning-tips-for-small-business-owners/

Preventative Measures to Defend Against Will Contests

The purpose of a will is to be sure that your affairs are handled after your death and that your loved ones are taken care of properly. A will also protects your estate from various forms of litigation, including suits filed by family members who do not agree with the will’s contents. For this reason, it is important to take steps to protect your last will and testament from potential contests after you have died.

Plan Your Estate When You are Young

The best advice regarding estate planning is to begin taking steps when you are young and of sound mind. Even if you don’t have a lot of assets, are single or don’t feel as if there is much to protect, a will makes things much easier for your heirs. In addition, creating your will when you are of sound mind makes it more difficult for someone to claim you were not able to make an informed decision regarding the disposition of your assets.

No Contest Clause

In some states, it is possible to include an in terrorem clause, also known as a “no contest” clause. The in terrorem clause states that if anyone named in your will or irrevocable trust files a lawsuit to challenge the provisions of the document, they receive nothing from the estate. Some states prohibit such a clause, while other states name exceptions to the rule that could make the clause unenforceable. An estate attorney can advise whether this clause is applicable in your state.

Consider Trusts

A revocable living trust is another means of avoiding will contests after your death. Trusts are personal documents that remain private, while a will is a matter of public record. In addition, a revocable trust covers all phases of your life, regardless of health, and can continue even after you pass away. A will only takes effect at the time of your death. If there are family members that you feel may squander their inheritance or create trouble after your death, consider creating a lifetime trust to encourage more responsibility and reduce the chance of litigation.

Discuss your estate plan with family members as well so that there are no surprises after your death. Every few years, review the terms of your will to be sure it still suits your current goals. A pattern of repeatedly reviewing your estate plan will make it much more difficult for a will contest to be successful, as your record will demonstrate that the will is indeed representative of your final wishes.

Sources:
http://www.nolo.com/legal-encyclopedia/estate-planning-when-you-re-young-healthy-childless.html
http://www.bankrate.com/brm/news/pf/20061115_no-contest-clause-a1.asp

How Spousal Rights Affect Legal Property Ownership

Various laws concerning a person’s property rights during marriage are normally based on the state that the marriage took place in. Marriage and property ownership laws in different states are divided into two different categories. There are states with community property laws and states that do not have community property laws. These different laws govern how spouses can dispose of their property or use their property during marriage. They also govern how property will be divided in the event that the spouses have a divorce or in the event that one of the spouses dies. Most states give spouses the chance to change a state’s law a little regarding marital properties through the use of spousal agreements.

Community Property States and Common Law States

The property that two people own during a marriage is divided into two different categories. Property can be either non-marital property or community property. Community property is property that a married couple own together. Non-marital property is a type of property that a spouse owns alone or owned before he or she got married. However, this type of property can become marital property if it becomes mixed in with property that the couple owns together. For example, if a spouse uses money that was obtained before the marriage to pay towards a down payment for a home with his or her spouse and both people make payments with money that is earned after the marriage, the complete equity in the home becomes marital property.

Common law states pay more attention to the name that is on the title of the property when it comes to a spouse’s property ownership rights. For example, if each spouse has a car in his or her name, it will belong to only him or her. However, if the house is in both names, they each own half of the value of the house.

Postnuptial and Prenuptial Agreements

All states regardless of their laws concerning marriage and property will let married couples create reserved agreements about property and the division of property. However, there will be various specifications regarding what is allowed in these agreements. The specifications are different with each state. An agreement can never put a limit to how much child support will be paid if a divorce does happen. Depending on the state, this might also apply to spousal support as well. Most of the time prenuptial agreements and postnuptial agreements are geared towards the spouse’s property ownership rights. Your state’s courts are probably going to pay more attention to enforcing prenuptial agreements than postnuptial agreements. However, both types of agreements will only be enforced if each spouse has equal negotiating power. There must also be full financial disclosure between both parties.

SOURCES:
http://www.nolo.com/legal-encyclopedia/marriage-property-ownership-who-owns-what-29841.html
http://www.prenuptialagreements.org/postnuptial-agreements/
http://www.bankrate.com/brm/news/pf/20060322a1.asp

Common Roadblocks In Setting Up Legal Guardianship of a Minor

A guardianship is established when the court determines that a child’s biological parents are no longer able to care for a child appropriately. A case may be brought to court by child protective services if abuse has been filed against the parent. A case may also be brought to court by the person attempting to become guardian or a relative of the minor in question. Whatever the situation, there are several common problems that can arise when trying to become a guardian. While the legal process of guardianship does not strictly require the use of an attorney, having one is highly recommended.

The Custodial Parent Objects to the Guardianship

This is perhaps the most common problem with acquiring guardianship. Most situations involve a forced removal of the child from parental custody, but the law here is somewhat ambiguous because the biological parents’ rights may still intact. This gives the parent a great deal of say over the guardianship and who can become a guardian. The parent may also make certain demands, such as reasonable visitation, that may conflict with the guardian’s schedule and make the overall process much more difficult.

Missing Notice Forms

The law is very strict on the requirement that a guardian give “legal notice” to certain individuals, relatives and agencies involved with the child. Some of these individuals may be apparent, such as the child’s current parents or custodians. Others may not be apparent or may not be directly involved in the child’s care. It is your responsibility to find these individuals and “serve” them a legal notice form. If you cannot find the person, then you must appeal to court to allow the case to go forward regardless. A mistake during this process can require you to start the guardianship process all over again.

Home Study Failure

The court will appoint an investigator to interview you, the child, the parents and other applicable individuals. They will also conduct a home study to ensure that your home environment is suitable and meets certain standards. The investigator will be looking to ensure that the child will have adequate personal space, access to nearby education, access to acceptable healthcare and a space appropriate for parental visitation. Inadequacies in any of these areas will be reported to the court and may result in a delay of the guardianship process.

Return of Absent Parent

It should be noted that biological parents always have first parental right, even if they have been absent from the child for a long time or were not currently holding custody. A guardianship case may be hindered if an absent parent returns unexpectedly to claim his or her parental rights. The court will have to assess the parent’s appropriateness and may assign the child to the returned parent instead of the guardian.

A judge makes the final decision on all guardianship cases. Keep in mind that a guardianship is not an adoption, and it can be revoked by the court at any time. Many guardianship cases on Long Island result in the child being ultimately returned to their biological parents.

Sources:
http://www.courts.ca.gov/1212.htm
http://oklaw.org/issues/family/guardianship

 

5 Trust Types That Will Maximize Your Kids’ Inheritance

One of the most important parts of an effective estate plan is to ensure that a family’s children are properly provided for, whether they are minors or adults. This is often accomplished by placing some or all of the estate into a trust. The following five types of trusts have been found to be very effective in providing for the care and prosperity of a family’s children. In addition to the specific type of trust, many trusts can be written as revocable or irrecoverable trusts, depending on the specific needs of the family.

Irrevocable Trusts

An irrevocable trust is a trust where the property is placed beyond the control of the parents, subject to the terms of the trust. This has a variety of advantages, including reduced taxation and the fact that the trust’s assets are largely immune from the actions of creditors.

Revocable Trusts

A revocable trust is a trust that can be changed at the option of the grantor. These types of trusts are often used where changing family and personal circumstances may require modifying the trust over the course of the grantor’s lifetime. However, revocable trusts are somewhat more vulnerable to creditors and court actions than irrevocable trusts, and they do not share the same tax benefits.

The 5 Best Trusts For Transferring Money To Your Kids

Section 2503(b) trust is an irrevocable trust that takes the assets and holds them for the child, with the provision that the child must have the income of the trust distrusted to him or her at least once a year. The creator of the trust can determine whether the trust will terminate upon the child’s 21st birthday. This trust can effectively shield the child’s inheritance from creditors, as well as provide the parents with some control over how the child will spend the trust, even after his or her 21st birthday.
Section 2503(c) trust is similar, but automatically terminates upon the child’s 21st birthday. In addition, the trustee can use the money in the trust to pay for the child’s college education. This trust is a tool commonly used to protect the estates assets until the children are adults and capable of effectively managing the funds released into their care.

spendthrift trust is a special type of trust that can be especially useful if a parent has doubts about their child’s ability to manage his or her funds effectively. This trust allows the trustee to refuse to release funds if he or she believes that they will be taken by a creditor or otherwise misused by the beneficiary. This trust can protect the child from being rendered penniless due to a lawsuit or other civic debt.

special needs trust is a type of trust designed to allow an individual to be able to make use of the trust without rendering them ineligible for government aid. This type of trust can be useful for families who have disabled children, as it allows the child to avoid having to choose between their inheritance and the continuation of their government support. A special needs trust can also be used to shield an award from a personal injury lawsuit from government aid income restriction guidelines.

grantor retained income trust is a common tool used to reduce the potential tax liability of the parent’s estate. This trust allows the property to be placed in the trust, but mandates that the grantor will retain the property’s income for a time determined by the grantor. This helps reduce the property’s federal estate tax value, which can dramatically reduce the taxes the grantor’s children will be liable for.

These five types of trusts all provide extremely useful estate planning tools to help ensure that a family’s children, whether they are adults or minors, can enjoy the property that their parents wish to bequeath them.

Sources:
http://www.law.cornell.edu/wex/estates_and_trusts
http://livingtrustnetwork.com/estate-planning-center/revocable-living-trust/types-of-trusts
http://www.foxbusiness.com/personal-finance/2013/07/10/special-needs-trust-provides-for-disabled/
http://www.law.cornell.edu/wex/grantor-retained_income_trust
http://www.nolo.com/legal-encyclopedia/spendthrift-trusts.html
http://www.accountingtoday.com/ato_issues/2002_15/692-1.html

5 Reasons to Draft a Will Right Now

Many mistakenly believe that drafting a will is something that only needs to be done by old, retired people who have families and are facing their end of life decisions. There are, however, many reasons to draft a will no matter what age you are. It is really never too early to make your will.

1. Serve Your Family

Unfortunately, death is a sure future for everyone. There is no way to predict exactly when you will be leaving the Earth. If you are a young person, with no children, then a will can help ensure your current possessions go exactly where you want them. It will also ensure that your funeral and burial arrangements are done according to your wishes. Having a will is a great way to help your surviving relatives. Forcing them to guess at what your wishes might be and worry about getting it wrong is simply unnecessary. Making a will serves your family just as much as, if not more than, it serves you.


2. Limit Sibling Rivalry

Inheritance is one of the key reasons to make a will. Remember that the government has already put in place laws controlling the disbursement of assets upon a person’s death. The only way to supersede these laws is with a written will. It is unlikely that the government will be allocating your estate the way you intend. There is also little to keep siblings from suing and arguing in court over matters of inheritance. By clearly stating how things will go in a will, you can eliminate many legal hassles and infighting.

3. Child Care

If you have a minor child, then you probably have a specific person in mind to care for that child if something should happen to you and your spouse. Most states will automatically turn a child over to the next of kin relative or, if none can be found, place them into the foster care system. No non-family member is legally entitled to take the child unless you specifically name that person in your will. Also, if you would prefer a specific family member to be the caretaker, then they must be named.

4. Things in Your Life Have Changed

Change is a part of life. Even if you have drafted a will in the past or didn’t think you needed one, several life changing events can have a huge impact on the handling of your estate after death. These events include marriage, having children, having grandchildren or developing a serious illness. If any of these events have occurred it is very important to make a will or to update your last will.

5. The Family Business

A will also ensures the continued operation of a family business by appointing chief operators and properly handing over the business ownership to another person. Without this, the business may simply cease to exist unless someone takes ownership of their own volition. The law may also default ownership to someone you would rather not have it.

Sources:
http://www.businessinsider.com/why-you-should-make-a-will-2011-12#its-one-of-the-three-most-important-documents-every-adult-should-have-1

The Basics of Guardianship, Health Care Decisions, and Power of Attorney

Legal terms can be confusing. To help those debating over the best care options for their loved ones, below three common elder law terms are defined and explained.

Guardianship

Guardianship is a term used to define anyone who has custody of, or the sole responsibility of caring for, an aging parent or other elderly relative or friend. Guardianship of this nature is usually requested and/or obtained by a close relative or trusted friend of an elderly person when it is deemed that the person needs someone to take care of them due to such issues as a disability, dementia, Alzheimer’s disease, or a terminal illness that renders the person too ill or weak to take care of himself. Guardianship of a disabled or terminally ill relative or aging parent may also be granted by a judge if there is a dispute regarding who has the legal “right,” as well as the best means possible, to provide the necessary care.

Health Care Decisions

While many people think of this subject in relation to the elderly, health care decisions must also be made for children and disabled or terminally ill relatives as well as aging parents. Such health care decisions often include what is known as a living will, also referred to as an advance directive. This important document simply specifies the person’s wishes regarding medical care in the event of a terminal illness or other medical condition or emergency which would leave the person in a coma or vegetative state and unable to make decisions. This also ties in closely with power of attorney, which is addressed next.

Power of Attorney

Granting a power of attorney is an important, personal decision that involves choosing someone to make all legal and medical decisions in the event that the person doing the choosing becomes unable to make decisions for or care for himself. A power of attorney is a legal power which requires the acceptance and agreement of the chosen party to care for and carry out the other person’s wishes, within reason, as well as required legal documentation which has been prepared by the person’s attorney.

Need More Advice?

To fully understand the ramifications of different care and decision-making arrangements for your loved one, it is best to seek the advice of an elder law–focused lawyer. Long Island attorney Andrew Lamkin has long experience working exclusively on elder law and related legal questions. Contact us today for a free consultation at 516-605-0625.

5 Alternatives to Guardianship

A guardianship is a position of total authority and responsibility for a disabled adult who is for some reason incapable of making decisions to support himself or manage his affairs. Such persons are referred to as wards. Often, a person may be temporarily disabled or in need of less restrictive assistance. There are several alternatives to guardianship that may be more appropriate or preferable for such individuals.

A Health Care Proxy*

A health care proxy’s support is limited to only those decisions involving health matters, such as hospital stays, operations, and long-term care. A health care proxy is usually called upon for short-term disabilities such as periods of coma or unconsciousness. The proxy may also be called in for long-term disabilities such as dementia or terminal illness. The proxy is usually a family member, but it can be any agent agreed upon by the individual.

A Personal Caregiver

A personal caregiver is usually an employed professional trained to provide for people with serious illnesses or disabilities that prevents them from caring for themselves. Personal caregivers are usually assigned to those who do not require hospitalization, but cannot live independently. A personal caregiver may visit temporarily to provide meals or services, or they may stay at the home to provide round-the-clock care. A caregiver is often assigned by a hospital or other medical agency. They generally do not have legal permission to make decisions for the individual, but they may have access to personal information and limited access to financial resources needed for that person’s care, such as buying groceries or medical supplies.

A Power of Attorney

A power of attorney is a legal ability to make financial or healthcare decisions for a particular person. The person provided with power of attorney is known as the attorney-in-fact. Power of attorney can vary from complete control of a person’s financial resources to limited control of only a single aspect. For example, an attorney-in-fact may be assigned to deal only with a person’s health care needs, much like a health care proxy, or they may be assigned only to deal with a person’s investments or estate. Power of attorney is often given to a family member, but it can be given to any individual at the disabled person’s discretion.

A Representative Payee

A representative payee is an individual assigned by the Social Security Administration to handle a disabled person’s Social Security and SSI payments. The SSA dictates a representative payee, with input from the disabled person if possible. The SSA will choose family members or close friends first. If none are available, they will use a qualified organization to act as a representative payee.

Trusts

A trust is a wealth management tool that allows an asset to be held by a third party on behalf of a beneficiary. Anyone can hold an asset in trust for anyone else, regardless of age or disabled status. Trusts are often used to handle inheritance and to limit the impact of inheritance or estate taxes.

Know the Facts Before Making Your Decision

Elder law attorney Andrew Lamkin focuses on providing advice on how to best fulfill the care and decision-making needs of your dependent loved one. Contact his law office today at 516-605-0625 to receive a free consultation and ensure that you make the most suitable choice for those who depend on you.

Recommended Resources
http://www.health.ny.gov/professionals/patients/health_care_proxy/
http://www.ssa.gov/payee/
https://www.fidelity.com/estate-planning-inheritance/estate-planning/trusts

What to Look Out for to Make Sure Your Will Won’t Lead to Family Disputes

It is very unusual for a will to be contested. However, if potential beneficiaries and heirs believe that the maker of the will was not of sound mind at the time that the will was constructed, the contents of a will can be challenged. A majority of wills will go through probate court without being contested, but if the will does not meet legal requirements and would-be heirs point this out in probate court, there can be delays that can benefit the person who is contesting. If you want to create a will that meets requirements and will not lead to family disputes, you should be aware of the grounds on which family can contest your will. Here is a basic guide on making a fully legal will, so that your deserving heirs receive what you left them.

Mental State

If a family member wants to contest your will because he or she is not an heir or beneficiary, one of the most common grounds for contesting the contents of the will is that you did not meet the “sound mind” requirement when the will was written. Will makers (testators) must be of sound mind, know what a will does, know that they are making a will, and know how they want their belongings and assets to be distributed. If a person contests the contents of your will, they may say you lacked the mental capacity to distribute your belongings to the appropriate parties. Having a video will may prevent these considerations from being grounds for a challenge to your living testament.

Age

For a will to meet legal requirements set by a probate court, the testator must be 18 years of age or older. The only exception to this rule is when you are emancipated, married, or in the military.

Manipulation and Fraud

In some cases, family members may claim that one or more trustees committed fraud by manipulating the testator when the latter was in a vulnerable position. This is more commonly referred to “undue influence” in probate court.

Understanding What Will Make Your Will Valid

A will does not have to be full of complex legal terms and statements to be valid. The document must fulfill specific state requirements. In most cases, a state will require that the document do the following:

  • State that the document is the will and state the person’s name
  • Include a statement that identifies who will receive property or who will become the guardian of a minor
  • Appoint an executor to carry out the terms of the will

A will can be done in your own handwriting and still be valid as long as it meets each of these requirements. If the will is handwritten, you must sign and date the paper. Having at least two witnesses who were adults at the time the will was written and signed is a good way to prevent a family member from challenging the contents. If the will is notarized, none of the witnesses on the will must appear in court to swear a will is valid when challenged.

The Best Protection Against Disputes Is Good Legal Advice

To prevent family disputes and leave a legacy to deserving heirs, it is best to know your state’s requirements when it comes to settling probate before you construct a will. The firm of elder law attorney Andrew Lamkin serves not just Long Island but all of New York state and can help you understand how New York law applies to your situation. Call Andrew Lamkin’s office today at 516-605-0625 for a free consultation.

Recommended Resources:
http://wills.about.com/od/fiveessentialdocuments/tp/howtocontestawill.htm
http://www.nolo.com/legal-encyclopedia/grounds-challenging-will-30288.html
http://www.aarp.org/money/estate-planning/info-08-2011/contesting-wills.html

The Advantages and Disadvantages of an Adult Guardianship

Adult guardianships are sometimes necessary when an adult becomes incapacitated and the adult can no longer handle his or her financial or medical business. If there is no durable power of attorney in place, the guardianship becomes necessary. The court is the institution that is in charge of appointing a representative to handle the matters of the adult. Generally, an interested family member or friend is considered to be a suitable representative. The court will take several things in consideration before naming the person as guardian.

Initiating a Guardianship Petition

The process is initiated by an interested party filing a petition for guardianship. The petition is required to be accompanied by a physician’s report that indicates the need for guardianship. According to law, the “disabled adult” is entitled to due process under law, so he or she must be served with the petition at least 14 days prior to the court proceedings.

Legal and Social Advantages of a Guardianship

A guardianship offers legal advantages for the representative and the disabled adult. The disabled adult can have his or her important financial and health decisions made by someone that has the person’s best interests in mind. An appointed guardian has a responsibility to report the ward’s activity to the court, so there is a checks-and-balances mechanism in place. Court oversight provides some protection for the representative, especially when others might make accusations that the representative is abusing his or her power. A guardian is required to have a bond issued to offer some protection of the disabled person’s assets.

Legal and Social Disadvantages of a Guardianship

A guardianship has several disadvantages as well. The costs of a guardianship can be fairly prohibitive. These costs include fees for court proceedings, legal representation, and posting a bond. The representative is required to pay a premium for the bond that protects the assets of the disabled adult. The annual reporting that is required by the guardian can be tedious. In addition, privacy is reduced considerably with this type of proceeding. A guardianship hearing is considered a public proceeding, and the public can sit in on the hearing, although not all of the information is public. For instance, the court will seal all medical and physician reports, and these reports can only be retrieved in circumstances where the judge deems it appropriate for the release of these records.

Is a Guardianship the Right Choice for Your Loved One?

There are several alternatives to guardianship, so it would be wise to discuss each of them with an elder law lawyer before deciding on the best option for your loved one. Attorney Andrew Lamkin focuses exclusively on elder law and related legal issues and offers free consultations. Call the Law Office of Andrew Lamkin, P.C., at 516-605-0625 to discuss your situation and your options.

Living Trust Basics

When most people plan to distribute their property at death, they think of a simple last will and testament. At death, the will goes through a legal process known as probate. The probate process is public, with the executor’s actions reviewed by the probate court. In most cases, the process takes several months; problems can turn the timeline into years of expensive legal battles among heirs. Probate can incur significant legal fees for “administrative costs.” And the only end-of-life issue addressed by the will is “distribution of property.”

A Living Trust Is Private

A living trust is drafted and administered privately, usually within the family. At first, the settlor often serves as his own trustee, retaining full control of the property. At the settlor’s death, disability, or resignation, the appointed successor trustee takes over as trustee.

Assets and Administration Stay “In the Family”

While most probates require immediate liquidation of assets and distribution of the proceeds, living trust assets can be retained by the trust if it is financially prudent to do so. Potential problems such as spendthrift heirs and anticipated bickering among siblings can be addressed by provisions of the trust.

Distribution Takes Minutes, Not Months

A successor trustee can assume control immediately in an emergency. While the probate process requires banks to put an immediate hold on an individual’s bank accounts at death, bank accounts in the name of the trust require only proper documentation of the successor trustee’s appointment and the signing of a signature card. Thus funds will be immediately available for funeral and other expenses.

Save Thousands of Dollars in Administrative Fees

Living trusts aren’t just for the very rich. For example, a modest $100,000 estate in Indiana going through traditional probate incurred $35,000 in “administrative fees,” leaving $65,000 for distribution to heirs eight months later. Another $100,000 estate (same state, same extended family) titled in a living trust passed in its entirety to the single heir the same day.

Most Living Trusts are a Package Deal

The living trust package usually includes several documents: the living trust, a “pour-over” will leaving non-titled assets to the trust, a durable power of attorney, healthcare directive and appointment of healthcare representative, as well as a Living Will with end-of-life instructions. The living trust package allows you to prepare for disability as well as death.

Because living trusts include more extensive documentation and bring no future probate administrative revenue potential, they are more expensive up-front than a simple will. However, most people feel that the ultimate savings in time and money make living trusts a worthwhile investment.

Want to Learn More about the Benefits of a Living Trust?

Long Island–based elder law attorney Andrew Lamkin can help you consider every option to best provide for your family when planning your estate. You can receive a free consultation by calling the Law Office of Andrew Lamkin, P.C., at 516-605-0625, or by completing our Contact Form.