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Spouse’s Rights in Estates in New York

Spouse’s Rights in Estates in New York

The laws in New York protect spouses in estate cases. New York has a very specific law to protect a spouse’s inheritance rights. The law in New York allows a spouse to have what is called an “elective share”. The elective share in the spouse’s estate is the greater of $50,000.00 or one-third (1/3rd) of the estate. This elective share takes into consideration assets such as joint bank accounts and other assets that are known as “testamentary substitutes.” A spouse who has not received their fair share of inherited assets from their spouse’s estate must take legal action to make a claim for their elective share in the estate proceeding.

Statute of Limitations for Seeking an Elective Share

A spouse’s right to claim the inheritance she is entitled to under his or her elective share must be initiated within six (6) months after an executor or an administrator has been appointed by the Surrogate’s Court but not later than two (2) years after the decedent’s death to deal with all of the issues involved in the estate.

Pre-Nuptial and Post-Nuptial Agreements

A pre-nuptial or post-nuptial agreement can place restrictions on a spouse’s rights to obtain an elective share. Sometimes when there is a pre-nuptial or post-nuptial agreementElliot Schlissel a spouse presumes he or she is not entitled to their elective share. If there is a pre-nuptial or post-nuptial agreement it should be evaluated carefully by an estate’s lawyer. There may be a ground to take legal action to set the pre-nuptial or post-nuptial agreement aside. If the agreement is set aside a spouse would still be entitled to their elective share.

Protecting Your Rights

Spouses as well as other beneficiaries to estates should make sure their rights are protected. Should it become necessary to take legal action to protect your rights, to see to it you receive the appropriate distribution in the Estate or to challenge some aspects of an estate proceeding, it is important that you retain a law firm with extensive experience in estate matters to represent you.

The law office of Schlissel DeCorpo LLP has more than 30 years of experience litigating a variety of estate issues. Our law firm administrates estates, protects beneficiaries, deals with issues of spousal rights of election and all other issues involving estate matters. Our firm has an extensive history of successfully recovering assets for our clients. Contact us to learn why we are the estate attorneys that can help you at 800-344-6431 or e-mail us at Elliot@sdny.com.

Guardianship Attorney

elder care attorney medicaidGuardianship, in the State of New York, refers to proceedings to help individuals who are either in declining health, are unable to take care of their personal needs and/or financial needs, or who have been taken advantage of by third parties, fraudsters, friends, neighbors, or other loved ones. The purpose of a guardianship proceeding is to help a senior, a debilitated person or a special person deal with their personal and financial needs and see to it they are not taken advantage of. In cases where there have been inappropriate transfers, violations of powers of attorney, or where the individuals were simply taken advantage of financially, a guardianship proceeding can be utilized to protect the rights of these individuals. Assets taken through fraud, duress, or undue influence can be returned to their rightful owner through legal action.

Expedited Guardianship Proceedings

Sometimes friends, family members and other loved ones find the senior or special person has an emergency situation which requires immediate action. In these cases, expedited proceedings can be brought for the appointment of a guardian either of the person or of the property of this individual.

Two Types of Guardianships

Guardianships for senior citizens are brought under Article 81 of the New York Mental Hygiene Law. These guardianships are brought in the Supreme Courts of the county where the individual resides.

Guardians for special individuals can also be brought under Article 17(a) of the New York Surrogate’s Court Procedure Act. These types of guardianships are brought in the Surrogate’s Court of the county where the individual resides.

Helping Seniors

Helping another who can’t help themselves is an altruistic course of action. Helping a sick individual, infirm individual, or mentally challenged individual protect their assets and their health and well-being requires the skill and attention of dedicated attorneys with experience in these matters. The guardianship lawyers at the Law Offices of Schlissel DeCorpo have more than 100 years of combined experience helping clients with these types of cases. For more than 30 years, our attorneys have helped seniors, special individuals and their families with regard to guardianship proceedings.

elder law attorney on long island Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. Elliot and his associate attorneys maintain a sophisticated practice bringing numerous guardianship proceedings each year. He can be reached for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Running Out of Money in Retirement

retirement planning for seniorsRetirement is supposed to be the golden years. However, today the issue of how much money you need in retirement is becoming a much more complex issue. Although it is important to save for retirement, you shouldn’t scrimp and deprive yourself for a retirement that may never happen. The big problem is running out of money while you are retired.

How Much Do I Need?

To start with, you must take into consideration what your financial assets are. Then you must develop a plan that is practical with regard to an individual or family with your assets.

On the other side of the balance sheet you must look into what your income will be in retirement. Do you have annuities? Do you have a pension? Do you have a 401(k) you can draw from? Will your only income be from Social Security benefits and returns on retirement investments?

If your living expenses during the term of your retirement are greater than your income, the only way of making ends meet is to draw down the principal of your savings and investments.

What Type of Investments?

Investing for long term income is the approach you should take with regard to retirement planning. This means you should avoid speculative investments. I suggest that you invest approximately 60-70% of your assets in income producing investments and the balance in dividend paying blue chip stock.

You should not assume that your investments will produce a seven, eight, nine or ten percent return. You should use a very conservative number of either a four or five percent total return on investments.

The Length of Your Retirement

Traditionally, Americans had been retiring between ages sixty and sixty-five. However, with greater life expectancy and smaller amounts of savings, many Americans are considering retiring at much older ages. If you retire at sixty-five you must take into consideration that you have enough assets to last you twenty-five or thirty years. However, if you retire at an older age, the term of your retirement will be shorter and the length of the payout in your investments will be shorter.

Investment Scams

There are tricksters and scam artists who prey on senior citizens. Be careful with regard to investment advisors who promise high investment returns. If you are not sophisticated with regard to investments, you should find a well thought of investment advisor to help you. You should counterbalance the suggestions from your investment advisor with a certified public accountant.

Investing for retirement can be difficult. Hopefully you will be successful in accumulating enough money and investing it properly to actually have those golden years in retirement.

assistance in elder care planningElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He assists his clients in all types of elder care issues related to medicaid planning, drafting wills and assisting the clients and their family members regarding probating of wills.

President Obama Orders the Creation of New Retirement Accounts

elder law attorneyOn Wednesday, January 29, 2014, President Obama gave his State of the Union address. During the course of his address, he ordered that a new type of employer sponsored saving account be created for the purpose of helping people save for retirement. The President suggested creating this new class of retirement saving account would help middle class Americans bridge the growing income equality gap.

Starter Retirement Savings Program

The new saving program created by President Obama is called the “MyRA”. The name mimics the Individual Retirement Account (IRAs) that first came into existence to help Americans save for retirement in the 1970s. These new accounts operate similar to the Roth Individual Retirement Accounts (Roth IRAs). Married couples with adjusted gross incomes of up to $191,000 and individuals with incomes up to $129,000 will be able to put away $15,000 in after tax dollars for a maximum of 30 years.

Currently the Roth IRAs will allow working individuals to save up to $5,500 per year, or if they are over 50 in 2014 $6,500 per year. Contributions can be withdrawn tax free.

The MyRA funds are subject to being withdrawn at any time without paying an income tax penalty. However, if the money is removed from the MyRA said funds will be subject to the same restrictions that currently exist for Roth IRAs.

Investment Options for the MyRA

There will only be one investment option for the MyRA. The United States Treasury is going to create a security fund modeled after the Federal Employees Thrift Savings Plan Government Securities Fund. This fund will have a variable rate of interest return on the funds deposited in it. This will prevent any individuals making deposits in the MyRA avoid losing any money maintained in this retirement plan.

The purpose of the MyRA is to allow lower income Americans to accumulate up to $15,000 towards retirement. Although this is not a significant amount of retirement assets, it is a start in the right direction.

estate planning assistanceElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He drafts wills and trusts and handles estate and probate matters for clients.

Juvenile Delinquency Proceedings Dismissed

A juvenile delinquency proceeding was brought before Judge Joan Posner sitting in the Family Court of Dutchess County. The presentment agency had brought a petition against a minor named Jared J.P. The allegations were that Jared had committed acts which constituted an attempted assault and the crime of menacing if he were charged as an adult. They sought to have Jared adjudicated as a juvenile delinquent.

Jared was represented by a court appointed guardian ad litem in this proceeding. The guardian ad litem requested the court dismiss the case against Jared in the interest of justice.

Jared Was Autistic

The allegations were that Jared, who was 16 years old, had been diagnosed with autism and additional mental illnesses. This diagnosis was initially made when he was 7 years old. The court appointed guardian ad litem for Jared claimed since the incident took place, he had been in a residential therapeutic educational institution. While at this residential facility his conduct had improved dramatically. In addition, it was pointed out by Jared’s attorney his family would not cooperate with regard to his prosecution. They did not want to traumatize his brothers and sisters and grandmother by forcing them to testify at trial.

A Finding of Juvenile Delinquency Would Serve No Purpose

Judge Posner rendered a decision dismissing the juvenile delinquency petition brought by the presentment agency. In her decision she stated finding Jared was a juvenile delinquent would not serve a useful purpose. In fact, she held it would be an injustice to punish Jared. Judge Posner found it was in Jared’s best interests he should remain at the residential therapeutic educational facility and it was not necessary for the court to take any further action on this case.

legal help for people who have been arrestedThe Law Offices of Schlissel DeCorpo has extensive experience in representing minors with regard to Family Court proceedings concerning juvenile delinquency issues and criminal proceedings brought in the Criminal Courts against minors throughout the Metropolitan New York area.

Foreclosure Action Stopped by Death

Nettie Francis had executed a mortgage. The holder of the mortgage brought a foreclosure lawsuit against her. In May of 2010, the court had declined to sign a proposed judgement of foreclosure and sale. The court took this action because there had not been a submission of an order showing the mandatory residential foreclosure court conference had been held in the case.

Husband Seeks to be Named Administrator of Wife’s Estate

In July 2010, Nettie died. Nettie’s husband brought an action to intervene in the case. In this proceeding he submitted, to the court, a death certificate proving Nettie died in July 2010. His paperwork also showed since her death he had been taking care of the home. He indicated in his motion he was in the process of bringing an application in the Surrogate’s Court to be appointed the administrator of Nettie’s estate. He brought this action as an intervenor to be named a defendant in the foreclosure lawsuit.

Counsel for the financial institution argued against Nettie’s husband being allowed to intervene in the lawsuit. He claimed this application didn’t set forth a claim or defense for which the intervention in the suit was sought. He also claimed the motion being made by the husband was not made in a timely basis.

Supreme Court Justice Robert McDonald sitting in Queens County held the death of a party divested the court of jurisdiction. Upon Nettie’s death the proceedings were automatically stayed. The proceedings could not proceed without the substitution of a personal representative or an executor for the deceased party.foreclosure advocate

Spousal Refusal And Medicaid Planning

elder care attorney medicaidIn the States of Connecticut, Florida and New York spousal refusal to pay for a spouse’s medical expenses can be an acceptable Medicaid planning technique. The spouse of an individual who goes into a nursing home and applies for Medicaid is referred to as the “community spouse.” This spouse can keep approximately $3000 a month of the family’s combined income. In addition the community spouse can keep about $100,000 in assets which is referred to in Medicaid jargon as “resources.” Exempt assets such as car and the home the parties reside in are not included. The spouse that is going to go into the nursing facility is referred to as the “institutionalized spouse.”

$3000 A Month Is Not Enough

In a situation where the community spouse cannot live on the $3000 a month which is exempt from Medicaid, spousal refusal becomes an important option. The first step is the moving of assets from being held jointly to being solely in the name of the community spouse. An elder care attorney can prepare a document indicating the community spouse is refusing to contribute his or her income and assets to the care of the institutionalized spouse. The document provides reasons for the community spouse needing more than $3000 a month to live on. If the community spouse exercises spousal refusal and then meets other requirements to qualify for Medicaid benefits, the New York State benefit program must pay the expenses for the institutionalized spouse.

Department of Social Services Suing Community Spouse

The Department of Social Services can institute a law suit against the community spouse to recover all of the expenses paid by Medicaid. The purpose of the law suit is to force the community spouse to reimburse the Department of Social Services. So why should a community spouse risk this law suit? There are good reasons for this. To start with there is no guarantee the Department of Social Services will be successful in the law suit. Even if the Department of Social Services is winning the law suit, these law suits are often settled for less than the entire amount which is due and owing. In the event the Department of Social Services is successful in the law suit, it may only obtain payment for the Medicaid reimbursement rate and not for the much higher private pay rate the institution would charge for taking care of the institutionalized spouse. The private pay rate is usually $3000 to $5000 a month higher than the reimbursement rate for Medicaid.

Elder Care Planning: The Best Route

The first option should be to purchase long term care insurance. If this is not a viable option, the next best way to deal with elder care related issues concerning Medicaid is to hire an elder care lawyer to prepare an irrevocable MAPT trust at least five years before any potential need for Medicaid benefits.

elder care planning and medicaid

Retirement Problems

estate planning lawyerDo you have enough money to retire? This is a question baby boomers are starting to think about. How much money do you need before you retire? What is the best way to plan for retirement?

When Should You Start Saving?

Experts agree that you should start saving for your retirement as early as possible. The longer you defer putting aside money in a 401(K), IRA or through a pension plan the less likely that you’ll have sufficient funds to last during the term of your retirement.

Medicare and Medical Expenses

Medicare will not be sufficient to cover your medical expenses during retirement. A study by Fidelity Investments found a 65 year old couple retiring in 2012 would need to spend $240,000 to cover their medical expenses during the time of their retirement. If you retire at 65, you will need to set aside a quarter million dollars just for medical expenses!

Maintaining Your Standard of Living In Retirement

Baby boomers facing retirement often receive mailings from retirement communities showing retirees living the good life. The question is, how much does the good life cost? Will it be cheaper to live the good life in your senior years than you’re living expenses were when you were working? Studies show you will need approximately 75 to 80% of the income you had a while you were working to maintain your lifestyle in retirement. When you are retired you will have more time available to go on vacations and you may find that the good life is not inexpensive.

Should You Wait To Retire?

Now that Americans are living longer, should they consider 65 a reasonable retirement age or should they wait until their 70 or older to retire? Many Americans working for large corporations are deprived of the choice of working through their sixties into their seventies. Large corporations tend to push older employees out by offering them incentives and other packages. Should you lose your job when you are 55 or 60 years of age, you will find many employers are reluctant to hire older Americans.

Conclusion

Be careful when you retire. You don’t want to outlive your money!

About the Author

prepares and litigates wills and trustsElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He assists seniors with regard to wills, litigation, Medicaid issues and estate litigation.

Trust Documents Declared Void Due to Lack of Mental Capacity

estates and trusts attorneyIn a case before Robert Gigante, sitting in Richmond County, New York, the Surrogate Judge had set aside a trust based on the lack of mental capacity of the individual who executed the trust. One of the decedent’s children contacted a lawyer and requested the trust document to be drafted. The lawyer drafted the documents pursuant to the request of the decedent’s child. However, the lawyer never met or spoke with the decedent. The lawyer relied on the child’s statements and a letter from a physician stating the decedent was “in an acceptable mental status.”

The court took the position there were questions as to whether the decedent could understand the terms and the conditions of the trust. A hearing was held. A doctor testified he didn’t believe the decedent could read and understand a sales contract. In its decision, the court stated no rebuttal testimony or evidence challenging the doctor’s conclusions was submitted to the court.

The court found the decedent lacked the requisite mental capacity necessary for the purpose of executing the trust. The court therefore set aside the trust.

About the Author

surrogates court helpElliot S. Schlissel, Esq. is a member of the National Academy of Elder Law Attorneys. He represents individuals in will contests, litigation regarding trusts and all other estate related matters. He offers free consultations to his clients.

The Right To Die

long island attorneyThere was a recent case in Long Island, New York concerning issues surrounding “the right to die.” Sungeon Grace Lee, age 28, decided her life was no longer worth living. She advised her doctors she wanted to end her life by cutting off the life support system keeping her alive. Her parents, who are deeply religious, vehemently opposed their daughter’s wishes

Tumor On Her Brain

Ms. Lee had a tumor on her brain stem. She had been suffering from seizures. During one of her seizures she was rushed to North Shore University Hospital in Manhasset, New York. The seizure left her paralyzed from the neck down. At that time, she was hooked up to a life support machine that allowed her to breathe.

Parent’s Sue To Keep Daughter Alive

Ms. Lee’s mother, Jin Ah Lee, and her father, Man Oh Lee, a Pastor of the Antioch Missionary church in Flushing, Queens, were both deeply religious people. They retained an attorney and obtained a restraining order preventing their daughter from ending her life. After protracted litigation, both the trial court and appellate court set aside the petition of Sungeon Lee’s parents. In their decision, the courts indicated that the daughter was competent to make her own medical decisions. However, in the end, Ms. Lee agreed to withdraw her request to be allowed to die and complied with her parents’ wishes.

Ms. Lee has been moved from North Shore University Hospital to her parents’ home where she is competently taken care of.

About The Author

elder care helpElliot S. Schlissel, Esq. is an Elder Law Attorney with more than 35 years of legal experience. He represents individuals concerning Medicaid planning, wills, trusts and estate matters, end of life issues and estate planning matters.

Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick, Bellmore

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