What Qualifies as a Probate Asset in NY

Probate is a legal process after someone passes away to collect the property and assets of the individual. The first debt is paid and then assets are distributed to the beneficiary according to the will. But figuring out which assets are included in a NY probate estate is sometimes not so easy. For medium to large estates, a local probate attorney in NY is often needed to streamline the probate process to only include assets that actually can go through probate. For smaller estates, under a certain threshold ($50,000) probate can also be skipped depending on how the assets are calculated.

What assets are included in probate estate in NY

Many assets which are singularly owned by the individual can go through probate but if an asset is jointly owned or held in a trust that it is not considered a probate asset. Some of the most common assets are bank accounts, stocks, bonds, cars and even real estate.

Assets not included probate estate in NY

But some of the assets not included in probate include property owned in a living trust, life insurance, 401ks and transfer on death accounts. These assets not included in a probate estate in NY are typically passed directly to the beneficiary or the joint owner upon receiving the death certificate. These assets are also not included in the probate petition and are not used to calculate the filing fee.

If all the assets are not included in the probate estate due to the fact they are jointly owned or other qualifying reasons then the NY court will not be involved. Careful planning is required in advance to legally classify and protect assets to avoid the lengthy probate process and set up joint ownership or a trust.


Get a free consultation with the local estate planning experts at:

Roman Aminov Esq. Estate, Probate & Elder Law of Queens 147-17 Union Tpke, Queens, NY 11367 (347) 766-2685 https://www.aminovlaw.com/

Medicaid Planning: Irrevocable Medicaid Trust

It is necessary to understand the different planning strategies which allow seniors to obtain benefits while protecting their assets for their beneficiaries. While long-term care insurance is the best option, it is not always an option. That is why most Medicaid Trust Lawyers in New York use another technique;  an irrevocable Medicaid trust which can have various benefits both during life and after death.

Benefits throughout life

Planning a Medicaid trust in NY  involved transferring assets, including real estate, into an Irrevocable Medicaid Trust.

There are certain benefits to this kind of trust including:

  1.  The right to remain in the home as long as you and your spouse are alive.
  2.  The right to make the trust “income only” and collect any rent the property generates.
  3.  The ability to keep your existing STAR and Enhanced STAR property tax relief as long as you reside in the home.
  4. The right to use the $250,000 (if single) or $500,000 (if married) capital gains tax exclusion if the home is sold during your life.
  5. When homes are placed in a trust your beneficiary can be protected from creditors.
  6. Changes can also be made during your lifetime

Benefits After Death

After both spouses have passed away the trust will distribute assets according to their predetermined wishes. By writing a will you can reference the trust the right is retained during life to change the beneficiaries. So this means the right of control is not forfeited. This means a home can receive a step-up tax basis, saving the heirs from paying capital gains when the home is sold. 

Probate can also be avoided which saves both the time and money of the beneficiaries. One of the reasons you might want to avoid probate is the Medicaid estate recovery which means the Medicaid program can claim back what was paid after death.

Working with a Medicard lawyer is the best way to ensure you, your assets and your beneficiaries are protected.


Get a free consultation with the local estate planning experts at:

Roman Aminov Esq. Estate, Probate & Elder Law of Queens 147-17 Union Tpke, Queens, NY 11367 (347) 766-2685 https://www.aminovlaw.com/

Do Surviving Spouses have Rights?

What is Spousal Election & Protection?

Spousal right of election in New York is a law where a surviving spouse is entitled to receive up to $50,000 or 1/3 of the total assets value from their spouse, even if they were left less than that under a will and beneficiary designations. As defined in the New York’s Spousal Right of Election NY laws you can be protected if you act quickly and work with an experienced estate attorney. Let’s take a look at a few cases of how the law can be used in your favor

Case 1: Need to know facts of case 1: Beneficiary Designations

  1. The couple was separated for several years before one spouse passed away.
  2. The family of the deceased individual claimed the spouse abandoned the now deceased spouse and forfeited their rights to spousal right of election
  3. A petition was filed to the surrogate court in NY asking to rule that the surviving spouse has a right to ⅓ of the estate value

After finally arriving at court the family continued to maintain their original position and they wanted to take the case to trial. But after dedicated negotiations, the case was settled for nearly the exact amount of the value of ⅓ of the estate. Without any risk of the expense of going to travel, which can be very costly.

Case 2: Need to know facts of case 2: Investment Property

  1. A spouse passed away leaving the surviving spouse everything except investment property.
  2. The surviving spouse was not sure if they were entitled to more
  3. Even though there was a will which declared the above facts, it was discovered that this was only 1.5 of the value of the estate with the exclusion of the investment property. And as we know there is a legal right of ⅓.
  4. The other beneficiary of the investment property was required to redistribute the remaining value to equal ⅓ of the total value to the surviving spouse.

Knowing your rights can be complicated especially when all the facts of the case are considered, but choosing a top rated estate law firm in NY can help you to make the process easier and less expensive.


Get a free consultation with the local estate planning experts at:

Roman Aminov Esq. Estate, Probate & Elder Law of Queens 147-17 Union Tpke, Queens, NY 11367 (347) 766-2685 https://www.aminovlaw.com/

How To Protect Your Assets From Medicaid

Applying for Medicaid in NY certainly comes with its pros and cons. Many elderly people are concerned that Medicaid may try to take their home (or other assets) after their death. And if they have children, grandchildren or family members they wish to leave assets too it can be very concerning. If you are worried about protecting your assets from Medicaid in your old age or after passing then a NY elder law attorney can help with planning.

Medicaid is divided into two general categories: 

  • Institutional, which includes nursing home and intermediate care facilities
  • Community-based which includes all the other services Medicaid provides including home care and insurance. 

Understanding these two categories are one of the major factors taken into consideration regarding assets along with age and family situation.

Medicaid is required to place a lien on your home if:

  • Are receiving nursing home care
  • are considered a permanently institutionalized individual (will not return home)
  • Own your home

In these cases when the property is eventually sold the lien must be paid in full before the beneficiaries receive any assets or funds.

But there are certain exceptions to this rule including:

  • If certain qualifying family members are residing in the home including a spouse, child under 18, or a child of any age who is blind or disabled the lien cannot be placed.
  • If you return home after being a permanently institutionalized individual,  Medicaid must remove the lien. 
  • Prior to initiating a lien against your home, Medicaid allows you to transfer your home to the children under 18, spouses or any blind or disabled child of any age

Probate and Medicaid

If Medicaid is providing you with various types of medical care it is possible they will try to reclaim the value of their payout from your estate that is in probate. This is called Estate Recovery and there are certain ways to protect yourself from it. 

But it is possible to protect your home from probate since Medicaid goes after assets included in probate.

Next, they can only recover payments paid after your 55th birthday. They can only recover up to 10 years’ worth of benefits from the day of death. And lastly, Medicaid can not recover any payment if you have a living spouse, a child less than 21 years old or a disabled or blind child of any age. 

What type of trust protects assets from Medicaid?

An income only Medicaid trust is one of several methods an experienced elder law attorney can use to help protect your home.


Get a free consultation with the local estate planning experts at:

Roman Aminov Esq. Estate, Probate & Elder Law of Queens 147-17 Union Tpke, Queens, NY 11367 (347) 766-2685 https://www.aminovlaw.com/

Why is a living trust important in NY

Will Vs Trust

A will is a legal document created to name certain assets and wishes of an individual after death. It can name beneficiaries, transfer assets. A will goes through probate after death to determine its authenticity and then execute the will according to what it says. It is only active after the person has passed away

A trust can be similar in many ways but it creates a fiduciary relationship to allow another individual to be responsible for handling assets on behalf of the beneficiaries. The Living trust is created during the lifetime of the individual, What makes the living trust so attractive is it allows for an easy transfer to the beneficiaries while many times avoiding probate which can be lengthy and expensive.

What are the benefits of a Living Trust in NY?

  1. A living trust gives a very high level of control. It allows you to determine, who, what, when, where and why and with proper planning with the help of an estate attorney can be done seamlessly
  1. A living trust saves time. Especially when compared to a will (or worse having no will at all) a living trust is a huge time saver. The probate process creates exposure for relatives to challenge the will which can disrupt the initial plans and also drags the process on and on.
  1. A living will can allow you to save money. In the state of New York, a Surrogate Court reviews the will and how assets will be distributed. Assets that are transferred through a living trust skip the NY Surrogate Courts, probate, and additional legal fees.
  1. If you are incapacitated due to a decline in the health of an injury a living trust allows your wishes to be carried out. A legally sound living trust is difficult to challenge or to be abused and your wishes as initially planned will be carried out both during your lifetime and after.

Living Trust can be an excellent estate planning tool and consulting with a local estate planning lawyer in NY is the best way to have one created according to your requirements.


Get a free consultation with the local estate planning experts at:

Roman Aminov Esq. Estate, Probate & Elder Law of Queens 147-17 Union Tpke, Queens, NY 11367 (347) 766-2685 https://www.aminovlaw.com/

The Benefits of Creating a Will in New York

As a New York resident creating a will can be one of the most important decisions of your life. 

But first, how can you make a will?

When you create a will you must be in good health and recognize what you are doing. It can be edited as well but an experienced estate attorney can help to advise you on the details.

A legal will can only be made by someone who is at least 18 years old. If you are married or in a domestic partnership, your spouse or domestic partner must sign it. If you are not married, in a domestic partnership, or the father of the child being named as a beneficiary you need to have someone 18 years old who is willing to sign as a witness.

Benefits:

  1. The main benefit of creating a will is that it gives individuals the ability to leave property and possessions to the people of their choice. An individual who dies without a will is considered to have died intestate. An intestate estate can be a nightmare for family members to deal with because of the lengthy court process that is involved in these cases. Before a will is accepted it must go through the process called probate, to authenticate it and ensure it is valid according to the law.
  2. You can also name a legal guardian for your children in your will. This can help to spare your children from being separated from each other if their legal guardian predeceases them. If you have a spouse or immediate family you cannot always assume that they will automatically gain guardianship of your minor children. Many complications can arise if there are divorces, step parents, or other active adults in the children life
  3. Preventing unnecessary estate taxes. An estate tax is a tax in New York that requires your estate to pay a certain percentage of what you leave behind when you die. Not only can it be a lot of money but it can cause the probate process to go longer to ensure all taxes and debts are paid, but having a will can simplify this process.
  4. Preventing your estate from being contested can also be avoided with a will. Imagine if there was no will left behind, how will your loved ones determine who handles which aspect of your estate. Even aside from inheritance, there are many matters like closing down bank accounts, receiving unpaid bills, and all of these responsibilities can be assigned in a will.

 


To get help with creating a will, living trust, power or attorney or anything else contact:

Law Offices Of Roman Aminov 147-17 Union Tpke, Queens, NY 11367 (347) 766-2685 https://www.aminovlaw.com/queens-ny-estate-lawyer

Benefits of Setting Up A Medicaid Trust In Queens

Long term medical care and end of life care consume easily the largest medical expenditures in your life. Planning for these expenses takes time and careful consideration.

There are long term care insurance policies that you can start paying, and like any insurance the earlier you start the cheaper it will be. But the biggest issue is that it can be expensive, very expensive. You can easily end up digging into your assets that you were trying to protect and leaving your loved ones even less.

A far cheaper option is to create a Medicaid Trust. No, a trust is not an easy thing easy to set up on your own, but with an experienced Queens elder law and estate attorney the trust can be no problem at all.

How does a Medicaid Trust work?

A Trust, in general, requires a settlor, who is the individual transferring their own assets into the possession of the trust.

A trust, unlike corporations, has no shareholders and is considered its own owner. Once the assets are in the trust, they are not considered for taxes and eligibility qualifications for Medicaid.

A trustee is a third party who is responsible for carrying out the trust and managing it, with the ultimate goal of paying out the assets to a beneficiary, the person decided in advance to receive the assets, usually at a given time or after certain prerequisites are completed.

In the case of a Medicaid Trust. The elderly owners who plan to enter a nursing home are the ones that settle the trust (or create it). In order to comply with regulations, they must do it at least 5 years before the plan to benefit from Medicaid nursing home long term care.

The adult children in most cases are considered the beneficiaries (who will receive the money upon the death of the settlor). Local lawyers that specialize in Medicaid trust know all the guidelines and regulations surround trust so with their assistance they can be set up in no time.

What counts towards Medicaid long term care eligibility?

  • Bank accounts (i.e checking)
  • Investments (i.e Stocks)
  • CD investment
  • Any real estate other than your primary residence
  • Any cars above and beyond the first one.

This means that you can continue to own and drive your car, live in and own your home, have some minor cash funds, and keep some personal possessions. Other than that anything you might own can contribute towards disqualifying you from Medicaid.

A well-rounded estate attorney in Queens can also assist with protecting assets in wills, power of attorney, healthcare proxies, and more. Don’t wait to plan for your future!!


Sponsored by one of the finest probate and elder law lawyers we have in Queens NY, free consultation to anyone in our community:

Law Offices Of Roman Aminov 147-17 Union Tpke, Queens, NY 11367 (347) 766 2685 https://www.aminovlaw.com/queens-ny-estate-lawyer/