VIDEO: What’s Involved in Preparing A Will in New York?

Elliot Schlissel discusses what is involved in preparing a will in New York.

Contesting A Will

Contesting a Will

There are a variety of reasons or grounds to contest a will. Will contests often take place when there are blended families. Second families as a result of second marriages often complicate issues in estates.

Wills Need to be Properly Executed

New York has very specific requirements with regard to the preparation and execution of a will. The will must be signed by the person making the will at the end. It must be witnessed by at least two (2) witnesses who sign the will at the end of the document. The failure to have the will properly executed by the individual making the will and two (2) witnesses is a grounds for challenging the will. The will also must be clear and precise as to who receives the assets of the maker of the will.

Not Competent to Make a Will

The person writing the will must have testamentary capacity. If he or she is delusional, senile, of unsound mind or doesn’t know what he or she is doing at the time the will is written, there is a basis for setting the will aside. To make a valid will the person making the will must understand the nature and extent of his or her assets, who his or her children are, who their next of kin are and what they are doing when they execute the will.

Fraud, Duress and Undue Influence

The person making the will needs to have independent ability to make decisions concerning who will receive his or her assets. If an individual is coerced or compelled to execute a wilI the will can be set aside. Proving fraud, duress and/or undue influence requires a lot of legal skill and specific knowledge of the laws concerning contested wills.

Difficulty in Setting a Will Aside

Elliot Schlissel

If someone seeks to probate a will, if the will is properly executed, there is presumption the will is valid. Challenging a will means proving to a court the will is either improperly executed, the maker of the will is mentally incompetent or there was fraud, duress or undue influence. The burden of proof to set aside a will falls upon the individuals challenging the will. It should be pointed out the large majority of wills submitted to probate are accepted by the court and only a very small minority are set aside in contested probate cases.

The law offices of Schlissel DeCorpo LLP for more than 30 years have been probating wills and litigating will contests. Our office offers free consultations and we have offices in Queens, Nassau and Suffolk Counties and we can be reached at: 516-561-6645, 631-319-8262 and 718-350-2801. You can e-mail me at: Elliot@sdnylaw.com.

Protecting Beneficiary Rights

Protecting Beneficiary

A family member of yours has died. You are now wondering whether you are going to inherit from this individual. What do you do to protect your rights? The laws in the State of New York protect the rights of beneficiaries. If the beneficiary’s rights are violated he or she can take the appropriate legal action to see to it they receive the inheritance they are entitled to. The estate administration process can be a complicated long, drawn out court proceeding.

Problems Among Family Members

Estate matters can result in difficult personal issues among family members. If you are denied assets which were promised to you by a loved one before he or she died, legal action may be necessary to protect your interests. It is extremely important if you have not received the inheritance that was anticipated that you contact an estates attorney as soon as possible. There are a variety of time limitations built into the laws in the State of New York to take the appropriate legal action to protect beneficiary rights. If those time limitations have expired you may not be able to pursue the inheritance that pyou are entitled to.

The Probate Process

Attorney Elliot Schlissel

The purpose of the probate process is for the court to test the legitimacy of a will. The probate process involves the determination regarding who are the appropriate beneficiaries to inherit the estate. An individual who received notice of the probate proceeding who believes his or her rights have been violated must take legal action during the course of the probate process if they wish to have a judge deal with their contentions. There are many issues which can be brought to the court’s attention during the probate process including issues involving whether the executor is an honest appropriate person to be appointed to handle the administration of the estate.

Contact Us

Should you have questions on an estate matter feel free to contact our law office for a free consultation. We can be reached at our Nassau, Queens and Suffolk offices at 516-561-6645, 718-350-2802 or 631-319-8262. We can also be e-mailed at Elliot@sdnylaw.com.

What is Probate?

What is Probate?

Probating a will means bringing an action in the Surrogate’s Court in the county where the individual died to establish the validity of a decedent’s will. The probate process involves the distribution of the estate assets pursuant to the terms of the Last Will and Testament of the decedent. The probate process in New York is not a simple process. The process is designed to see to it that the wishes of the decedent are carried out. Should there be disagreements among the beneficiaries or heirs of the decedent, the probate process becomes even more difficult.

The Probate Process

The probate process involves preparation of petitions to the court. The original will need to be filed with the court as part of the probate petition. The proposed executor who is probating the will obtains from the court a return date for the probate petition. The next of kin and/or the beneficiaries to the will need to be served with the probate petition prior to the return date of the petition in court. On the return date of the petition in court individuals who seek to challenge the will can advise the judge of their position. If the will isn’t challenged, an order is submitted to the court appointing the executor

Executor’s Duties.

Once the executor is appointed he or she first gathers the assets and then liquidates them. Thereafter the executor ascertains who the creditors of the estate are and pays the creditors. Seven (7) months after probate of the will, the executor can start making distributions of assets stated in the will to the named beneficiaries. At the time beneficiaries are to receive their distributions they are usually requested to sign a receipt and release which indicates the executor has properly handled the estate proceeding and has made the appropriate distributions to the beneficiaries.

Conclusion

Attorney Elliot Schlissel

The probate process which is designed to see to it that beneficiaries in estates are treated fairly is not a simple process in the State of New York. Whether you are an executor, beneficiary or someone seeking to challenge the will it is strongly recommended you hire an estates attorney to protect your rights.

Elliot S. Schlissel has been representing executors, administrators, beneficiaries and potential beneficiaries in estate cases throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or Elliot@sdnylaw.com

VIDEO: Medicaid Planning And Long Term Care Issues

On today’s video Elliot discusses Medicaid Planning and other long term issues.

Probating a Will in New York

Signing Last Will and Testament

The probate process in New York is the legal procedure in which the assets of a person who is deceased gets distributed under court supervision. If the individual dies with a will the will will contain a clause naming an executor and if the executor is not available an alternative executor to supervise and control the probate process. If the individual dies without a will said individual’s spouse, a child or next of kin can bring an application to become the administrator of this deceased individual’s estate. Once appointed the executor or administrator of the estate has legal authority to organize, gather and value the assets of the decedent. In addition, he or she can pay bills, pay real estate taxes, federal and state income taxes and at the end of the estate process distribute the assets to the next of kin or the beneficiaries under the will.

Why Probate the Will?

The purpose of the probate process is to prevent fraud or improper actions regarding the assets of the decedent. It is the intent of the probate process to freeze the estate assets until a judge determines whether the will is a valid will and that all of the necessary individuals regarding the estate have been put on notice there are assets in the estate and they may have an interest in said assets. In addition, creditors must be notified and paid all taxes have to be paid before there can be distributions to the beneficiaries or the heirs of the estate.

Assets Not Part of the Estate

Bank accounts, investment accounts and other assets maintained in joint tenancy or in Attorney Elliot Schlisseljoint tenancy with rights of survivorship do not pass through the estate and/or probate process. In addition, accounts that have pay upon death designations or beneficiaries listed in them also do not pass through probate. Life insurance policies and most annuities are also dealt with outside the probate process.

Estate Problems

Should you have questions or issues regarding estate matters you can reach the law office of Schlissel DeCorpo LLP for a free consultation at any of our offices to discuss these problems. Our phone numbers are 516-561-6645, 718-350-2802 or 631-319-8262.

Happy Thanksgiving

Happy Thanksgiving

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Happy Halloween!

Guardianship of a Child with Special Needs

Picture of a courthouse

In the State of New York children are considered adults when they reach the age of 18. All children are considered legally competent and capable of making decisions for themselves independently at 18 years of age. However, if you have a child with special needs you may be aware your child’s disability may never allow him or her to be a legally competent adult. In the State of New York no matter how severe your child’s disability is, you will need to take legal action to have a guardian appointed for your child after they turn 18. In addition to parents appointing themselves as guardians of their children, it is also recommended they appoint successor guardians in the event of the parents’ disability or death. Successor guardians are an important component of the guardianship process because children generally outlive their parents.

Guardianship Proceedings in New York Surrogate’s Court

In the State of New York guardianship proceedings for children who turn 18 are usually brought in the Surrogate’s Courts. The procedure is pursuant to New York Surrogate’s Court Procedure Act 17-A. The parents must produce documentation of the disability of their child. This can be done by submitting affidavits from the child’s physicians. The application to the court must also explain to the court the child would not be in a position to manage his or her own affairs. After the application is brought to the court, the court appoints an attorney to the represent the child. This attorney will usually investigate the child’s circumstances and ascertain the truthfulness contained in the parents’ petition. The guardianship proceeding should be part of the planning for the child’s long term care. The guardianship application should be brought long before the child turns 18 years of age. Guardianships are not simple proceedings. It is highly recommended that you retain a guardianship law firm familiar with the needs of special needs children to represent you in these proceedings.

Medicaid Planning – Long Term Care Issues

Gavel & A Law Book

Growing old has its benefits. You get to see your grown children, friends and family members for a long period of time. You tend to grow wiser and more sophisticated with regard to lifestyle matters and the future of your family. However, a significant portion of seniors at some point in their lives require long term care. They will either require the assistance of home healthcare aides in their home or assistance in a nursing home or other type of senior facility.

Issues concerning long term care are complicated. They also involve significant expenses. To stay in a nursing home in the State of New York cost approximately $200,000.00 per year. You should not ignore issues involving long term care.

Medicaid Eligibility

Medicaid is the only long term care program which is publicly funded. However there are very strict eligibility limits. In order to qualify for Medicaid an individual may need to spend down a portion of his or her assets to fall within the Medicaid eligibility limits. There are a variety of techniques that can be used to help you qualify for Medicaid long term care. These involve gifting programs, trusts, spousal refusal and a variety of other Medicaid planning techniques.

Becoming eligible for Medicaid is a complex process. This process also changes on a year to year basis. In addition to only having a certain amount of assets at the time you apply for Medicaid, Medicaid also has a “look back” period. During this 5 year look back period certain transfers of assets will be subject to a penalty under the Medicaid Law. It may be in your interest to consult with an elder law attorney to see if there is a manner in which you can avoid spending your assets and still qualifying for Medicaid.

Too Much Assets

If you have more assets than is allowed by Medicaid and you enter a nursing home you will be on a private pay basis. You will have to pay for the nursing home expenses until you meet the Medicaid eligibility level for Medicaid coverage. Medicaid does not include your home in its calculations. However, Medicaid can bill your estate for your medical care after you die.

Medicaid Eligibility

You don’t have to spend all of your assets to meet the “spend down” requirements of Medicaid. The appropriate estate planning techniques used by elder care attorneys can help you preserve your assets so they can be inherited by future generations as well as meet the Medicaid eligibility requirements.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys representing seniors throughout the Metropolitan New York area.

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