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.

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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.

Estate Planning Attorney – The Issues

Upon first contacting the estate attorney’s office it is suggested you make an inquiry as to whether there will be a free consultation or there will be a charge for the first office consultation. The purpose of the first estate planning meeting will be to obtain information and guidance with regard to your family’s situation. It is helpful if a specific plan can be outlined to deal with you and your family’s financial and legal issues.

Wills and Trusts

You may decide after your initial consultation you need a variety of estate planning documents. You should be aware of tax laws and other laws concerning estate matters periodically change and you should follow up with your attorney every few years to make sure your estate planning documents are accurate and up-to-date. Make sure the law firm you retain is in business for a considerable period of time and will be available in the future to help you and your family with your pressing legal needs.

Estate and Retirement Planning

As you move closer to retirement you should have your attorney review retirement related documents you are presented with that relate to financial issues. You should have discussions with your attorney with regard to seeing to it your assets are properly passed to your children or other loved ones. Different techniques can be used to avoid taxation of your assets when they pass from one generation to the next.


If you have accumulated assets during your lifetime you should be careful to see to it that they will be properly received by your heirs and loved ones in a simple non-complicated manner that does not place a burden on your family members after your death.

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

VIDEO: Guardianships

On today’s video blog Elliot discusses the topic of Guardianships.

VIDEO: Is a Revocable Trust or an Irrevocable Trust Right For You

Do Your Debts Die With You?


To start with your debts don’t die with you. They survive your death. If you have a Will the obligation to deal with your debts falls upon your executor after the Will is probated. If you have no Will an administration proceeding can be brought by the next of kin to appoint someone to handle your affairs.

Most Americans Die with Debts

If after you die your debts aren’t paid it will have a negative impact on your credit rating. But of course you won’t care about that because you will be dead! If you have assets your creditors can file a claim in your estate proceedings against the assets. In estate proceedings debts are paid before there is distribution of the assets to beneficiaries in a Will or next of kin in an administration proceeding.

Credit Card Debts

There is a statute called the Credit Card Act of 2009. This requires credit card companies to notify the estate quickly with regard to any debts of the deceased. The statute also prevents credit card companies from assessing additional fees of penalties while the estate proceedings are pending. There are situations where there are not enough liquid assets to pay the credit cards. In these cases the credit card companies may contact family members and request they pay the balance of the credit card debt. Be advised unless a family member has co-signed for the credit card, there is no obligation to pay these debts and family members will not be held liable by the credit card companies for these debts.

Unpaid Loans

If you have student loans which are pursuant to a federally backed student loan program these loans will be discharged upon your death. Private loans do not become discharged in the event of your death. Banks and other financial institutions will request payment from your estate. If there are no liquid assets to pay these debts from your estate and there is a co-signer on the loan they will go after the co-signer to pay the debt.

Mortgages and Car Loans

Mortgages and car loans are considered secured debts. The mortgage is secured by the home and the car loan is secured by the vehicle. In the event these types of loans are not paid the creditor can take legal action to repossess the car and foreclose on the house.

Doctors and Hospital Debts

Money owed to hospitals and/or medical providers are not discharged at the time of your death. These unpaid bills may become a lien against your estate. If there is a co-signer for these debts, the co-signer will be obligated to pay these debts upon your death.

Family Members Pressured to Pay Debts

Attorney Elliot Schlissel

Sometimes collection agencies and their telephone collectors seek to put pressure on family members to pay deceased relatives debts. Be advised, unless you co-sign for a loan you are not responsible to pay the debt of a deceased family member.,

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