Special Needs Trusts Explained

estate planning lawyer in New YorkSpecial Needs Trusts are used to help family members, loved ones and friends who suffer from debilitating mental and physical problems. Special Needs Trusts are also referred to as Supplemental Needs Trusts. The purpose of these trusts is to set aside funds and other valuable assets to help mentally or physically disabled individuals live with comfort and dignity. The assets put into these trusts can be utilized by the disabled individuals while not creating any problem which jeopardizes them from receiving government benefits such as Medicaid and Social Security Disability. Some situations where these trusts are commonly utilized are where the beneficiary of the trust has received a large award from a medical malpractice case, a personal injury case, or through an inheritance. These trusts set up a procedure where a trustee is appointed. This trustee uses the funds in the trust to pay for expenses of the beneficiary of the trust. The beneficiary of the trust cannot have actual access to the trust funds.

Two Types of Special Needs Trusts

The first type of Special Needs Trust is called a First Party Supplemental Needs Trust. In this situation a family member, usually a parent, sets up the trust for a person who is mentally or physically handicapped and also under 65 years of age. After the death of the beneficiary, if the beneficiary had been receiving Medicaid, Medicaid has a right to recover the money paid to the beneficiary during the course of their lifetime for medical benefits from whatever funds still remain in the trust at the time of the beneficiary’s death.

Third Party Special Needs Trusts

A Third Party Special Needs Trust can be created for a special person at any age. This trust also protects the beneficiary’s rights to receive benefits such as Medicaid or Social Security Disability. With regard to this type of trust, when the beneficiary dies, the assets of the trust are distributed pursuant to the terms of the trust to the individual named as beneficiary in the trust. Medicaid cannot go after the assets in the trust to repay them for funds expended during the lifetime of the beneficiary of the trust.


The two types of Special Needs Trusts can help special individuals, disabled individuals and the chronically ill while allowing them to collect all applicable governmental benefits. These types of trusts have helped tens of thousands of Americans with medical or mental problems live happy, comfortable, fulfilling lives.trusts attorney on Long Island

Challenging a Will

estate planning lawyerWills can be challenged by potential heirs when they are of the opinion they have not received what they are entitled to from the estate of the decedent. Wills can also be challenged with regard to the handling of the administration of the estate by the executor.

The Probate Process

When an individual dies, the process whereby a court determines the validity and/or acceptability of the Will is called the probate process.  During a probate proceeding, a loved one or other heir can appear in court and challenge the Will. There has to be an appropriate statutory or case law basis for challenging the Will. The general feeling that the individual should have received a greater portion of the decedent’s assets is not sufficient to be successful in these proceedings. Some of the bases for challenging a Will are as follows:

  1. Lack of testamentary capacity. There is a requisite amount of mental acuity necessary for an individual to prepare a Will. Individuals who are on medication, have debilitating illnesses, or are suffering from Alzheimer’s, dementia, or other illnesses which affect one’s mental acuity at the time the Will is executed can be a basis for challenging the Will.
  2. Undue influence or fraud. In these situations the individuals challenging the Will can show that a caregiver or other individual exercised such dominion over the senior citizen that he or she did not have free will or ability to make an independent decision with regard to who would be the appropriate beneficiaries of his or her estate. The individual challenging the Will must show the decedent was tricked into making the Will or that his or her wishes are not what is written in the Will.
  3. The Will was not properly executed. New York State has very specific requirements with regard to the appropriate manner to prepare a Will, execute the Will, have the Will witnessed and signed by the decedent. The decedent has to acknowledge before the witnesses that this is his or her Will and it carries out his or her wishes. In cases where the Will was not properly executed or prepared by an attorney familiar with the appropriate statutory formalities concerning the execution of a Will, the Will can be challenged based on the failure to comply with the appropriate statutory execution provisions.
  4. The Will was forged. In cases involving forgeries the next of kin of the decedent must prove to a court that his or her signature on the Will is false and not that of the loved one who has passed away.

Determination in the Probate Process

During the course of the probate process, the court will entertain any of the aforementioned arguments concerning the validity of a Will and other arguments which are raised. The court can set the entire Will aside or just set a portion of the Will aside. Hopefully either you or other family members will not be forced to experience the difficulties involved in challenging a Will.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has represented individuals concerning Will contests throughout the New York area for more than 35 years.

Healthcare Proxy

estate planning lawyer in New YorkIt is suggested today that seniors living in America have healthcare proxies. A healthcare proxy allows an individual to designate another person to help him or her make decisions regarding healthcare in the event he or she becomes incapable of making those decisions. Healthcare proxies are designed to allow a person when they are cognizant of the potential issues they may face to authorize someone else to make decisions reflecting their wishes should they be incapacitated and unable to make those decisions on their own. These decisions deal with medical treatment and medical procedures.

The Principal

The person making the healthcare proxy is called the principal. The person the principal nominates to help him or her make decisions is called the agent. The principal can appoint one or more individuals to act as his or her agents. The way the law is set up in New York, the principal nominates one person to act as his or her agent and if that one person does not serve or cannot serve then a successor agent is authorized to serve.

Ultimate Decisions

The ultimate decision an agent makes with a healthcare proxy is whether to turn off a life support machine when it is certified by the principal’s physician that he or she is brain dead and will never be able to recover. These life support machines which are keeping bodies functioning for brain dead individuals are prolonging death and not prolonging life.estate planning attorney

Divorce’s Impact on Wills and Other Testamentary Devices

Let’s say you get divorced but you don’t modify your will or change your bank accounts. What happens at the time of your death if your ex-wife is the beneficiary of your will and other assets are held jointly with your ex-wife?

New York State Law

Under New York State Estate Powers and Trusts Law Section 5-1.4, unless a will expressly states otherwise, divorce, judicial separation or annulment of a marriage revokes all dispositions or appointments of property made by the divorced spouse to a former spouse. Your former spouse would be treated as if he or she died before you. This means that any clause which would have named your former spouse as a beneficiary under you Will is revoked.

In addition, if you are divorced, your ex-spouse also loses his or her rights to inherit from your bank accounts, life insurance policies, revokable trusts, and real estate interests involving joint tenancies.

Housekeeping Needed After Your Divorce

If you get divorced, it is important to go through all of your financial documents and records. Your ex-spouse’s name should be removed from being a beneficiary on your life insurance. You should also notify your health insurance carrier that he or she is no longer married to you. In addition, you should remove your spouse’s name from your bank accounts, securities accounts, and financial accounts of every type and nature. If you have a Will, you should meet with the attorney who drafted the Will and draft a new Will.

Between the attorneys fees involved in the divorce, the child support, spousal maintenance, and division of assets pursuant to the terms of the divorce, your net worth will be diminished. You should carefully review all of your financial assets to make sure that upon your death, your ex-wife will not be in a position to seek to try to inherit and possibly cause litigation. Even though if you don’t disinherit her, the statutes in New York cause her to be disinherited, it is still better to change the documents to avoid the potential complications and legal expenses.estate planning attorney

Handling An Estate in a Nutshell

estate administration attorneyAll human beings that live will eventually die.  When a loved one passes, dealing with his or her estate is not a task most people look forward to.  However, most people will, during the course of their lifetime, be involved with estate issues concerning a loved one.

When the grief passes, the issues involved are who are the heirs of the estate, what are the assets, how are they distributed, and what creditors need to be paid, become issues in the decedent’s estate.  If the individual dies with a Will, the process to validate the Will by the Court is called PROBATE.  If an individual dies without a Will, the process of determining who will inherit from his or her estate is called ADMINISTRATION.  If there is a Will, the Will will appoint an executor.  It will be the executor’s responsibility to hire an estates lawyer and to take the appropriate legal action regarding the estate.  If there is no Will, an individual who is next of kin to the decedent can ask to be appointed the administrator of the decedent’s estate.

Legal Work in the Estate

If you hire an attorney, he or she will draft a probate petition or a petition for the administration of the estate.  The petition will thereafter be filed in the Surrogate’s Court in the County in which the decedent was a resident of at the time of his or her death.

After the probate petition or administration petition is filed, next of kin and potential beneficiaries will be notified of a court date.  On that court date, any individual seeking to challenge either the appointment of the administrator in an administration proceeding, or the executor in a Will in a probate proceeding can appear in Court and advise the judge that he or she seeks to challenge the estate proceeding.

Executor’s and Administrator’s Duties

When the Will is accepted for probate, the executor or administrator’s duties are to find the assets, liquidate them, and obtain them for the benefit of the beneficiaries.  The technical aspects of handling the funds is usually dealt with by the attorney retained by the administrator or executor of the estate.  Assets of an estate can involve houses, money, stocks and bonds, insurance policies, jewelry, artwork, clothing and other personal items.

Real Estate Issues in Estates

If an individual owns real property outside of New York State (houses, land and other structures on land), an ancillary probate proceeding will be required to be undertaken in the State where the real estate is located.  Surrogate’s Courts in the State of New York only have jurisdiction over real property that lies within New York State.

Accounting of Assets Before Distribution to Beneficiaries

After all of the assets are amassed by the estate, and all of the creditors are paid, the administrator or executor thereafter needs to provide a simple accounting to the beneficiaries showing assets, liabilities and the amount which will be available to be distributed to the beneficiaries.

Fiduciary Responsibility

It should be noted an executor is a fiduciary.  In the event he or she makes mistakes or mishandles funds, they are personally liable to the beneficiaries of the estate for these actions.  It is therefore almost always advisable for the executor or administrator to hire an experienced estates attorney to assist him or her with regard to all aspects of the decedent’s estate.estate litigation lawyer

What is Needed During a Probate Proceeding?

estate litigation lawyerA probate proceeding is a proceeding brought to see to it that a Will is accepted as being valid by the Surrogate Court in New York State. The best way to start a probate proceeding is to visit several attorneys and hire an experienced, dedicated estate lawyer. Make sure when you hire this lawyer, that he or she has been doing this for a minimum of ten years and has handled numerous estate matters.

There are a variety of documents which are necessary to assist the attorney in bringing the probate proceeding. The following are a list of some of these items:

  • The original Will. The original Will, not a photocopy of the original Will, should be brought to your attorney’s office.
  • Your attorney will need several original raised seal death certificates. It is suggested, depending on the size of the estate, that you receive a minimum of six, and if there are a number of different bank accounts or securities accounts involved, twelve original death certificates may be helpful.
  • You need to bring with you, when you go to your attorney’s office, a copy of a funeral bill indicating it is paid. Funeral directors have a very strong lobbying group in Albany, and estates cannot be processed unless you show the funeral bill has been paid.
  • You need to provide the attorney with the names and addresses of all of the individuals who are next of kin as well as all the individuals named as beneficiaries in the will.
  • In the event there are minor children involved, the attorney will need to know their names, addresses, dates of birth, social security numbers and the names and addresses of their legal guardians.
  • If you are familiar with the assets of the decedent it is very important you provide the attorney with an itemized list documenting each and every one of the assets the decedent died owning.

If you provide the attorney you hire with all of the necessary information and documents, the estate proceeding will move forward without problems. This can also reduce your legal expenses and the time it takes for the Will to be probated.

It should be noted that once a Will is probated, distribution of the assets is not supposed to take place for a period of seven months. This gives creditors a reasonable period of time to file claims against the estate.wills and estates attorney

Guardianship Proceedings

guardianship attorneys on Long IslandEveryone who lives will eventually grow old. Sometimes elderly individuals lose their mental and physical strength related to their aging. In these situations, they can be subject to undue influence concerning the money they have in the bank, other financial assets and real estate they own. The undue pressure can come from a variety of sources. Sometimes caregivers, relatives, friends and other loved ones take advantage of seniors who are in a reduced mental state. A senior who is in a weakened mental or physical state may be induced to make bad decisions. In addition, seniors may also become incapable of tending to their financial affairs, their medical treatment and caring for themselves. In these situations, the legal proceedings that are required to help the seniors are called guardianship proceedings.

Guardianship proceedings deal with helping seniors make medical and financial decisions. In addition, it stops other individuals from taking advantage of seniors who are in a reduced psychological or physical state. Seniors in reduced mental and physical states can be taken advantage of with regard to their assets and other financial matters. This can cause the value of the senior’s estate which was intended to be paid to loved ones or other beneficiaries to be significantly reduced.

Expeditious Legal Action

If someone is being taken advantage of to his or her financial detriment, it is important legal action be taken quickly and efficiently. If your rights as a loved one or other beneficiaries have been compromised or are in the process of being compromised, bringing a guardianship case not only helps the affected senior, but protects inheritance rights as well. Sometimes family members sit back and take no legal action to deal with the dissipation of assets of a loved senior by an unscrupulous or inappropriate person. The longer you wait to straighten out this type of improper situation, the more difficult it becomes to retrieve the assets.

Immediate Legal Action Regarding Misappropriated Assets

Legal action should be taken immediately when you become aware of the misappropriation of a senior’s assets by a third party. This will protect the senior from losing all of his or her assets and protect the potential beneficiaries with regard to inheriting from the estate.estate planning lawyer

What is Intestacy?

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Elliot S. Schlissel drafts wills and trusts and aids his clients in all aspects of estate planning.  Elliot handles estate litigation, including issues where a person has died without a will.  He and his associates have more than 100 years of combined experience representing clients.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

How Estate Litigation Works in Surrogate’s Court – Part II

estate litigation lawyerThe Trial

The trial will either be conducted before a jury or by a judge. There are certain issues an individual can request a jury for. If the claims at trial are that the executor, administrator or trustee embezzled funds or acted improperly, the court can order that individual to repay the estate or the trust for the funds which were improperly taken.

Estate litigation is complex and emotional. It usually takes place between loved ones who have a dispute over money. The difference between estate litigation and divorces is that in divorces loved ones fight over their money and in estate litigation the parties are litigating regarding other people’s money. The best way to deal with estate legal problems is to hire an experienced, dedicated estates attorney. When hiring an attorney you should investigate his or her background to make sure they are the right person to handle your case.   You should discuss with the attorney how many Surrogate’s Court cases he or she has tried, what type of estate cases he or she has tried and the results in these cases.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been handling estate litigation, wills, trusts and other issues pertaining to estate planning for more than 35 years. estate and trust attorney


Dying Without a Will – Who Inherits?

When an individual who has not written a will dies, it is said he or she died intestate. Intestate succession in New York State deals with the distribution of assets as follows:


  • If the individual who dies did not have a spouse at the time of his or her death, and he or she had children, the children would inherit all of the assets.
  • If the individual who died had a spouse and no children, the spouse would inherit everything.
  • If the individual who died had a spouse and children, the spouse would inherit the first $50,000 of the decedent’s assets, and 50% of all other assets of the decedent.
  • If the individual who died had parents who survived him or her and no spouse and no children, the parents would inherit all of this individual’s assets.
  •   If the individual who died had no parents who survived him or her, no spouse and no children, but had brothers and/or sisters, the brothers and/or sisters would receive all of the assets.
  •   If the situation gets beyond this point you should hire an estates lawyer to go through a more detailed inheritance chart.

Assets Which Pass Outside of an Individual’s Estate

Many assets do not pass under an intestate estate if the individual dies without a will, or pursuant to the terms of a will even if an individual who dies has a will. These types of assets are referred to as testamentary substitutes, which do not pass either by intestate succession or pursuant to the terms of a will. The following is a list of some testamentary substitutes which would pass outside of an individual’s estate:

  • The proceeds of life insurance contracts
  • Funds maintained in a pension, IRA, 401(k), 403(b) or other retirement accounts which has an internal beneficiary designation related to the account
  • Assets maintained in a living trust
  • Bank accounts and/or securities held in transfer on death accounts
  • Property you own pursuant to a joint tenancy or a tenancy by the entirety (tenancy by the entirety applies to property owned by a husband and wife)

Dealing With Estate Issues

Most individuals do not understand estate succession laws and the complexities involved in the transferring of assets in estates. In the event a family friend, loved one, spouse, child or other individual who was close to you passes and you feel you are entitled to an inheritance from this individual, the best way to see to it your inheritance rights are protected, is to hire an experienced estates lawyer. The estate lawyer’s job will be to see to it all of your rights to inherit are protected.wills and trusts lawyer