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

After a Loved One Passes

Losing a loved one can be an extremely difficult experience. In some situations after your loved one passes, their next of kin is called upon to supervise the estate of the deceased. After the funeral takes place, the individual charged with handling the estate of the deceased has to first find the assets and gather them together within the confines of the estate. Thereafter he or she must pay creditors and authenticate who the beneficiaries to the estate are. If the decedent wrote a will, the process begins by probating the will.

The Probate Process

The first step in the probate process is to locate the original Will and file the Will with the Surrogate’s Court located in the county where the decedent resided before his or her death. In addition to filing the Will, a probate petition must accompany the Will. If the court accepts the probate petition, the case will be placed on the court’s calendar. The beneficiaries and next of kin will need to receive notice of this upcoming court date. On the return date of the probate petition, if there are no challenges to the will, the court will render a decision authorizing the executor named in the Will to be appointed to fulfill the terms and functions of the Will. The executor will determine the assets of the estate and gather them together. These assets may involve selling real estate, liquidating bank accounts, stocks, bonds and mutual funds, and various other types of assets. If there are expenses related to the decedent’s final illness, these expenses must be paid. Tax returns for the year in which the decedent died must be filed and if taxes are due, they must be paid. If the estate is a large estate, there may be estate taxes due and owing. At the end of the probate process the executor must prepare an accounting of the assets received, the payments which have been made to creditors, and lay out the scheme for the payment of the balance of the funds of the estate to the beneficiaries named in the Will.

No Will Causes Administration Proceedings

Administration proceedings are similar to probate proceedings, however they are a bit more complicated. Since no one has been named by the decedent to handle his or her estate, the next of kin and/or other family members may approach the court and seek to be named the administrator of the estate. This sometimes causes disputes among those individuals who seek to control and administrate the decedent’s estate.

In both probate and administration proceedings, family members who don’t feel they received their fair share of the estate sometimes come forward and challenge the estate proceeding.

Dealing with Estate Issues

I would not recommend an executor or administrator try to handle either the probate of a Will or the administration of an estate without the guidance and legal representation by an experienced estates attorney. If the administrator or executor makes a mistake, he or she can be personally liable for financial damages. The cost of hiring an attorney to represent the estate are paid by the assets in the estate, not by the funds belonging to the administrator or executor.new york estates attorney

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.

Guardianship Proceedings

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of guardianship proceedings, estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Living Wills

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Elliot S. Schlissel is an attorney with more than 35 years experience in estate planning and all aspects of estate litigation.  He and his associates are available for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Misconceptions Regarding Wills

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Revoking a Will

wills and estates attorneyGerace brought a petition to probate a Will. The decedent’s mother in this case filed objections in this proceeding. She claimed the Will had been revoked 4 years after it had been executed. The decedent had written on the top of the Will “worked to revoke it.” Gerace claimed this was a revocation of the Will. Surrogate Louis Gigliotti sitting in Oneida County noted the Will was handwritten and on top of the Will was the handwritten notation referring to a “new” Will. Gerace took the position that he was the decedent’s attorney from 1995 until her death. He saw her at least twice annually, but at no time did she indicate she wanted to make a new Will or revoke the prior Will.

The second issue presented to the court was did the decedent’s actions cause the cancellation of the Will. The court took into consideration there was no burning, tearing, cutting or mutilation of the Will. Judge Gigliotti took the position that in the event the words on top of the Will were written by the decedent, those handwritten notes on the Will did not act to revoke the Will. Surrogate Gigliotti stated that for the decedent to have written a new Will or modified the old Will, the new Will or the Will modifications would need to be done with the appropriate testamentary formalities. Since the testamentary formalities were not undertaken in this case, the decedent’s actions did not cause the revocation of the prior Will and the Will should be admitted to be probated.


Should you wish to withdraw or modify or revoke a Will, hire an attorney to take the appropriate action to write a new Will and cause the revocation of the prior will. New York State requires testamentary formalities with regard to the execution and/or revocation of Wills and those testamentary formalities must be correctly adhered to.wills attorney in New York

Requirements When Preparing a Will

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

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

Wills Litigation

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.