Elder Law – Wills & Trusts

Elder Law is the practice of law which focuses on planning for the future personal and financial concerns of clients, typically with a focus on Medicaid planning, and includes long term care, retirement, estate and tax planning. As an elder law attorney, our goal is to assist clients in understanding Medicaid eligibility and advise clients in various methods of preservation of their assets. Planning documents such as Revocable Living Trust, Irrevocable Trust, Last Will and Testament, Deed transfer with Life Estate, and Durable Power of Attorney are options which may be utilized by the client.

To assist your attorney in your planning needs, it is necessary to understand the client’s assets and liabilities, how assets are held, that is, individually, jointly, or otherwise, as well as any beneficiary designation of assets. Also, it is important for the client to be aware that there is currently a sixty (60) month or five (5) year look back period for purposes of Medicaid eligibility. It is therefore recommended that asset preservation planning be undertaken by a client prior to attaining “elderly” status.

If you have any questions or would like a free consultation, please call our Riverhead Law Office at 631-727-3904, or contact us here.

Estate Law & Practice – Common Terms

– some frequently used terms with regards to an Estate Lawyer

Surrogate’s Court

  • The Surrogate’s Court of the decedent’s domicile at date of death has jurisdiction over the estate of the decedent and is the proper venue for proceedings related to the estate.
  • The Suffolk County Surrogate is Honorable John M. Czygier, Jr., and the courthouse is located in Riverhead.

Testacy and Intestacy

  • Testacy is when a person dies leaving a will.
  • Intestacy is when a person dies without a will.

Probate and Administration

A Probate proceeding is initiated for a decedents who died testate, that is with a valid will.  Typically, the named executor of the will files a petition for probate.  A probate proceeding initially determines the validity of the will.  If the petition is granted and the will is admitted to probate, the Surrogate issues “Letters Testamentary” which empowers the Executor to act.

Those individuals who receive property of the decedent pursuant to a will are referred to as “beneficiaries”.

An Administration proceeding is initiated for decedents who died intestate, without a will.
The petition for administration is filed by a person who, pursuant to statute, is qualified and eligible to file.  If the petition is granted by the Surrogate, Letters of Administration are issued to the petitioner, which authorizes the Administrator to act.
Those individuals who receive property pursuant to the statutory laws of descent and distribution are referred to as “distributees”.

Small estates valued at less than $30,000.00 do not require letters of administration, and are administered when a distributee petitions for voluntary letters in a somewhat simplified proceeding, pursuant to statute.

Descent and Distribution  

In either a Probate or Administration proceeding, it is necessary to know who the decedent’s distributees are under the New York laws of descent and distribution.  For persons with a date of death after September 1, 1992, EPTL 4-1.1 controls as follows:

  • If survived by spouse and issue (children, grandchildren, great-grandchildren) then the spouse takes the first $50,000.00 and ½ of the balance. The issue share the balance by “representation”.
  • If survived by spouse and no issue, the entire estate goes to the spouse.
  • If survived by issue and no spouse, then to the issue by representation.
  • If survived by no spouse and no issue, then to the parents of the decedent.
  • If survived by no spouse, no issue and no parents, then to the issue of the decedent’s parent’s by representation (decedent’s brothers, sisters, nieces, nephews, grandnieces, grandnephews).
  • If survived by no distributees in the above categories, but surviving grandparents or grandparents’ issue, then as follows:
  • ½ to surviving paternal grandparent or grandparents or if neither surviving, then to their issue, by representation (aunts, uncles, first cousins)
  • ½ to the surviving maternal grandparent or grandparents, or if neither surviving, then to their issue by representation (aunts, uncles, first cousins)

If you have any questions or would like a free consultation, please call our Riverhead Law Office at 631-727-3904.

Updates – Real Estate & Matrimonial Law

Real Estate Law:

All Homeowners receiving a Basic STAR property tax exemption must now register with the New York State Tax Department effective for 2014 property taxes. Enhanced STAR exemption for Senior Citizens is not affected by this registration requirement.  The registration requirement is NOT satisfied by your original application with your local town assessor. STAR property tax exemption is available or owner occupied, primary residences with a combined marital income of $500,000 or less. You can register with the Tax Department at www.tax.ny.gov or by calling (518)457-2036.

2013 Updates to New State Penal Law and Criminal Procedure Law:

  • Texting fines- The fines for all motorists using cell phones or texting while driving has been increased to $50-150 for first offense, $50-$200 for second offense within 18 months and $50-$400 for subsequent offenses within 18 months.
  • New drivers using cell phones- The penalties for drivers with a probationary or junior license convicted of texting or using a cell phone while operating a motor vehicle has been increased to a 60 day suspension for the first conviction.  The penalty for a second conviction, occurring within 6 months of the license being restored, is revocation of a junior license for 60 days and revocation of a probationary license for 6 months.
  • Leandra’s Law- Several modifications have recently been made to this law, under which a person can be charged with a felony for operating a vehicle while intoxicated with a passenger younger than 16 years old. Under the 2013 amendment to this law, a driver with a conditional license will now be subject to the charge of Aggravated Operation of a Motor Vehicle in the First Degree, a Class E felony. The law now applies to Youthful Offenders. The minimum period an interlock device must be installed on the driver’s vehicle was increased to 12 months but may be reduced after the device has been installed and properly maintained for 6 months.
  • Probation- Under proposed new legislation judges will have the discretion to choose the length of probation for both felony and misdemeanor charges. This will enable the court to base the term of probation on the defendant’s prior criminal history, degree of culpability in the present offense and actual risk of re-offense.

 

Matrimonial Law:

Defense of Marriage Act (DOMA)
In June of 2013 the Supreme Court struck down a key portion of DOMA which defined marriage as a union between one man and one woman for the purposes of federal administrative polices.  It forced the federal government to ignore same sex marriages legally entered into under state law. As a result, same sex couples legally married in accordance with state laws must receive the same federal tax, social security and federal social program benefits as heterosexual couples.

Marriage Equality Act

New York State Domestic Relations Law has been amended to allow same sex couples to legally marry.  As of November 2013, fourteen states as well as the District of Columbia have legalized same sex marriages.

Automatic Orders in a Matrimonial Action:

The Automatic Orders were revised in 2013 to implement the amended NYCRR 202.16. Under the Automatic Orders both parties in an action for divorce are prohibited from transferring or encumbering assets, incurring unreasonable debts, terminating health insurance coverage or modifying life insurance beneficiaries. These orders are effective during the entire pendency of the action. Parties must get the courts permission or enter into a written agreement if they wish to modify these orders.

If you have any questions or would like a free consultation, please call our Riverhead Law Office at 631-727-3904.