A New York developer planned to build a 72- unit assisted living facility for the aged with staff offering residents assistance with meals and daily activities, but not skilled nursing care.  The proposed site is zoned partly for commercial use and partly for residential use.

After the Board of Zoning Appeals rejected the builder’s bid for a special use permit, it filed a federal suit for violating the Americans With Disabilities Act (ADA), the Rehabilitation Act and the Fair Housing Act.

The builder alleged discriminatory conduct including the failure to reasonably accommodate the needs of the disabled prospective residents.  It sought a preliminary injunction ordering the town to allow construction.

The U.S. Court of Appeals for the Second Circuit ruled that because the developers failed to show that people without disabilities could get what they were seeking—permits for residences in that same commercial zone—no injunction was warranted.

“If a building permit would not be granted even for comparable ‘traditional’ residences (that is, residences where persons without disabilities can live) in the relevant area, a municipality is not required to make accommodations that would facilitate a building permit for housing designed for the disabled.”

A Will names an executor who has the power to petition the Surrogate’s Court to probate it.  An executor is the “personal representative” and fiduciary of the decedent and as such must administer the estate.  The executor must ensure that the Will is carried out.  In general, the executor must:

1. Handle funeral arrangements and pay for the funeral;
2. Pay any outstanding bills of the estate;
3. Collect and preserve assets;
4. Pay debts, taxes and administration expenses of the estate; and
5. Distribute estate assets according to the terms of the will.

For further information, read the free  New York Executor’s Legal Survival Guide or call Buffalo and WNY Estate Planning Attorney Bob Friedman at  716 631 9999 or toll-free at 800 729 4571.

When you write a Will as testator in Buffalo, NY, it is especially important to choose competent and trustworthy executors and alternate executors. Otherwise, even careful estate planning may be rendered useless. The executor can be any person or institution that you choose. However, an executor should be:

• Experienced and competent in business matters;
• Familiar with your business, finances and property;
• Able and willing to act as your executor;
• Able to spend the time necessary to perform his or her duties;
• Able to work with the estate’s attorney and accountant; and
• Able to provide for the continuation of your business.

The 2010 New York Medicaid regional rates used to determine a transfer of assets penalty period are:

These rates are based on average nursing home costs in each of the seven regions in New York State. A period of ineligibility (“penalty period”) is imposed for any transfers of assets for less than fair market value (gifts) since February 8, 2006.

A period of ineligibility for Medicaid institutional services will result from these transfers. Medicaid will calculate the period of ineligibility by the following statutory formula: the dollar value of the transfer divided by the average monthly cost for one month of nursing home care equals the number of months of ineligibility for Medicaid nursing home institutional services.

For further information, see the free New York Medicaid Guide at http://www.wny-lawyers.com/medicaid.pdf

If you have questions about Estate Planning Issues and other legal matters that will impact your family as you grow older, contact Buffalo New York Estate Attorney Bob Friedman at (716) 542-5444.

Probate is the process of proving that the Will of a deceased person (testator) is in fact his or her Will and reflects his or her wishes. The purpose of probate is to prove the validity of the Will, have the executor appointed and administer the estate.

A Will may not be probated unless the Surrogate’s Court is satisfied as to its genuineness and the validity of its execution (signing). A Will must be probated to be valid. It is not operative until it is admitted to probate by the Surrogate’s Court.

Admission of the Will to probate requires establishing, upon due notice to all required persons, that:

1. It is the Will of the decedent;
2. That it has been signed and witnessed and otherwise executed as required by law;
3. That at the time of its execution the decedent was of sound mind;
4. That it, indeed, was the last will and testament of the decedent.

The execution of a subsequent Will revokes an earlier Will. When the court is satisfied that the above conditions have been established, the Will is admitted to probate and is effective for all purposes, including the transfer of the title to real property.

Until such admission to probate, the Will has no force and effect and the named executor has no authority.