Answers to Your NY Elder Law, Estate Planning, and Probate Questions

If you don’t have a will, New York State has a plan for you. It may not be a plan you like, but New York State has an estate plan for you if you don’t have a will. It’s called intestacy. An administrator for your estate is appointed by Surrogate’s Court. Some of the myths about dying without a will are that your estate goes to the state of New York. If you have a spouse and no children, everything goes to your spouse. If you have a spouse and children surviving you, the first $50,000 goes to your spouse, and the 50% of the remainder of your estate goes to your children and 50% goes to your spouse. Parents inherit everything is there is no surviving spouse or children. Brothers and sisters inherit everything if there is no spouse, children or parents. There are many nonprobate assets that do not pass either through intestacy or your will.

To preserve your home from the devastating costs of nursing home care, you can transfer it to your children with either a life estate deed or a deed to an irrevocable living trust.

With both the NY life estate deed and the irrevocable living trust:

• You will avoid probate.
• You can preserve your home from nursing home and home care Medicaid costs beginning five years from the transfer.
• Your home will still qualify for any property tax exemptions such as veterans and senior citizens exemptions that were available prior to the transfer as long as you continue to reside in your home.
• Capital gains when your children sell the home will be calculated on a stepped-up basis which is the value at the date of your death rather than your original cost basis .
• Social Services cannot require you sell your life estate interest or to rent out your home while you are on Medicaid.
• You have the right to live in your home for the rest of your life. During your lifetime your children can’t make you move out.
• Your home will not be subject to Medicaid estate recovery when you die because it avoids probate.

No. If your home deed states that you and your spouse are husband and wife (known as tenants-by-the-entirety) and you were still married at the time of his death, it automatically passed to you upon his death. You do not need to file a new deed or have the home pass through probate.

New York Mental Hygiene Law Article 81 Guardianship (“MHL 81”) proceedings are initiated when an interested or concerned party believes that a person, because of his/her mental health and/or physical and functional limitations, is unable to manage independently, and as a result, may be at risk of harm. NY Supreme Courts have jurisdiction over the person and property of a mentally incapacitated adult. A guardianship may be needed to provide for personal (health/medical) and financial decisions of an incapacitated person who is unable to make those decisions and has not executed a power of attorney, health care proxy, or living will. Often guardianships are necessary when one family member is concerned about possible fraud, financial abuse, and manipulations by another family member.

Probate is a process of having the executor named in your will appointed to be the representative of your estate. Your executor can’t just take the will to the bank and say, “I am the executor.” The will alone does not give the executor authority. There is a process that the executor must go through to obtain letters testamentary. This process can be very complicated in certain instances, but in most cases, it’s straight forward. The probate process is the process of satisfying the court that the last will and testament is valid and the necessary people have been notified or signed off.

NY beneficiaries can file a petition with Surrogate’s Court to: (a) compel the executor/administrator to file an accounting; and (b) remove him or her and appoint another executor/administrator. Fiduciaries can be removed for: a felony conviction, commingling of estate assets with his or her own funds, failure to account pursuant to a court order, dishonesty, waste, failure to comply with a court order, failure to inform the court of a change in address, substance abuse , removal of property from the state without court permission, hostility and conflict between a fiduciary and beneficiaries, or between co-fiduciaries.

The 2023 NY Medicaid Institutional and Community/Home Care resource and income allowances for the community spouse (home care benefits are in parenthesis) is $148,620 ($29,274). The community spouse income allowance is $3,715.50($2,106)

The dollar value of transfers or gifts made during the past five years, divided by the average monthly cost of nursing home care, is used to calculate the number of months of ineligibility for Medicaid institutional services. The 2023 regional rates for the average monthly costs of nursing home care for Buffalo/WNY (Erie, Niagara, Genesee, etc): $12,130; Rochester (Monroe, Ontario, Seneca,etc):$13,421; Long Island (Nassau and Suffolk) : $14,136; NYC: $14.142; Syracuse/Central (Broome, Cayuga, Oswego, etc): $11,726; Albany/Northeastern (Rensselaer, Saratoga, etc): $12,744; and Northern Metropolitan (Westchester, Dutchess, Orange, Rockland, etc): $13,906. For example, a WNY nursing home resident’s gifts of $121,300 divided by the regional rate of $12,130 would result in a ten-month penalty. Therefore, the resident would have to private pay the nursing home for at least ten months.

You have a constitutional right to refuse medical treatment. How do your doctors know what your wishes are if you never put it in writing? All people 18 years and older should have living wills and healthcare proxies. A couple of the most famous cases about healthcare proxies were women in their 20s. Karen Quinlan, who was in a coma for a long time from an overdose of barbiturates and alcohol. Terry Schiavo lingered for 11 years. She was hooked up to machines for many years as her ex-husband and her family fought whether or not she should be disconnected from life support because she never had anything in writing. Healthcare proxies are created by New York legislation in which you designate an agent and an alternate agent to make healthcare decisions for you. The living will is your specific instructions about what you do or do not want. Your healthcare proxy cannot speak for you on is whether or not you do not want tube feeding or artificial hydration. That has to be in your living will to have the hospital discontinue tube feeding or artificial hydration.

Health care proxies recognize your right to appoint a health care agent that you trust to decide about medical treatment in the event that you become unable to decide personally. Unless specified otherwise, the agent will have the same authority that you would have in deciding

about treatment. The authority encompasses the right to forego treatment or to consent for needed treatment. The agent’s authority begins only when a physician determines that you have lost the capacity to decide about treatment. Living wills are written declarations instructing your family and doctor about life-prolonging medical procedures when your condition is terminal and there is no chance of medical recovery. Under constitutional and common law, patients have the right to refuse medical treatment. A living will gives you the opportunity to express your wishes in advance, since you may not be able to make them known when it becomes necessary to do so. Life-prolonging procedures include the use of machines if you cannot breathe on your own, performing operations or prescribing antibiotics that cannot realistically increase the chances of recovery, starting your heart mechanically when it stopped beating, or feeding by tube. You can specify that the only treatment rendered be for the relief of pain. In a Queens County, New York Supreme Court case, the patient’s treating geriatrician recommended that she be given a percutaneous endoscopic gastrostomy (PEG) tube for hydration and nutrition because she could not be fed by mouth. The patient’s daughter, invoking her status as health care agent under a statutory health care proxy, refused to authorize the surgery. The patient’s sister petitioned for an order authorizing the PEG surgery. Under New York’s health care proxy law, a patient’s preferences regarding artificial nutrition and hydration must be specified before his or her agent is deemed to have the authority to decide these questions. If a patient does not clearly indicate in an advanced directive that nutrition and hydration are to be withheld or withdrawn, nutrition and hydration must be provided. Since the patient left no written instructions in her health care proxy regarding the administration of artificial nutrition and hydration, and since it was conceded that her wishes in that regard were not reasonably known and could not with reasonable diligence be ascertained, there was no clear and convincing evidence on this specific issue. Under the circumstances, the court found that the patient’s daughter was without authority to make decisions about artificial nutrition and hydration for her mother.