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When dealing with matters concerning an incapacitated person, one of the primary concerns is finding the resources to pay for the living expenses and care of the individual. New York Guardianship Lawyers must always determine the type of assets, income and benefits that are available. Incapacity can take many forms and the nature of a disability will be reflected in the expenses incurred. For example, an individual may have been the victim of an accident or stroke and need 24 hour nursing home care. On the other hand, a person may have dementia or Alzheimer’s disease and may be able to live at home with their family.

In situations where care expenses are extensive, personal resources may be unavailable or may have been exhausted. Also, it is possible that as a result of Elder Law Planning and Estate Planning, a person may have transferred assets to others many years before the onset of a disability. Where assets are limited, it is common that government benefits such as Medicaid and Social Security would be available to pay for the cost of care. Continue reading →

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There are countless articles and advisory papers that have been written in which people are urged to prepare an Estate Plan. The use of advanced planning documents such as a Last Will, Living Will, Power of Attorney, Health Care Proxy and Living Trust allow a person to specify the manner in which assets are to be managed and tranferred and substituted decision making can be established.

As discussed in many posts in the New York Probate Lawyer Blog, where these planning papers do not exist, the disposition of a person’s estate is left up to the inheritance provisions of State law relating to intestacy. Continue reading →

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A New York Guardianship Proceeding is commenced by the filing of a petition.  Mental Hygiene Law (MHL) Section 81.08 sets forth the requirements of the petition.  MHL Section 81.06 designates the persons who may file the proceeding which includes family members as well as any other person who has concerns regarding the alleged incapacitated person (AIP).  The New York Probate Lawyer Blog has described the Guardianship process in numerous earlier posts.

It is very common that Guardianship proceedings involve litigation where family members compete for appointment so that they can control the finances and personal needs of the AIP. Continue reading →

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Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian for property management and personal needs for a person who is found to be incapacitated.  The New York Probate Lawyer Blog has discussed in earlier posts the procedure to obtain the appointment of a Guardian.  Typically the proceeding is commenced by the filing of a petition with the Court along with a proposed Order to Show Cause.  MHL Section 81.08 sets forth the information to be included in the petition.  This information includes the name and address of the alleged incapacitated person’s (AIP) closest next of kin who are also given notice regarding the commencement of the Court case.

In some cases, a relative or other interested person may file a cross-petition with the Court in which they oppose the appointment of a Guardian or ask the Court to appoint the cross-petitioner as the Guardian rather than the original petitioner. Continue reading →

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Executors and Administrators appointed by the Surrogate’s Court have many duties and responsibilities. New York Estate Lawyers who represent fiduciaries typically assist their clients in connection with determining and paying estate liabilities. These liabilities can be in the form of debts and claims owed by the decedent such as unpaid credit card bills, mortgages or other monetary obligations. Additionally, the decedent may have owed past due income taxes or taxes that are to become due relating to the decedent’s final income tax return.

Regardless of the nature of the debt or obligation, the estate fiduciary must find and pay the monies that are due or risk becoming personally liable if all estate assets are paid out before all creditors are satisfied. Continue reading →

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Estate attorneys in New York are familiar with statutes that provide for the distribution of estate assets to a person’s next of kin. These persons are known as distributees.  Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides the order of priority to the individuals who may assert inheritance rights.

As discussed in earlier posts in the New York Probate Lawyer Blog, kinship issues can arise in both probate and intestate administration proceedings in the Surrogate’s Court. However, proof of kinship is more commonly an issue where there is no Last Will and potential distributees are asserting rights to inherit the assets of the decedent’s intestate estate. Continue reading →

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Estate Attorneys in New York are familiar with the use of a Durable Power of Attorney to assist with various activities. Sometimes a power is signed by a principal to assist with a specific transaction such as the sale or purchase of real estate. The power may be needed because the principal is unavailable to attend a closing of title because he is out of town.

In many other situations, a principal may name an agent in the context of estate planning and provide the agent with very broad powers to act in a number of different areas including real estate transactions, business operating transactions and banking transactions.  New York General Obligations Law Section 5-1501 and subsequent statutory sections comprise “The Statutory Short Form and Other Powers of Attorney For Financial and Estate Planning”. As has been discussed in earlier posts in the New York Probate Lawyer Blog, the power of attorney law was recently revised in an attempt to eliminate the misuse of the agent’s authority and prevent financial abuse. There have been and continue to be many instances where an agent improperly uses the power to obtain economic or other advantages. Continue reading →

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The rights of a surviving spouse to inherit from a decedent have been referred to in numerous articles in the New York Probate Lawyer Blog. When a person dies without a Last Will, a surviving spouse is provided by Estates, Powers and Trusts Law (EPTL) Section 4-1.1 with at least a fifty percent (50%) share of the estate. When a decedent leaves a Last Will, the general rule is that a surviving spouse cannot be entirely disinherited. EPTL 5-1.1-A entitled “Right of Election of Surviving Spouse” provides that a spouse is to obtain a share of assets equal to approximately one-third of a decedent’s net estate. Thus, if a spouse is omitted from a Will or disinherited in whole or part, the spouse can elect to receive estate assets equal at least to the statutorily required minimum.

It should be noted that inheritance by a spouse is given this protection while other family members do not receive these rights. Even children can be entirely disinherited. Also, the estate tax laws recognize the importance of spousal transfers. The Federal and New York estate tax rules allow a 100% marital deduction for all assets passing from a decedent to a spouse. Continue reading →

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One of the first and sometimes most difficult tasks faced by an Executor or Administrator of an estate is to identify, protect and collect the assets of a decedent’s estate. There is a fiduciary obligation to perform these activities so that the estate beneficiaries’ interests are safeguarded. The fiduciary has very broad powers to find and collect assets. Usually, a Last Will enumerates the authority to collect assets. However, whether there is an Executor or Administrator, the Estate laws give these powers as well. For example, Estates, Powers and Trusts Law (EPTL) Section 11-1.1, entitled “Fiduciaries’ powers” states at paragraph (b)(5)(A) that a fiduciary has the authority with respect to property “To take possession of, collect the rents from and manage the same.”

While the authority granted may be broad, it is not always easy to identify and collect a decedent’s assets. Very often a person fails to maintain organized and complete records regarding bank accounts, stock ownership and business affairs. Moreover, the decedent may have been secretive during life and did not share all of his financial information with family members or professional advisors such an attorney or an accountant. In these cases, the fiduciary has to act like a detective and investigate all possible information regarding potential estate assets. Continue reading →

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A very common complaint that New York Estate Lawyers hear is that an estate beneficiary has not received his share of a decedent’s estate. Typically, the beneficiary, who may be a legatee under a Last Will or a distributee in an intestate administration, has been waiting for years to receive a payment. Sometimes all efforts to contact or receive a response from the Executor or Administrator have failed.

In earlier posts, it has been discussed that a fiduciary must account for his actions. The accounting that is provided to estate or trust beneficiaries includes a list of all assets and income received, all expenditures that have been paid and all expenses or claims that are still outstanding. Continue reading →

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