Probate

Most people want to leave a legacy. Yet most people also have no idea how to go about doing it.  One simple way is through a life insurance policy.

The Public Administrator is one of a chosen group of attorneys in one office per county who the Court often calls upon to administer to non-standard cases.

The Public Administrator generally has the job of handling estates of people who die without a Will and who have no close relatives who are able to administer the estate: If your nearest living relative is a cousin (or more distant) the Public Administrator will need to be placed on notice. In addition, the Public Administrator often replaces initial Executors or Administrators who are unable to qualify or unable to serve.

The Public Administrator’s job is to collect all of the assets of the estate, pay the outstanding bills and distribute the remaining money to the distributees of the deceased. The job of finding the distributees is often the most time-consuming and expensive, as distant relatives may have to be located in multiple countries with the help of genealogists or investigators.

I received a call this month from a man who wanted to  receive his share of his father’s building. The property had a value of approximately $4MM. There were 5 children in total, 2 from father’s first marriage (one of whom was this client) and 3 from father’ second marriage.  The caller could not understand why, after the death of his father, the property was being listed for sale by his 3 half-siblings without any input from him.

After I looked up the ownership of the property, I had to tell him the unpleasant truth: He will not get a penny from the sale of this real estate.

According to the most recent data from Credit.com, 73% of consumers had outstanding debt when they were reported as dead, with the average total balance of $62K. Debts included home loans, credit cards, auto loans, personal loans and student loans.

An estate is responsible to pay the deceased person’s debts. If there is sufficient money, the creditors get paid first, and the beneficiaries receive whatever remains.

An Executor is the person named in the Will who ensures that deceased person’s wishes are carried out after death, that all the assets are found, that all the debts are paid and all the money is distributed according to deceased person’s wishes.

Responsibilities: The duties of an executor include: finding the Will, hiring a probate lawyer to put together a probate petition (including getting all the signatures from all the necessary parties), filing the petition and the Will with the court in order to be appointed as an Executor by the court, appearing in court (if necessary), notifying credit cards companies and banks about death, setting up an estate bank account, filing an inventory of assets with the court, carrying out the wishes of the decedent (including selling the real estate and other assets, if necessary), paying all the necessary income and estate taxes, and distributing the assets to the beneficiaries.  

Who should you name: as you can see, the probate process can be long and complex. The executor should be someone responsible and capable of handling such a task. Usually people name relatives or friends, because they know that the person will carry out their wishes.

As most people by now know, the artist Prince died without a Will. The family is now set up for tens of thousands in legal costs and years of delay before the money gets distributed.

When a person dies without a Will, regardless of the size of his estate, numerous problems come up. These include:

1. Executor. The person who will be named in charge of your estate may not be the person that you would have liked.

B.B. King acknowledged 15 children from 15 different women during his life. 11 of the children survived him. Yet the executor of B.
Read more . . .

1. If Medicaid was paid improperly, the Department of Social Services is entitled to recover all improperly paid benefits.

         If Medicaid discovers that an individual was ineligible because the information provided was false, there will be 3 steps taken. First, any further medical assistance will be discontinued. Second, the case can be referred to the local District Attorney office for criminal prosecution. Third, a lawsuit for the civil recovery may be commenced, to recover the money overpaid.

         The first step in this process is usually a letter, received by Medicaid recipient, informing him that he is being investigated for Medicaid fraud, and asking him to come in for an interview.

2.     Medicaid is entitled to recover from the estate of anyone who was 55 or older when the assistance was granted. However, this recovery is limited by several important considerations:

1. The recovery is limited to benefits paid within 10 years of individual’s death.

2. Medicaid is excluded from making a claim against the estate of an individual who is survived by a spouse, a minor child, or a disabled child. However, the lien is held in abeyance only. Once the surviving spouse dies, a lien can be placed against the second to die spouse’s estate to recover Medicaid benefits paid to the first spouse.

3. Medicaid may only make the recovery from the probate assets of an individual (those assets that pass under a will or by administration if there is no Will, and not part of a revocable trust, life estate or joint tenancy agreement).

Medicaid is a preferred creditor. As a result, Medicaid’s lien must be satisfied before other creditor’s claims and before any bequests to beneficiaries are distributed.

Most Medicaid liens can be negotiated.

3. Medicaid is entitled to recover from the proceeds of an action arising from an accident or malpractice, as the result of which the injured party received Medicaid benefits.           

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

Google has recently made much needed updates to the options available to gain access to the deceased account. Family or estate administrators may now upload death certificates, which Google will review, to determine whether to allow someone the access. Some of the options that fiduciaries now have, include:

1. Close the account of a deceased user.

2. Submit a request for funds from the deceased user

3. Obtain data from a deceased user’s account

4. Notify Google that user is deceased

5. Resolve a potential hijacking of a deceased user’s account

In addition, Google added an option for living users to determine what will happen to their account after death.    These are similar to the recently added “legacy” options by Facebook.

https://support.google.com/accounts/contact/deceased?hl=en

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

What happens if a person dies without direct relatives and without a Will? The result is a long and expensive process for the heirs, that could last years and cost thousands of dollars.

What happens if a person dies without a will? New York State has an administration process under which the assets are distributed to the heirs at law (spouse, children, siblings, more distant relatives). Before the assets are distributed, however, the heirs must prove that (1) they are related to the decedent and (2) there are no other relatives that are entitled to the inheritance. With a spouse, the process is usually easy – a marriage certificate is sufficient proof. With children, the proof is also easy – a birth certificate is sufficient.

Proof of relationship: The process becomes more complicated when there are more distant relatives. You can understand why the Surrogate Court will want to see proof of the relationship – otherwise anyone could walk in and claim to be a relative of the decedent. However, establishing this more distant relationship becomes difficult. For example, how to prove that your uncle is actually your uncle? You can potentially get a letter from a un-related party who will swear that he knows your entire family well and that you are related. But what if there is no such person?

Proof that no other relatives with claims similar to yours exist. In addition, the Surrogate Court wants to ensure that ALL relatives get their fair share. Thus, if your grandfather died without a will, and there are no surviving children, but there are grandchildren, the Court will want to ensure that ALL grandchildren receive their equal share.  At that point, you will have to prove to the court that 1) all the grandfather’s children have died (a death certificate is preferable) and 2) that all the grandchildren are accounted for.

What happens if some of the grandchildren cannot be located, and you are not aware if they are alive or dead? You may have to hire an investigator and search for them. You may also have to publish announcements in local newspapers. And what if these relatives are likely to be in another country? You have to go through the same process, but internationally. The court may even assign a Guardian Ad Litem for these ‘unknown heirs’. Now imagine if the same process has to be repeated for your aunt. Or your cousin. The length of time it will take to locate all the relatives, and to prove that there are no other ones remaining is arbitrary.

There are ways of eliminating this administration process. All of them, however, involve planning prior to the person’s death. Thus, if you know that the family relationship is complicated and it may take years for the heirs to get access to the money, it helps to talk to an estate planning attorney, to evaluate your options.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

Many people believe that their situation is so simple, that they have no need to go to an estate planning attorney. However, I do not pretend to be an expert in many fields of work (I'm not a doctor,  I'm not an engineer, etc.). Why do so many people think that they are an expert in estate planning?

During a regular consultation I usually get the same question 2-3 times “but isn’t it true that …”, to which my answer is most often “no, it is not true”. There are lots of misconceptions about the estate planning and Medicaid law. There are also lots of issues that you might not even be aware of that you need to think about.

Some of the examples include:

1. If you are leaving your entire estate to only one person, to the exclusion of your other family, that person may need to go through YEARS of probate court procedures and hearings  before the assets get distributed to him.

2. If you are leaving your money to a minor child outright, that child will receive all the money once he turns 18. Did you really think the child will be mature enough to handle the assets?

3. If you are signing your will without attorney supervision, there is no presumption of its validity. That means it may be much easier to challenge your Will by anyone who believes he was unfairly treated by you!

4. If one of the witnesses to your will is also a beneficiary under that will, a large part of the bequest to that person may be invalidated.

5. If you are leaving money outright to a person with special needs, that person may lose her government benefits, including health care.

6. If you are leaving money to your spouse, the money can be passed tax free. But if you are leaving money to your children, there may be federal and state estate taxes due.

7. If you are leaving all of your assets to your spouse, and then later the spouse remarries, your children may not receive any money. Is this something that you wanted?

 These are just some of the examples of problems that 'simple' estate planning software can create.  All of the above examples could be avoided, with proper and knowledgeable planning. 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.