Frequently Asked Questions

If I don't have a will, what happens to my property when I die?

If you don't have a will, state law governs how your property is distributed when you die. Generally, if you're married and have children, your spouse receives the first $50,000 of your property and one half of the remainder, and your children share the rest. The rules get more complicated for other situations, or if your loved ones predecease you. You may not like what state law dictates, and there may be complications and delays in the settlement of your estate if you don't have a will.

What is a power of attorney?

A power of attorney is a document by which you appoint an agent (anyone you choose, but they must be over 18 and should be financially responsible) and you give that person the authority to handle your property and your financial affairs. You may grant a wide variety of powers, and you may customize the powers to suit your needs. Powers of attorney may be simple or elaborate, depending upon your needs and preferences. The power of attorney becomes valid upon your signature and that of your agent, who is required to acknowledge that they understand their legal responsibilities to you.

The New York Legislature made significant changes to the power of attorney law in 2009 and 2010. If your power of attorney was prepared before September 2010, you need a new one.

What is a health care proxy?

A health care proxy is a document by which you appoint a proxy (any person over 18 and responsible) to make your health care decisions for you if you are unable to do so for any reason. The health care proxy becomes valid if and when you become unable to direct your own care.

What is a living will?

A living will is a set of instructions about avoiding life-sustaining procedures if you don't wish to have them. It explains the circumstances in which you want to have such procedures stopped or avoided; these typically include terminal illness, imminent death or your being in a state of profound dementia or permanent unconsciousness. A living will is necessary to terminate artificial feeding (feeding tubes).

What does a simple will cost?

We charge fixed fees for estate planning, and we can quote them for you after meeting with you and determining your estate planning needs. Please note that a good estate plan includes not only a will, but also a power of attorney, health care proxy, living will and appointment of agent to control disposition of remains.

How can I keep my property from being taken by the state to pay for my care if I have to go into a nursing home?

This is too complicated to give a full answer here, but there are very effective ways to preserve your property. It often involves preparation of a trust for your property. You can typically receive the income generated by the trust but you can't take the property back. There are also other ways to protect your property if a trust isn't a good idea for you. This requires a careful discussion.

How does the Medicaid program work?

Medicaid is a federal program, administered in New York at the county level, to pay for health care for persons who can show they are in need. Medicaid pays for skilled nursing care in a nursing home or home setting. The eligibility requirements are complex, but generally you must show that you have very little property, and that almost all of your income is going for your care. Medicaid will pay the difference if you qualify.

How can I qualify for Medicaid if I need to go into a nursing home, or have someone take care of me at home?

You must make an application, which involves the gathering and submission of a great deal of financial information. Generally, you must show the amount of your income and the value of your property, and, if you are in a nursing home, you must disclose whether you have made gifts to others within the last five (5) years. If you have, you may be declared ineligible for a certain period of time.

If you have too much property to qualify, we can help you qualify and still preserve some of your property.

What if I need Medicaid to pay for my nursing home care, but I know I am going to be penalized for the gifts I have made in the last five years?

If you still have some money or property, we can help you manage the penalties that will be assessed against you. If you have too little to "cover" the penalty, we may be able to help you reduce the amount of the penalty.

Should I buy long-term care insurance?

Everyone over about age 50 should consider this. It is getting harder and harder to qualify for Medicaid. Unfortunately, if you are elderly and in declining health, you probably won't be able to find an affordable policy, but it is worth investigating anyway.

How much does it cost to protect my property from being sold to cover long-term care costs?

You may be surprised at how affordable the simpler techniques are. The more sophisticated techniques are expensive, but the cost is often very small in comparison to the value of the property that could otherwise be lost.

If my spouse has to go into a nursing home, what will happen to me?

Nursing home care is very expensive. If your spouse qualifies for Medicaid, you may be entitled to keep a portion of your spouse's income to support your household. There are also various regulations that say that certain types of property don't "count" against Medicaid eligibility. You will need an experienced elder law attorney's advice to understand and take advantage of these regulations.

Would it be better for me to give my property to my children, so I don't lose it if I have to go into a nursing home?

This can work in certain situations, but you have to understand the rules and the consequences of making gifts. The Medicaid system imposes penalties for giving away your property. We can help you understand how this works, and design a plan that complies with the law and the regulations.

How much will it cost to probate my will when I die?

We quote fixed fees (rather than hourly) for settlement of estates. The fees take into account the size of your estate and the anticipated complexity of the settlement process, and any other relevant factors. We quote the fee in advance so that your administrator or executor knows what to expect.

Would it be better for me to just give away my property before I die, to avoid probate and taxes?

Don't try this without an attorney's guidance. It may be a good idea to do it under certain circumstances, but it may also hurt your eligibility for Medicaid, or it may expose your loved ones to taxes that could otherwise be avoided.

Matrimonial And Family Law

Why do I need an attorney to get a divorce?

While a person can obtain a divorce without an attorney, we don't recommend it. The laws governing divorce in the state of New York are complex. A consultation with a knowledgeable attorney is the best way to learn your rights and responsibilities and what courses of action are available to you. Having an attorney represent you is the best way to be sure your rights are protected.

We don't have any children or property – why can't we just get divorced?

Many things that people may not think of as "marital property" are classified that way under the law. Marital property is divided equitably. In order to be sure that all of the marital assets are being considered, and each party's rights protected, an attorney should be consulted prior to commencing a divorce action.

What is equitable distribution?

Equitable distribution is a legal principle that requires a fair division of marital property between the parties in a divorce. It doesn't necessarily mean "half and half." The classification of "marital property" and how the courts will determine its equitable distribution are best explained by an attorney after he or she has had an opportunity to review your financial situation with you.

Can we have the same attorney?

No. In order to make sure that each party gets their rightful protection under the law, each party should have their own attorney to represent his or her own interests.

How much does it cost to get divorced?

Each situation is unique. The cost of a divorce depends on many factors, including, but not limited to, whether there are children, real property, pensions, investment accounts, etc. Another factor is how cooperative the parties are when negotiating the settlement. After consulting with you, an attorney can give you an estimate of the costs involved in your situation, but the actual cost will depend on the circumstances and time involved. There are also various court costs and fees that are required by law and must be paid in order to obtain a divorce.