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Frequently Asked Questions on Asset Protection

Mark H. Weiss, P.C. concentrates much of our practice on estate planning on Long Island. In our 20 years of practicing elder law, we’ve gained great insight into the advantages of a clearly drafted estate plan and the problems that arise from a lack of planning. We offer this brief list of questions and answers as a service to potential clients and hope that you will contact us if you have further questions.


Commack Elder Law Attorney | Mark H. Weiss | FAQ 1

What happens to a NY property if the owner dies without a will?

When a New York property owner dies intestate (without a will), his or her property transfers according to the state’s laws of intestacy. These laws cover a multitude of combinations of surviving relatives, including a spouse, children, adopted children, parents and grandparents.

Commack Elder Law Attorney | Mark H. Weiss | FAQ 2

Can I exclude my husband/wife/child from my will if I live in NY?

In general, a will can be written with the negative intent of excluding an heir from any inheritance. This can be done for practical reasons, in the case of a financially sound heir with needier siblings, or for reasons of disaffection. However, spouses receive special protection. A spouse can choose to accept the terms of a will or invoke a statutory elective, the portion of the estate to which they are entitled under the laws of intestacy.

Commack Elder Law Attorney | Mark H. Weiss | FAQ 3

Do I need a deed to transfer property in NY?

You need a deed and must also file a tax affidavit and a Real Property Transfer Report. If you do not have a deed in your possession, your attorney can clear title, and a new deed can be drafted.

Commack Elder Law Attorney | Mark H. Weiss | FAQ 4

What assets are managed by an estate plan?

An estate plan is your overall strategy for managing your wealth. Within that plan, you may have specific legal entities established to manage your assets. These entities are called trusts, and which assets they hold and manage is entirely up to you. Some trusts hold real estate while others hold stock portfolios or other financial instruments. About the only thing a trust cannot manage is another trust.

Commack Elder Law Attorney | Mark H. Weiss | FAQ 5

I am an executor of an estate in Long Island. Do I need an attorney?

An executor of an estate has specific fiduciary duties and ethical guidelines. An inexperienced executor should have an experienced attorney to guide him or her through the probate process.

Commack Elder Law Attorney | Mark H. Weiss | FAQ 6

What if no advanced Medicaid planning was ever done and a nursing home stay is required?

For anyone receiving Medicare, the program will pay for a limited nursing home stay. An extended stay (beyond 20 to 100 days) will likely exhaust Medicare benefits. Medicaid assistance then becomes necessary for most patients, but many will not be eligible until they pay down to poverty levels. However, even at such a late juncture, you can often protect one-half or more of your nonexempt assets if your attorney employs proper asset protection techniques.

Commack Elder Law Attorney | Mark H. Weiss | FAQ 7

If I gave gifts to my children and family members, how does that affect my Medicaid eligibility?

Medicaid will treat any gift made within the five-year look-back period as a transfer and count it as an asset in your possession. They will require you to spend that much on your care to nullify that transfer. Medicaid may even sue family members for transfers made.

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