Fequently Asked Questions :

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Estate Planning, Elder Law, Medicaid and Long-Term Care Planning

A “last will and testament” is a written document wherein a person states, among other things, their wishes as to how such person’s assets are to be distributed upon their decease.
A “living trust” is a contract created during a person’s lifetime between a person (often called the grantor, creator or settlor) and a person he/she trusts (called the trustee) for the purpose of managing assets during a person’s lifetime and providing for a distribution of assets upon such person’s decease. A property drafted and funded living trust can often eliminate the requirement for a legal process known as “probate.”
A “testamentary trust” is trust which is set forth in a person’s last will and testament and becomes effective after a person’s death only after the probate of the deceased’s last will and testament. The intended purpose is often to provide for a distribution of the deceased’s assets in a more controlled or tailored manner.
A “revocable” trust and an “irrevocable trust” are different in that the grantor of a “revocable” trust retains full power to revoke and modify the trust without any approval or consent, whereas the “irrevocable” trust is typically much more limited as to what can be modified or revoked. Both trusts, when properly drafted, executed and funded, can effectively avoid the legal process known as probate.
A “living will” is a written, legal document that states medical treatments you would and would not want to be used to keep you alive (e.g., artificial nutrition and hydration), as well as your preferences for other medical decisions, such as pain management or organ donation.
A “healthcare proxy” is a document with which a person appoints an agent to legally make healthcare decisions on behalf of such person, if the person is incapable of making and executing the healthcare decisions stipulated in the proxy.

A “power of attorney” is a written document wherein a person (principal) gives authorization to another person (agent) to represent or act on such person’s behalf. While there are a variety of types of power of attorney (general, durable, special, medical), the most common form of power of attorney utilized in connection with an estate plan is a “durable” power of attorney.

When a power of attorney is durable, that means there’s language within the document which states an agent’s authority continues to apply if you become incapacitated. There is no automatic deadline by which these powers expire. A durable power of attorney stays effective until the principle dies or until they act to revoke the power of attorney that was granted to the agent.

Medicare and Medicaid are two separate, government-run programs which are operated and funded by different parts of the government and primarily serve different groups. Medicare is a federal program that provides health coverage if you are 65+ or under 65 and have a disability, no matter your income. Medicaid is a state and federal program that provides health coverage on a means-tested approach. If you are eligible for both Medicare and Medicaid (dually eligible), you can have both. They will work together to provide you with health coverage and lower your costs.

When an application for Medicaid coverage is submitted, Department of Social Services will conduct a review of all assets owned, previously owned, transferred, or gifted by the applicant for a “certain” period of time immediately preceding the Medicaid application. That “certain” period of time depends on whether the application is for “Community” (in home) or “Institutional” (in a skilled nursing facility).

Applications filed for “Community” Medicaid after January 1, 2022 will have a “lookback” that will be phased in to eventually be 30 months (2.5 years). Once the new “community” Medicaid lookback is implemented, assets transferred since Oct. 1, 2020 will still be subject to the lookback. For applications filed before January 1, 2022, transfers of assets after Oct. 1, 2020 will not trigger any transfer penalty because there is no lookback. Initially on January 1, 2022, the lookback will be 14 months, requiring records back to Oct. 1, 2020. Every month the lookback period will increase by one month until it is 30 months in April 2023. Applicant and spouse must submit all financial records during the lookback period, even if the spouse is not applying for Medicaid or is doing a spousal refusal.

Applications filed for “Institutional” Medicaid are presently subject to 60 month (5 year) lookback review of assets.

Application is made through the Department of Social Services in the County in which the applicant resides.
The short answer is yes in certain circumstances. The longer answer is that while an applicant may achieve eligibility for Medicaid coverage, a lack of planning may expose the applicants assets and income for Medicaid recovery and spending.
This is an area of legal practice where attorneys guide and advise aging persons (most often 65 years of age and older) with issues that are often faced by persons of similar age.
If a person dies without a valid Last Will and Testament as a New York domicile and there are assets that are not otherwise distributed by operation of law, such assets are to be distributed pursuant to New York State’s intestacy law set forth in the EPTL 4-1.1. A legal process known as an estate “administration” is required. This process begins by first determining who is in the deceased’s family. If there is a spouse and no children, the spouse receives 100 percent of the estate. If there is a spouse and children, the spouse receives $50,000 plus half of the balance of the estate. The children inherit everything else. If one of the children is deceased and they had children, those children take their deceased parent’s share. When there are just children and no spouse, the children share the estate equally. When there is no spouse and no children, parents inherit everything. When there is no spouse, no children, no parents, siblings inherit everything. A representative must step forward to be appointed on behalf of the Deceased’s estate and complete the administration process with the Surrogates Court.
The person(s) named in the Last Will and Testament as the “executor” is responsible for the filing of the Last Will and Testament with the Surrogates Court, along with a petition for probate and other required affidavits and documentation. This process is known as “probate.” Once the last will and testament is admitted to the Court as a valid legal document and the Surrogates Court issues “letters testamentary” to the executor, then such person shall distribute the deceased’s assets in accordance with the wishes stated in the last will and testament.
The exact wording of the last will and testament will determine whether or not the gift lapses (expires) or is instead allocated to another person.
There is a New York State and Federal tax that is charged to estates of certain threshold values.
In 2021, a person has a Federal lifetime exclusion of $11,700,000 and a New York State lifetime exclusion of $5,930,000. This means that there is no federal or state estate/gift tax if the deceased’s estate is lower than the specified amounts and the deceased had sufficient uneroded amount of the lifetime exclusion. On January 1, 2026, lifetime exclusion amounts are set to sunset back to the pre-2018 amounts, as adjusted for inflation.
It depends on a variety of factors (was there a step up in basis at the time of deceased’s death, has there been substantial increase in the value of the asset after the deceased’s death, etc.).

The “ongoing” activity of the business and the “distribution of business assets” are two separate issues. The analysis is as follows: (a) what type of business entity was the business (corporation, limited liability company, etc.); (b) was the deceased the sole owner of the business entity; (c) was their a written agreement governing the business owners and specifying what the process is for when an owner deceases; (d) if no agreement, what does the default New York State law provide; (e) are there ample assets, funds, and skilled resources to continue the business, and, if yes, what are the terms for the use of such assets and skilled resources.

A “business success plan” is written plan (often corporate documentation and estate planning documentation) that establishes the procedure to be followed when a business owner deceases, retires, or becomes disabled.

You may revoke your power of attorney, living will or health care proxy by communicating your revocation to the agents named in the document, sending written notice to your agents and any banks, institutions, physicians, or other persons who may have relied on such documentation.

Real Estate

Single or multi-family house, condominium, townhouse, and cooperative apartment
  1. Assemble your POWER TEAM (attorney, real estate agent, mortgage lender, home inspector, and title company);
  2. Obtain a mortgage loan pre-approval if financing is needed;
  3. View a property of interest and make a purchase price offer;
  4. Perform a home inspection (typically through a licensed inspector);
  5. Review, negotiate and execute the proposed contract of sale;
  6. Make application for a mortgage loan and comply with lender requirements and requests;
  7. Perform an appraisal of the subject property;
  8. Perform title searches and review a land survey;
  9. Coordinate the schedule of closing;
  10. Attend closing

This process from time of a fully signed contract through closing is often 60-90 days in New York (Long Island and the 5 boroughs).

In most cases, the initial draft contract is prepared by the seller’s attorney. The buyer typically signs first, pays the down payment check, and then the seller is scheduled to countersign the contract.
An appraisal is a written report generated by a licensed third party real estate appraiser hired by your mortgage lender that states a value of the subject property. There are a variety of methods used in determining the value of property, but the most common approach is for the appraiser to review recent and relevant “comparative sales” of other similar properties in your immediate neighborhood. Your mortgage lender typically orders the appraisal.

Title searches are a compiled report of responses from the Town, County, State, US Bankruptcy and Federal agencies regarding each of the sellers, purchasers, and the subject premises. These searches include responses from the Town Building, Highway and Fire Department, County Clerk’s office. The purpose of the searches is to give the parties an accurate picture as to the public record (liens, municipal approvals, violations) that may impact the parties and the premises.

There are essentially three categories of charges on the buyers side of a title company invoice: (a) premiums for title policies, (b) County recording fees and State recording taxes, and (c) ancillary services and searches. Categories (a) and (b) are set by the State and County; Category (c) varies from title company to title company but typically is the least expensive category on the invoice.

If you are obtaining loan financing for your real estate purchase, your lender will require that you pay for and obtain a “loan policy” of title insurance protecting and insuring your lender. While you are not legally required to purchase an “owners policy” of title insurance protecting and insuring yourself, many attorneys will not represent a purchaser who does not purchase an “owners policy” of title insurance because of the potential risk exposure to the purchaser.
A land survey is performed in order to locate, describe, monument, and map the boundaries and corners of a parcel of land. It might also include the topography of the parcel, and the location of buildings and other improvements made to the parcel. When purchasing a property, it is very important to have a recent guaranteed land survey. If you do not obtain a recent guaranteed land survey you will likely not be able to determine the legal boundary lines of your property. Generally, the seller is not obligated to provide purchaser with a copy of an existing land survey and the cost and task of obtaining a new land survey is on the purchaser.

While it is always the hope that the title searches do not reveal any issues that require corrective action, here are a few common issues:

  1. Old mortgage lien that was previously satisfied still reflecting as open;
  2. Fence is located inside of the property boundary line by more than twelve inches;
  3. Federal or state income tax lien;
  4. Judgment lien;
  5. Open building permit or violation;
  6. Previous deed transfer within the chain of title was without consideration and an affidavit is needed;
  7. Judgments, liens, or mortgages pertaining to a prior owner.

While each of the above issues are typically resolvable, it is important that these issues be detected as early as possible and that your attorney is knowledgeable and skilled in this area.

A “certificate of occupancy” is document issued by the building department for the municipality where the property is located. A “certificate of occupancy” is first issued upon completion of the structure (house, condominium, townhouse) in accordance with the local building rules. If an owner makes modifications to the structure/property (e.g., in-ground swimming pool, dormer, extension, outside cellar entrance, garage conversion to living space, etc.), an owner is often required to obtain additional certificates of occupancy/compliance for each additional improvement.
Generally, the best first step is to locate your paperwork from when you purchased the property and any additional documentation that you accumulated along the way. Copies of the DEED, LAND SURVEY, TITLE INSURANCE POLICY, CERTIFICATES OF OCCUPANCY, are a great resource. Second, assemble your power team (attorney and real estate agent). The communication between you and your power team will help best prepare you for the sale process and often alleviate unnecessary stress.
A “new construction” purchase transaction varies significantly from a “resale” transaction. Some key differences include: (a) a home warranty; (b) additional costs for buyer; (c) importance of timing for completion of the construction, your loan approval, financing and funding; (d) including a detailed specification list in the contract; (e) investigation into the reputation of the builder constructing the home; (f) understanding as to what delays can occur (i.e., material shortage, government shut-down, increase in material costs); (g) non-refundability of payments made for “extras”, etc. It is very important that you select an attorney who is experienced and skilled in representing clients in “new construction” transactions.
A condominium is a private residence in a multi-unit structure that includes ownership of commonly used property. A cooperative apartment is also a multi-unit building, an owner of a cooperative apartment actually owns shares of stock in a corporation that owns the actual building and receives a lease that allows the owner to occupy a specific unit. In other words, a condominium owner actually owns the condominium unit, whereas a cooperative apartment owner does not directly own the unit.
A townhouse is commonly a co-joined housing unit which appear similar to row houses. In most townhouse communities, owners own their unit’s interior and exterior, including the roof, lawn and driveway, but not the communal areas. In contrast to condominium owners, condominium owners only own the interior of their unit. All other areas, including the building exterior, lawn and communal areas, are property of the Homeowners Association (HOA).
A homeowner’s association (HOA) is an organization that makes and enforces rules for a subdivision, planned community, or condominium building.
The Property Condition Disclosure Act is a mandatory New York State law requiring the seller of residential real property to either (a) complete a disclosure document and provide a copy to the purchaser along with the proposed contract of sale before it is signed or (b) issue a $500 credit at closing to the purchaser in lieu of completing and delivering the disclosure statement. There are a few exceptions where certain types of sellers are not obligated to comply with the PCDA. Your lawyer can confirm whether or not you are exempt.
There is often confusion as to the meaning of the words “AS-IS” in the context of a real estate contract of sale. The term “AS-IS” is generally understood as meaning “as the premises presently exist” and buyers are often held responsible for any defects that existed at the time of contract which would have otherwise been reasonably discovered by an inspection. Latent (hidden) defects that would not be easily discoverable by the inspection of the Purchaser are NOT included, and may still cause liability to the Seller.
When a purchaser is entering in a contract for the purchase of real estate and loan financing will be required in order for purchaser to complete the transaction, it is very important that the contract include a “mortgage contingency” provision. In short, a “mortgage contingency” provision states that if the purchaser promptly and truthfully makes an application for the specified mortgage loan and is denied, purchaser is entitled to a refund of the down payment paid by purchaser at the time of the signing of the contract. However, great caution should be exercised here in understanding what risks are assumed by the purchaser.
When a purchaser is entering in a contract for the purchase of real estate and loan financing will be required in order for purchaser to complete the transaction, it is very important that the contract include a “mortgage contingency” provision. In short, a “mortgage contingency” provision states that if the purchaser promptly and truthfully makes an application for the specified mortgage loan and is denied, purchaser is entitled to a refund of the down payment paid by purchaser at the time of the signing of the contract. However, great caution should be exercised here in understanding what risks are assumed by the purchaser.
Typically, the Seller pays the real estate broker commission. However, please check your contract before signing to be sure who is obligated to pay the commission.
Often a contract will have a provision that permits the seller to remain in possession and occupancy of the property after closing for a certain number of days provided seller deposits a sum of money with seller’s attorney to ensure seller timely vacates during the post closing period without causing any damage to the property.
If the premises have solar panels attached, it is very important that the purchaser review the terms of any outstanding solar agreement or power re-purchase agreement before signing the contract for the purchase of the property and for a provision to be incorporated into the contract relating the purchaser’s obligations regarding the solar panels.
If the seller has engaged a company for grieving the property taxes, the contract should contain and provision specifying who is obligated to pay the fees of the tax grievance company and purchaser should review the terms of that agreement prior to signing the contract.
Often the contract will have a provision stating that the purchaser shall reimburse seller at the time of closing for any prepaid property taxes for the period of time after closing or delivery of possession, whichever occurs later.
The words ON OR ABOUT preceding a closing date in a contract a generally understood to mean “on the specified date or within a reasonable time thereafter.” The term reasonable period of time is commonly deemed to mean 30 calendar days. To avoid confusion, you may want to define the ON OR ABOUT period within the body of the contract.
Closing dates specified in a real estate contract of sale are often a target timeframe for closing and not a hard fixed date. However, when the words TIME BEING OF THE ESSENCE appears after a date the draftsman is intending to set a hard fixed date for performance.

In the 5 boroughs of New York and on Long Island, most residential real estate transactions closing within 60-90 calendar days of the date of a fully executed contract.  The parties, however, can jointly select a different timeframe before entering into contract.  There are a few major milestones along the timeline of residential real estate transaction:

  1. Enter full contract;
  2. Lender successfully completes appraisal of property;
  3. Lender issues firm mortgage commitment to purchaser;
  4. Title searches and land survey are satisfactorily completed;
  5. Lender issues “clear to close” notice to purchaser;
  6. Attorneys for lender, seller and purchaser jointly select a closing date;
  7. Attend closing; and
  8. Seller’s delivery of possession of the property to Purchaser.
If the contract of sale does not specifically state that the Purchaser’s obligation to purchase the property is expressly contingent upon purchaser completing the sale and closing of another property, Purchaser assumes the risk of loss of the down payment if Purchaser cannot complete the closing of the purchase of the property due to purchaser’s inability to close on the sale of another.
Depending upon the nature of the violation issued against the property and the terms of the contract, the property owner will be obligated to contact the municipal building department to resolve the open violation.
A SHORT SALE transaction is where a seller enters a contract to sell a property for a price less than what the seller owes to the mortgage lienholders and the mortgage lienholders consent to receiving less monies than the actual balance owed.
If the Seller is not a US Citizen or permanent resident alien, compliance with FIRPTA is required.
If the purchase price is $1,000,000 or more, Purchaser will be obligated to pay a “mansion tax” to New York State for an amount equal to at least 1% of the purchase price.
If the property is located within the Peconic Bay region (East Hampton, Southampton, Shelter Island, Southold and Riverhead, and it covers purchases made in all the villages and hamlets within those towns), the purchaser will be obligated to pay a tax known as the Peconic Bay tax.
New York City and New York State each require that a “transfer tax” be paid upon the sale of any real property or cooperative apartment. The amount of the tax and who pays the tax varies, but generally it is an obligation to be paid by the seller unless the contract between the parties states to the contrary.
A “flip tax” is a fee that the cooperative corporation charges upon the sale of a cooperative apartment. It is generally paid by the seller, but not all cooperative corporations charge a flip tax.
“Mortgage tax” is a tax imposed by New York State on a borrower based upon the amount of loan funds that a purchaser borrowers in connection with a real estate transaction.
Often there are administrative, processing, move-in, move-out, closing or attorneys fees, charged by a cooperative, condominium or townhouse HOA. It is important that the contract of sale specify who is responsible for these fees.

Business Law and Business Succession Planning

  1. Sole proprietorship
  2. General partnership
  3. Corporation
  4. Limited liability company
  5. Limited partnership
  6. Business corporation
If you are the sole owner of a business, do you have a plan for the ongoing activity of your business or distribution of its assets upon your retirement, disability or death?
A “business succession plan” is a combination of business agreements and estate planning documentation to plan for the ongoing activity of your business or distribution of its assets upon your retirement, disability or death.
The deceased business owner’s interest will be transferred pursuant to applicable business corporation law and the deceased persons estate planning documentation.
Limited liability company structures offer flexibility in how profits and losses are shared without regard to percentage of ownership interest and management that is not otherwise available to corporations.
Yes. Licensed professionals are required to obtain certain approvals in connection with the formation of their business entities.
No. Unlicensed professionals cannot legally partner with or receive a share of the revenue in a professional business entity.
Generally, an individual owner of a business is not personally liable for the debts of a business unless those debts are personally guaranteed, the corporate veil is pierced, or a case of fraud is proven.
No, unless the company’s governing business agreement requires capital contributions.
If a person intends on buying and holding real estate for rental purposes, a limited liability company is often the best form of entity because of the pass-through income tax treatment.
If a person intends on buying and flipping properties, one can become subject to self-employment tax because the income can become deemed active income and therefore a corporation may be a better entity choice.
Yes. An effectively drafted, executed and funded estate plan can greatly assist with creating a business succession plan.