Probate is the legal process of submitting to court for approval the will of someone who has passed away. The court validates the will and legally appoints the executor named under your will. An executor is responsible for carrying out the affairs of the estate, including collecting assets, paying debts, such as taxes, and distributing estate assets in accordance with the will.

Many people want to avoid probate. It is a common misconception that probate in New York can take over a year and can be expensive. We can counsel you as part of your estate plan so the headache and expense can be avoided, as well as the time delay. It is common for a probate to only take a couple of months when it is handled correctly.

But there are times due to certain circumstances that probate can take over a year to complete and it can be expensive. A probate lawyer at our firm can help expedite the process and keep the fees down.

We can help you avoid probate. But, before you decide that avoiding probate is your personal goal or your New Year's resolution, it's important that you realize that avoiding probate does not mean avoiding estate taxes and trust and estate administration. Avoiding probate may not make the estate settlement process less complicated or time-consuming.

Estate and tax planning with our firm will give you a personal understanding of the strategies that make the most sense for you, given your situation and your goals. For your plan to work, your plan must be legally valid under New York law. Avoiding probate may be one of these goals, or you may find that it is in direct conflict with your other goals. We'll know, and you'll understand, soon after we meet. From there, it's time to execute the plan, and proceed quickly to achieve the goal that we all have: peace of mind.

We can help you really avoid probate by advising you as to the proper legal documents and how to name your assets and beneficiary designations. Forms to create a trust that are found in computer software, at stationery stores, and online are not written with your situation in mind and may not dovetail with New York law. This means that those forms will not give you and your family maximum benefit.

Usually a trust(s) is established to avoid probate, but establishing a trust alone does nothing! Assets must be transferred into the trust, or otherwise those assets must go through probate. It might seem silly, but it's shocking how many people visit our offices having paid for trusts by other firms, but never put any assets inside the trust.

Here's how we feel about it: Our firm's job is not done until all your ducks are in a row and your assets are where they belong. We will help you work with the banks and other financial institutions to make this happen. Everyone will sleep better then!

No. The process is instead called an Administration Proceeding. This proceeding is similar to a probate but is often more complicated. The Court has to decide on an Administrator to oversee the affairs of the estate. The Administrator is usually a family member. He or she has the same responsibilities as an Executor, but, in New York, because there is no will, the Administrator must distribute assets according to New York State law.

No! There are many assets that totally avoid probate (they can end up in probate if they are incorrectly titled, or if the wrong beneficiary is named). These may include IRAs, life insurance, and jointly-owned property.

But remember, even when assets avoid probate, they are still subject to estate administration after an owner dies. This includes the gathering and valuing of assets, the payment of debts and expenses, accounting of income and expenses, distribution of assets, and payment of taxes, just like in probate.

There are many reasons not to make avoiding probate a do-it-yourself project. You should not avoid hiring a probate lawyer to help with you with the trust and estate administration. Often, people do not realize how important it is to handle the estate administration properly, or else beneficiaries (even family members) can create a lot of problems for the Executor who is personally liable for any mistakes.

It depends on your family members. Do they have the knowledge, do they have the time, are they capable of handling any family disputes? The job of executor can be trying, time-consuming and difficult. That is why you need to think twice before you make that decision in your will.

You can control who the executor will be by naming that person in your will. This is usually a family member or friend who will be responsible for a variety of responsibilities (see the list below). To decrease the burden on any one family member or friend, some people name co-executors. Notwithstanding, an executor will always want to use the expertise of a probate attorney to provide professional help at the time the estate is being settled. For example, we recently saved a family over $30,000 in taxes because of taking certain legal steps during the estate administration.

You can also choose to name a professional executor (such as a law firm or bank or accountant) to carry out the wishes stated in your will. In addition to lifting the significant time burden involved on friends and family, a professional executor can often make the process go faster, anticipating any potential problems that may not be apparent to a friend or family member.

What are the benefits of working with a professional executor? Delays are avoided, arguments headed off at the pass, property and money go to whom you intended quicker. In some situations, why set up your family for an all out war because you have asked one of your children to be the peace keeper?

If you do not name an executor, or if the person that you name is unable or unwilling to be the executor, the court will appoint someone. This may result in someone being executor that you would not have wanted, or worse, a complete stranger!

Executors are responsible for:

• Gathering and valuing assets.
• Preparing and filing appropriate court documents.
• Overseeing the disposition of estate assets, in accordance with the will.
• Resolving any family disputes.
• Payment of debts and expenses.
• Accounting of income and expenses to the beneficiaries.
• Distribution of assets.
• Setting up trusts under the will.
• Preparing and filing of tax returns listed below in a timely matter:
  1. Final federal and individual income tax returns.
  2. Federal and New York estate tax returns.
  3. Federal and New York estate fiduciary income tax returns.

The team at Vincent J. Russo & Associates, P.C. is often asked by executors like yourself to help you through the administration process. A probate attorney on our team will make sure you understand the overall strategy, every step along the way, and the total cost.

Our law firm will:

• INFORM you so that probate and trust and estate administration are understood.
• GO to court for you to represent you as executor.
• ADVISE you of your duties and answer any questions.
• PREPARE and FILE appropriate court documents to relieve worry about finding the right forms, filling them in correctly, and driving to Surrogate's Court.
• PREPARE and FILE appropriate tax returns in a timely manner.
• ENSURE that the estate assets are distributed to the right people.
• RESOLVE any family disputes.
• ANALYZE AND DETERMINE how to save estate, individual income, and fiduciary income taxes.
• IMPLEMENT estate planning for beneficiaries, especially family members such as a surviving spouse and adult children.

Supplemental Security Income (SSI) was created to ensure that the elderly, blind, and disabled have a guaranteed minimum monthly income for living expenses. The amount paid is a combination of federal and state dollars and there is a formula to determine the amount, depending upon what other income there is available Though it is administered by the Social Security Administration (SSA), eligibility is based only on financial need, and, unlike Social Security Retirement Benefits or Medicare, payments are not dependent on any amount having been paid into the Social Security system.

People who qualify for SSI usually also qualify for Medicaid, a government program which covers many health care costs.

Social Security Disability Income (SSDI) pays benefits to those who are unable to work according to the very strict Social Security definition of disability. Benefits continue until the beneficiary is able to work again or reaches retirement age (in which case disability benefits become retirement benefits). Unlike SSI, you must have paid Social Security payroll taxes to collect SSDI benefits. Eligibility and benefit amount depends on age and number of accumulated work credits. After two years of receiving SSDI benefits, the beneficiary automatically becomes eligible to receive Medicare, even if they are less than age 65. Certain family members may also qualify for disability benefits, such as children of a covered worker. We can help you sort through the maze of government rules to determine what your loved one with a disability is entitled to.

A special needs trust is created with the intent of supplementing a disabled person's income in order to pay for wants and needs not covered by government benefits.

If there are proceeds from a personal injury or medical malpractice settlement or judgment, then the special needs trust can be a lifesaver because the proceeds can be protected for the injured party while maintaining access to Medicaid, if necessary, to pay for the high cost of extended long term care.

In many states, the terms special needs trust and supplemental needs trust are used interchangeably. However, in the state of New York, a special needs trust specifically refers to a trust set up for a disabled person who already has his/her own assets, and a supplemental needs trust is set up for a person with disabilities by a third party such as a parent for such person.

In either case, it is extremely important to make sure that the trust meets the requirements of the government program(s) from which the disabled person currently benefits or is seeking benefits. If the trust does not comply with these requirements, the person with special needs (called the trust beneficiary) could lose his or her government benefits!

A supplemental needs trust can only be created for a person under the age of 65, and cannot be created by the individual for whom it would benefit. The trust usually covers things like education, clothing, recreation and uncovered medical care, etc. Because the assets were never owned directly by the person, someone who is a trust beneficiary of a supplemental needs trust can still receive benefits from government programs.

There are two forms of trust that allow someone to qualify for Medicaid and SSI: special needs trusts (sometimes referred to as payback trusts or d4a trusts) and pooled trusts (sometimes referred to as a d4c trust).

A special needs trust (payback trust or d4a trust) must be created by a parent, grandparent or legal guardian for a disabled person under age 65. Any money that remains in the fund after the beneficiary's death must be used to reimburse (or pay back) Medicaid.

A pooled trust (d4c trust) is administered by a non-profit organization with the assets of the disabled person held in a separate account for his or her benefit. Depending upon the terms of the trust, the remaining account balance on the death of the person may pass to the charity or have to first be used to pay back Medicaid.

Our law firm can outline the pros and cons of these two different types of trusts and advise you as to which one is best for you.

Not without first talking to a qualified special needs (disability) lawyer experienced in special needs planning! Leaving money outright to your child may make them ineligible to receive government benefits and there may be no one with the legal authority to manage the funds. We can help you accomplish your goals without endangering your child or grandchild's benefits. Trusts can be very helpful, such as the supplemental needs trusts discussed above.

In New York, once your child reaches the age of eighteen, you will not be able to make legal decisions for your child unless you are the legal guardian. Some people with special needs are capable of executing their own documents. Our law firm can advise you as to whether these documents can be executed or whether a legal proceeding needs to be commenced in the court for your appointment of legal guardian of your adult child. If your minor child is developmentally disabled or mentally retarded, then an Article 17A guardianship proceeding should be commenced six months before your child's eighteenth birthday. We can help you with this process.

Our law firm is willing to act as trustee for your child should you pass away. We care about your child's welfare and want you to feel secure that we will advocate for him or her after you are no longer able to.

What is the Difference Between an Article 17a Guardianship and an Article 81 Guardianship? An Article 81 Guardianship is for people of any age who can not make their own legal decisions. It is obtained in the New York Supreme Court.

An Article 17A Guardianship is for people who were born and certified as mentally retarded, developmentally disabled prior to age 22, or brain injured. It is obtained in the Surrogate Court, usually before a child reaches the age of eighteen. This type of guardianship has the advantages of being more family-friendly and costing less in legal fees because it is processed in New York Surrogate's Court.

A special needs attorney (disability lawyer) at our law firm can help you determine whether a guardianship is necessary, and the steps to be taken to be appointed legal guardian. Our firm can also advise you as to your responsibilities as legal guardian.

You care about your loved one. You want them to have the best possible care. If you are like most families, the cost of care comes as a tremendous shock. The care that's needed is often unaffordable over the long run. Your best strategy depends on the health of your loved one, whether they need care today or in the future, their financial resources, and other factors. As your elder law attorney, our law firm is uniquely qualified to provide you with solutions.

From questions about coordinating care in the community, to finding a quality nursing home, our elder care attorneys are here for you. We can guide you through all the financial and health care decision-making issues which need to made in the future.

We are experienced elder law attorneys that the experts rely on. Health care professionals such as hospital discharge planners, legal and financial professionals such as our attorney colleagues, and accountants and financial planners rely on us to help their clients in these areas. Let us become your elder law attorneys - Your Family's Peace of Mind Law Firm.

Your primary residence has unique protections under Medicaid, but there are also traps for the unwary such as Medicaid estate recovery. These protections are multiplied if a spouse or special needs child lives with you. Even if this is not the case, there are many ways to protect your home, and our elder care attorneys will work on your behalf to save your home.

Although many people come to us in crisis, the sooner advice is sought from an elder law attorney, the better off the client will be. For example, in light of the Medicaid eligibility rules getting tighter, the laws favor those with time to plan. Also, for clients who are both healthy enough to purchase long term care insurance, and who can afford the premiums, this kind of insurance is an increasingly attractive option. We can advise you as to long term care insurance, as well.

However, even in a crisis, it's never too late to help a client, even after they have entered into the nursing home. As elder law attorneys, we can help make sure your loved one enters a quality nursing home and implement a plan to pay the nursing home bills without losing all of your loved one's assets.

We don't want to waste your time and money. Why take time out of your busy life to meet with us if we cannot help you? Instead, we encourage you to call us for a review of your situation over the phone, at no charge to see if a meeting makes sense. You will know before you meet with us and before you incur any charges if an elder law attorney on our team is able to help.