Legal Question in Wills and Trusts in New York

Re: Will left to daughter

The executor may be acting in breach of his or her fiduciary duties to the estate. You should contact an probate or estate asap.

You can email or call my office for a free consultation.

Re: Will left to daughter

The attorney is partially correct. Your mother has a statutory entitlement to $50,000 plus one-half of your dad's estate, but it is not automatic.

She must make a written claim in order to receive it.

Declaring your mom incompetent does not negate her rights. If anything, it will further complicate matters since a representative will have to be appointed to protect her interests.

If she is competent, she may renounce her share or just not make a claim.

You should retain an attorney to protect your interests.

Feel free to call or email me with any questions. I do not charge for an initial telephone consultation.

Re: Will left to daughter

Sara:

In NYS, a spouse can not "cut out" a spouse from the will. Please note, if Mom is capable of renouncing, medicaid/nursing home MAY still look to her portion as an asset to be paid for her care. You should get counsel from an elder law atty on this issue. Also, you MUST get a new POA from her before she is unable to consent to same. Good Luck!

Debra

Re: Will left to daughter

The attorney is referring to a NY statute that gives a surviving spouse a statutory right to a portion of the estate, which can be asserted on her behalf, or may be disclaimed by her. You do not state how much the estate is worth or what it consists of. Were any assets held jointly between your mom and dad, or were all assets turned over to dad when she became ill? This is important in relation to the Medicaid issue you raised. If your mom were to renounce this statutory interest, for Medicaid purposes it would be considered a gift from her to you, with a possible charge for the applicable look-back period. This period is determined by the amount of the gift (which would be her statutory share) and the Medicaid NY allowance for average cost of nursing home. For example, if the value of the "gift" were to be $75,000 and the average Medicaid NY allowance for nursing home monthly cost were $5,000, the look-back period would be 15 months ($75,000/$5,000). This time period represents the time it will take for Medicaid eligibility, and runs from the 1st of the month from the date of the gift. Thus, Medicaid coverage could be denied until the applicable period has passed. I suggest having your mom sign a disclaimer immediately to start the clock. Also, if she is still somewhat competent, have her sign a POA to you (so you can act for her, even in making the disclaimer, if necessary) and also a durable Health Directive (Living Will). Finally, you do not say if your mom has any assets personally, as this impacts on the amount of her statutory share rights. Also, if some of the "gift" value were to be used for a prepayment of her funeral expenses, or other expenses for her (such as monies you may have expended as the successor caretaker), these are legitimate Medicaid "spenddowns" which redcue the lookback period. If you have any questions, contact me directly.