This page answers the most common questions New York families ask about wills, trusts, Medicaid planning, special needs planning, and estate administration. Each answer is written to give you a direct, accurate response you can act on, while pointing out where your specific situation may require a closer review. An estate planning attorney in New York can help apply these general answers to your particular assets, family structure, and goals.
Capell Barnett Matalon & Schoenfeld LLP has answered questions like these for New York families for many years, across our offices in New York City and Syosset. Our attorneys built this page from the questions we hear most often during actual client consultations, not from generic search terms.
Wills
Do I Need A Will If I Live In New York?
Yes, having a will ensures your assets are distributed according to your wishes rather than New York’s intestacy laws. Without a will, a court decides who inherits your assets based on a fixed legal formula that may not reflect your actual intentions. A will also allows you to name a guardian for minor children, which the state cannot do on its own.
What Happens If I Die Without A Will In New York?
If you die without a will, New York’s intestacy laws determine who inherits your assets based on your surviving relatives. A surviving spouse and children typically share the estate under a specific formula, and unmarried partners receive nothing under this process. This often produces results a person would not have chosen for themselves.
Can I Write My Own Will In New York?
New York law does allow a self written will in limited circumstances, but it must still meet strict signing and witnessing requirements to be valid. Mistakes in execution are one of the most common reasons a will is challenged or rejected in Surrogate’s Court. Working with an attorney significantly reduces this risk.
How Often Should I Update My Will?
A will should be reviewed after any major life event, including marriage, divorce, the birth of a child, or a significant change in assets. Even without a major event, reviewing a will every few years helps confirm it still reflects your wishes. Waiting too long between reviews is one of the most common estate planning mistakes.
What Is A Codicil?
A codicil is a legal amendment to an existing will, used for small, isolated changes such as updating an executor. For larger changes, such as those following a divorce or the birth of a child, drafting a new will is usually clearer and safer. Multiple codicils stacked on one another can create confusion for an executor.
Trusts
What Is The Difference Between A Revocable And Irrevocable Trust?
A revocable trust can be changed or canceled by the person who created it at any time, while an irrevocable trust generally cannot be changed once it is signed and funded. Revocable trusts offer flexibility and help avoid probate, while irrevocable trusts offer stronger asset protection and tax benefits. The right choice depends on whether control or protection matters more to your goals.
Does A Trust Avoid Probate In New York?
Yes, assets properly transferred into a trust generally pass to beneficiaries outside of Surrogate’s Court, which avoids the probate process entirely. This can save time and keep the details of the distribution private. The trust must actually be funded during your lifetime for this benefit to apply.
What Does It Mean To Fund A Trust?
Funding a trust means formally transferring ownership of assets, such as real estate, bank accounts, or investment accounts, into the name of the trust. A trust that is never funded provides none of the benefits it was created for. This is one of the most common and costly mistakes families make after signing trust documents.
Can A Trustee Be Removed In New York?
Yes, a trustee can be removed under New York law if they fail to fulfill their duties, mismanage trust assets, or act against the interests of the beneficiaries. The process typically requires a petition to Surrogate’s Court along with evidence supporting removal. Beneficiaries who suspect mismanagement should consult an attorney promptly.
What Is A Pour Over Will?
A pour over will works alongside a revocable trust to catch any assets that were not transferred into the trust before death. Without this backup document, those leftover assets could be subject to the intestacy process. Most clients with a revocable trust still need this type of will.
Medicaid And Elder Law
What Is The Difference Between Community Medicaid And Nursing Home Medicaid?
Community Medicaid covers home care and community based services for people who can safely remain outside of a nursing facility, while Nursing Home Medicaid covers the cost of care inside a licensed skilled nursing facility. The two programs use different eligibility rules and different look back periods. Choosing the right program depends on the level of care actually needed.
What Is The Medicaid Look Back Period?
The look back period allows Medicaid to review financial transactions made before an application date, generally five years for Nursing Home Medicaid in New York. If a transfer during that window is treated as a gift rather than a fair exchange, the applicant can face a penalty period without coverage. Community Medicaid look back rules have been changing and should be confirmed with an attorney.
Will My Spouse Lose Everything If I Need Nursing Home Care?
No, New York law includes spousal impoverishment protections that allow a community spouse to retain a portion of the couple’s income and assets. These protections apply specifically to Nursing Home Medicaid and are calculated under current state guidelines. An elder law attorney can calculate exactly what a spouse is entitled to keep.
What Is A Pooled Income Trust?
A pooled income trust allows a Medicaid recipient with excess monthly income to deposit that income into a trust managed by a nonprofit organization, which then pays the person’s bills. This allows the individual to remain eligible for Medicaid despite having income above the standard limit. This tool is commonly used for Community Medicaid applicants.
Do I Need A Lawyer To Apply For Medicaid In New York?
A lawyer is not legally required, but the application process involves detailed financial documentation and strict rules that are easy to get wrong. Even small mistakes can lead to delays or denials that affect a family during an already difficult time. Many families work with an elder law attorney to avoid these errors.
Special Needs Planning
What Is A Supplemental Needs Trust?
A supplemental needs trust holds assets for a disabled beneficiary without those assets counting against SSI or Medicaid resource limits. A trustee pays for goods and services directly rather than giving funds to the beneficiary. This structure allows the individual to maintain benefits while still receiving additional support.
What Is The Difference Between A Special Needs Trust And An ABLE Account?
A special needs trust has no contribution limit and is managed by a trustee, while an ABLE account has an annual contribution cap and is generally controlled by the account owner. A trust works better for large inheritances or settlements, and an ABLE account works well for everyday expenses. Many families use both tools together.
Can I Leave Money Directly To My Disabled Child In My Will?
Leaving money directly to a disabled child can cause them to lose SSI or Medicaid eligibility if the inheritance exceeds the allowable resource limit. Most families instead direct that inheritance into a third party supplemental needs trust created within the will. This keeps funds available for the child without affecting benefits.
What Happens To A Special Needs Trust After The Beneficiary Passes Away?
A first party supplemental needs trust, funded with the beneficiary’s own assets, must reimburse Medicaid before any remaining funds pass to other heirs. A third party supplemental needs trust, funded by a parent or other relative, has no Medicaid payback requirement. This distinction should be confirmed when the trust is drafted.
Is An ABLE Account The Same As A Special Needs Trust?
No, an ABLE account and a supplemental needs trust are different legal tools, though they can work together as part of one plan. ABLE accounts have lower contribution limits and function more like a savings account. Supplemental needs trusts can hold larger amounts and are managed by a trustee.
Guardianship
What Is The Difference Between Article 81 And Article 17-A Guardianship?
Article 81 guardianship applies to incapacitated adults, such as those with Alzheimer’s disease or dementia, and allows the court to tailor the guardian’s authority to the person’s specific needs. Article 17-A guardianship applies to developmentally disabled adults and generally grants broader authority over personal and financial decisions. Choosing the correct type depends on the nature of the individual’s condition.
When Is Guardianship Necessary?
Guardianship becomes necessary when an individual can no longer manage their personal or financial affairs and has not previously signed a power of attorney or health care proxy. This often applies to a minor, a developmentally disabled adult, or someone with advancing dementia. A court appointed guardian then takes on legal responsibility for the person’s care or assets.
Can Guardianship Be Contested?
Yes, guardianship proceedings can be contested by family members who disagree about who should serve as guardian or whether guardianship is necessary at all. These cases often require the court to weigh medical evidence and family testimony. An attorney experienced in contested guardianship matters can help present the case effectively.
What Are A Guardian’s Ongoing Responsibilities?
A guardian must manage the ward’s personal or financial affairs according to the authority granted by the court and typically must file accountings with the court on a regular basis. These responsibilities continue for as long as the guardianship remains in place. Failing to meet these obligations can result in removal or legal consequences for the guardian.
Is Guardianship The Only Option For An Aging Parent?
No, guardianship is often avoidable if a power of attorney and health care proxy are put in place before a parent loses capacity. These documents allow a trusted person to act on the parent’s behalf without court involvement. Guardianship becomes necessary mainly when no such planning was done in advance.
Estate Administration
What Is The Difference Between An Executor And An Administrator?
An executor is named in a will and appointed by the court to carry out its terms, while an administrator is appointed by the court when no will exists. Both roles carry similar responsibilities, including gathering assets, paying debts, and distributing property to heirs. The title depends solely on whether a valid will was in place.
How Long Does Probate Take In New York?
Probate timelines vary depending on the complexity of the estate and whether any disputes arise among beneficiaries. A straightforward estate with no disputes can move through Surrogate’s Court in several months, while contested matters can take significantly longer. An attorney can provide a more specific estimate based on the estate’s circumstances.
Can A Will Be Contested In New York?
Yes, a will can be contested on grounds such as lack of capacity, undue influence, improper execution, or fraud. The person contesting the will must have legal standing, typically as an heir or a beneficiary under a prior will. These cases require substantial evidence and are handled in Surrogate’s Court.
What Debts Must Be Paid Before Heirs Receive Their Inheritance?
An estate’s outstanding debts, taxes, and administration expenses must generally be paid before any assets are distributed to beneficiaries. This includes funeral expenses, medical bills, and any outstanding loans. An executor who distributes assets before settling these obligations can face personal liability.
Do All Assets Have To Go Through Probate?
No, certain assets pass outside of probate regardless of what a will says, including jointly owned property, retirement accounts and life insurance policies with named beneficiaries, and assets held in a properly funded trust. Only assets held in the deceased person’s individual name typically go through the probate process. Reviewing how assets are titled is an important part of any estate plan.
How Our New York Estate Planning Attorneys Can Help
Our attorneys handle every stage of estate and elder law planning, from drafting a first will to representing a family through a contested guardianship proceeding. We work with clients across New York City, Long Island, and beyond to build plans that reflect real family circumstances rather than generic templates.
If your question was not answered here, or if you want to know how these general answers apply to your specific situation, speaking with an estate planning attorney in New York is the best next step. Our attorneys are also available to assist with related matters, including trust administration, Medicaid applications, and special needs planning for a family member.
