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By Linda Toga

The Facts: My father died last year and I was issued letters testamentary by the Surrogate’s Court. When going through my father’s desk, I found a bank statement dated June, 1999, for a savings account I did not know existed. The balance in the account in 1999 was nearly $5,000. Unfortunately, the bank that held the account no longer exists.

The Question: How can I find out if my father removed the money from the account prior to his death?

The Answer: If the statement you found had been dated within the last five (5) years, you could likely find out which bank took over the assets of your father’s bank and contact them to see if the account still exists. However, in New York State, if a bank account is dormant for an extended period of time, after five years, the bank can hand over all of the money in the account to the State Comptroller’s Office.

In other words, after the requisite waiting period, the account will escheat to the state. While bank accounts escheat to the state after five (5) years, other types of assets and property such as insurance policies escheat after only three (3) years and checks issued by the state escheat after only one (1) year.

If you believe the money in your father’s account was escheated to the state, you can obtain information by calling the New York State Comptroller’s Office, which oversees the New York Office of Unclaimed Funds. You can also go online to www.osc.state.ny.us/ouf/ and search under your father’s name and address for any of his property that may have escheated to the state.

If your father ever lived outside New York, you may also want to search on the sites maintained by the offices of unclaimed funds in other states to be sure you don’t miss anything.

While you are searching for assets belonging to your father that may have escheated to the state, you should also search on your own name and address. You may be pleasantly surprised to find that a rent or utility deposit you forgot you even made or dividends on stocks that you once owned have escheated to the state and are available to you. There is no statute of limitations on unclaimed property, and online searches are free, so you have nothing to lose.

While it is highly unlikely that you will find you are entitled $6.1 million like the largest unclaimed property recipient but, you never know!

If you are lucky enough to find that the balance in your father’s account did, in fact, escheat to the state, you can request that the funds be sent to you. To do so, you must file a claim and provide sufficient information to establish your entitlement to the funds. Since you are the executrix of your father’s estate, you will be asked to provide your letters testamentary as well as documents establishing that your father was, in fact, the person named on the account. Any unclaimed funds that you collect as executrix should be considered as part of your father’s probate estate and distributed in accordance with the provisions in his will.

The process of recouping unclaimed property can be very frustrating because it takes quite some time. It is not unusual to be asked to resubmit paperwork previously provided or to provide documents that were not initially requested. However, being able to get your hands on “found” money is exciting and usually worth the effort.

Linda M. Toga, Esq. provides legal services in the areas of estate administration and planning, real estate and litigation from her East Setauket office.

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By Nancy Burner, Esq.

Consider this scenario: An individual executes a will in 1995. The will leaves all of his personal property (household furnishings and other personal effects), to his friend who is also the named executor. The rest of his estate he leaves to his two sisters. When he died in 2012, his two sisters had predeceased him. There were no other individuals named as beneficiaries of the will.

The executor brought a petition requesting that the court construe the decedent’s will so that she would inherit the entire estate as the only living beneficiary in the will. The executor stated that the decedent intended to change his will to name her as the sole beneficiary, but he died before he signed the new will. There was also an unwitnessed handwritten will that left his entire estate to the executor.

The court held that the testator’s intent to give his residuary estate to his two sisters was unambiguous. Having failed to anticipate, at the time that the will was executed, that his two sisters would predecease him, the court was not allowed to find that the decedent intended a gift of the residuary estate to his friend, the executor.

The court held that there were limitations on its ability to rewrite the decedent’s will to accomplish the outcome sought by the executor. Since the executor was only named as the beneficiary of personal effects, she could not inherit the rest of his estate. This is because the sisters predeceased him and they had no children, the will failed to name a contingent beneficiary.

The result was that the individuals who would have inherited had he died without a will would inherit. In the case at hand he had a distant cousin (to whom he never intended to leave anything) who was entitled to inherit all of his residuary estate. If the decedent had no other known relatives, his residuary estate would have escheated to New York State at the conclusion of the administration of the estate.

What it is important to realize here is how crucial it is to review and update your estate planning documents regularly. This is especially true after experiencing a significant life event such as a birth, death, marriage and/or divorce. You want your documents to reflect your intentions as they are today, not as they were 20 or 30 years ago.

If you are an unmarried person, with no children, living parents or siblings and your only relatives are aunts, uncles and/or cousins with whom you do not have close relationships, you especially want to make sure you have estate planning documents in place to avoid intestacy and having these relatives inherit by default. With these family circumstances, you also want to consider avoiding probate all together with a revocable or irrevocable trust.

If you have missing relatives, the nominated executor would have the burden of finding your aunts, uncles and/or cousins wherever they may be located to obtain their consent to the probate of your will. This can be expensive in both time and money. If these relatives cannot be found, the court will require a citation to be issued to these unknown relatives and a guardian ad litem will be appointed to investigate the execution of the will on their behalf. This is another layer of added expense and delay to the probate process, and a good reason to avoid it.

Whether you have a will or a trust, you want to be sure to review and update it regularly to make sure that your designated beneficiaries are still living. In a situation such as the scenario above, you also want to pay special attention to your contingent beneficiaries. The contingent beneficiaries take precedence if a primary beneficiary has predeceased. If you are unsure about naming contingent beneficiaries at the time you execute your will or trust, you may want to consider choosing a charity or allowing your executor/trustee to choose a charity for a cause you care about as a contingent beneficiary. This way, no matter what happens, your estate does not escheat to New York State.

The takeaway from the scenario above is how crucial it is to regularly review and update your estate planning documents. You want to be sure that whoever you want to inherit at your death, actually inherits your property.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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By Linda Toga

The Facts: My father married a woman named Jane after my mother’s death. They were married for 10 years before my father died. In his will, my father left everything except the contents of his house to me and my sister.

The Question: Is it true that Jane is entitled to a larger share of my father’s estate than what he left her in his will?

The Answer: Unfortunately for you and your sister, because she is your father’s surviving spouse, Jane is entitled to more than the contents of the house. Under New York law, spouses cannot disinherit each other. Although your father left something to Jane and did not technically disinherit her, the value of the contents of the house likely make up a very small percentage of the value of your father’s estate.

Assuming Jane wants more than what is left to her in the will, and assuming she did not waive her rights in a pre- or postnuptial agreement, Jane may ask the Surrogate’s Court to award her approximately one-third of the net value of your father’s entire estate, regardless of the terms of his will. If someone is legally married at the time of their death, their spouse can exercise what is called a “right of election.” This means that the surviving spouse can elect to receive a share of the decedent’s estate valued at approximately one-third of all of the assets of the deceased spouse. Under the facts you provided, Jane can elect to receive not only one-third of the net value of your father’s testamentary assets passing under his will (assets that were owned outright by your father in his individual capacity) but also one-third of the net value of your father’s nontestamentary assets.

Such assets are sometimes referred to as testamentary substitutes and include, among other things, gifts made by a decedent in contemplation of death, jointly held real property, accounts in a decedent’s name that were held in trust for another person or designated as transfer on death accounts, assets held in trust for the benefit of another, assets payable under retirement plans, pensions, profit sharing and deferred compensation plans and death benefits under a life insurance policy. Since the assets a decedent owned jointly with others and/or held for the benefit of others are considered when calculating the value of a surviving spouse’s elective share, the beneficiaries under the will are not the only people who may be adversely impacted when a surviving spouse successfully exercises his/her right of election.

This is just one of the reasons an election is often the first step in what can be a contentious and protracted litigation. The right of election is personal to the surviving spouse; but, if the surviving spouse is unable to make the election, a guardian or guardian ad litem appointed by the court to represent the interests of the surviving spouse may make the election on the spouse’s behalf. The surviving spouse must exercise the right of election within six months of the issuance of letters testamentary and in no event later than two years after the decedent’s death.

To prevent the distribution of assets that may ultimately be determined to be part of the elective share payable to the surviving spouse, notice of the election must be served upon all people and entities that are in possession of or have control over the decedent’s assets. The executor administering an estate where the right of election has been exercised may be able to disqualify the person who made the election from receiving the elective share. To do so the executor must prove that the person attempting to collect an elective share was not actually married to the decedent at the time of death.

If there is no question that the person seeking an elective is the surviving spouse, the executor may be able to defeat the election by establishing that the spouse had the means but refused to support the decedent prior to death, that the spouse abandoned the decedent prior to death or that the marriage was void as incestuous or bigamous. Although the outcome of all litigation is uncertain, because of the issues raised in litigation involving the right of election, it can be particularly emotional and disturbing. As such, it is best to consult an attorney with experience in estate litigation and specifically with cases involving a claim for an elective share.

Linda M. Toga, Esq. provides legal services in the areas of estate administration and planning, real estate and litigation from her East Setauket office.

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By Nancy Burner, Esq.

While discussing an estate plan with a client, she stopped me and said “What is probate.” Sometimes we forget to explain the simplest concepts. Probate is the process by which a last will and testament is given effect. Under New York State Law, a will is admitted to probate after the executor files a Petition for Probate with the decedent’s will attached and gives proper notice to the individuals that would have inherited from the decedent had the decedent died without a will. The proceeding for the probate of a will takes place in the Surrogate’s Court in the county where the decedent resided at the time of his or her death. The probate proceeding gives the interested parties (distributees) the right and opportunity to object to the probate of the will.

Typically, we advise that a client that creates a will consider if there are any circumstances that will make the probate proceeding an expensive one. For instance, is any distributee being disinherited? If so, that disgruntled distributee may come to Surrogates Court and object to the will. The litigation objecting to a will can be long and drawn out — and expensive as well. Are there missing heirs that must be found before the will can be probated? If so, it could be very expensive and time-consuming to find all the individuals that are required to be given notice and an opportunity to object. Is there real property owned by the decedent in different states? If so, then the will would have to be probated in each state. If any of these circumstances exist, you may want to avoid probate altogether.

We also suggest avoiding probate if you are the surviving spouse and your spouse is or has received Medicaid benefits. Medicaid has a lien against the spouse’s estate for any Medicaid benefits paid for the other spouse within 10 years of the death of the surviving spouse.

Another reason to avoid probate is if you have a disabled beneficiary as the Surrogate’s Court may appoint a guardian ad litem to protect that person’s interest. That could be another delay and cost to the estate.

The next question to consider is how do you avoid probate? One way to avoid probate is to name beneficiaries on all your accounts. But I rarely, if ever, suggest that a client resort to this solution without first considering the consequences. First, it may not be possible to name beneficiaries on all your accounts. What if your beneficiaries are minor’s or disabled? If that is the case, the minor or disabled beneficiary would have to have a guardian appointed to collect the bequest. This is also timely.

For minor’s, the guardian would have to put the money in a bank account, earn little or no interest and turn the money over to the beneficiary when he or she turned 18. If the account was a retirement account, the result is even harsher. The IRA or other retirement account would have to be liquidated, all income taxes paid and then put into a custodial account at a bank, earn little interest and then be paid to the beneficiary at age 18.

Most clients, when given the choice, would rather protect their heirs from divorcing spouses, Medicaid liens, creditors and taxes than avoid probate. We can protect beneficiaries by having their assets paid to trusts. This can be done in a will (and probate) or by avoiding probate altogether by using a revocable trust.

The important point here is that it is a mistake to make the avoidance of probate the overriding consideration when embarking upon an estate plan. Not everyone needs a revocable trust, but some people will be well served by using a trust, if the circumstances make probate impractical.

One size does not fit all. A successful estate plan takes all factors into consideration. In a world where people are computer savvy and everything is available on the internet, it is easy to believe that you can just do it yourself. The fact is attorneys are called counselors at law for a reason. The documents are only part of the problem and solution. The fact is, there is no substitute for competent legal advice.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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By Linda Toga

The Facts: I have always believed that trusts were for people with money and that I would not need to create a trust in my will, since my net worth is modest.

The Question: Are there circumstances when someone with modest means should consider a trust?

The Answer: Absolutely! It is unfortunate that there are so many people like you who believe that trusts are only for the wealthy. As a result, steps that could be taken to ensure that assets pass only to beneficiaries who are mature, responsible and competent or pass in a manner that protects the interests of beneficiaries who may not meet that standard are oftentimes overlooked.

For example, if a beneficiary under a will suffers from alcohol abuse or is addicted to gambling and the will directs the executor to make an outright distribution to that individual, there is a chance that the bequest will be squandered or used in a manner that is detrimental to the beneficiary.

However, if the will includes language creating a testamentary trust and dictates that the bequest go into that trust for the benefit of the beneficiary, the trustee can ensure that the trust funds are used in a manner that truly benefits the beneficiary. The trustee can use trust funds to cover the cost of the beneficiary’s housing, food, school or medical treatment and can be given discretion to make outright distributions to the beneficiary if the trustee feels doing so is in the beneficiary’s best interest.

Clearly, by having funds go into a trust rather than being distributed outright to a beneficiary who may have issues, the assets in the trust are protected and are more likely to be used in a responsible manner.

In addition to creating a testamentary trust for a beneficiary who suffers from substance abuse or an addition, testamentary trusts are useful when beneficiaries are too young to handle an inheritance, when they have credit problems and/or judgments filed against them, when they are in the midst of a divorce or when they have a habit of making poor choices when it comes to money. Even when a beneficiary is mature and responsible, some people create testamentary trusts for such beneficiaries to ensure that the funds passing to the beneficiary will be available throughout the beneficiary’s lifetime.

By including trusts in a will, a person can dictate exactly how the funds in the trust are distributed, what the trust fund can be used for and when the beneficiary may enjoy the benefits of the trust. Distributions can be made annually, or when the beneficiary attains a certain age, or may be left entirely to the discretion of the trustee.

As long as the distribution of the trust fund is not contingent upon events that are contrary to public policy such as illegal activity, the person creating the trust has a great deal of latitude in dictating the terms of the trust. Since the costs associated with testamentary trusts similar to the ones described above are minimal, these trusts are appropriate even when the share of an estate passing into the trust is modest.

Trusts can take many forms and can be created to address any number of circumstances. To ensure that you understand your options and the benefits of trusts, even when the value of the assets going into the trust is modest, you should consult an estate planning attorney with expertise in this area.

Linda M. Toga, Esq. provides legal services in the areas of estate administration and planning, real estate and litigation from her East Setauket office.

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Olivia Santoro of the Long Island Progressive Coalition speaks beside Susan Lerner of Common Cause/NY outside state Sen. John Flanagan's office in Smithtown on Tuesday. The group advocated for the passage of legislation that would close a loophole allowing limited liability companies to funnel large sums of money to political campaigns. Photo by Phil Corso

Time is running out for the state Legislature to change the way it allows money to influence politics, and Long Island activists took to the Senate majority leader’s Smithtown office on Tuesday to make some noise.

A loophole in the state’s campaign finance laws has become a political talking point for the better part of the past year, allowing limited liability companies to contribute large sums of cash to political campaigns and committees in amounts far greater than the average corporation can. On Tuesday, groups including Common Cause/NY and Moveon.org took to state Sen. John Flanagan’s (R-East Northport) office to draw attention to legislation that was written to change that, with hopes of swaying a vote on the Senate floor before session ends June 16.

Susan Lerner, executive director of Common Cause/NY said her group, which investigates public officials and political contributions, found the state Senate Republican Campaign Committee was one of the largest benefactors of what has been dubbed the LLC loophole, bringing in about $5.6 million in campaign contributions from LLCs over the past 10 years — with 68 percent of which coming from the real estate industry. The Senate Housekeeping Committee also netted more than $11 million over the past 10 years in the same fashion.

Lerner argued that as long as elected leaders are receiving such lump sums of money from politically motivated groups, they will never allow for legislation to come to a full vote enacting any kind of change.

“It’s time for the Senate Republicans to stop blocking the necessary reforms,” she said. “The LLC loophole has a warping affect on public policy.”

Flanagan, who the Long Island advocates singled out on Tuesday as one of the benefactors of LLC contributions to the tune of $159,000 over the past 10 years, referred to the legislation as a “red herring that fails to fundamentally address the root cause” of the campaign finance flaws. He said the state needed to be more aggressive in beefing up money laundering laws and targeting straw donors to keep groups from contributing in the shadows.

“If we are going to achieve real campaign finance reform and target corruption, you can’t close one loophole and declare the job done. In fact, one needs to look no further than New York City for evidence of multiple campaign finance transgressions that must be addressed,” Flanagan said. “We need to take additional steps to prevent the funneling of big money through county organizations and directing where that money will be spent, which is already illegal under state law.”

Senate bill S60B has been sitting in the Senate’s Codes Committee since May 9. The bill, which state Sen. Daniel Squadron (D- Brooklyn) introduced, saw success in the Democrat-controlled Assembly in the past before previous versions died in the Senate. In the legislation, Squadron argued that the Legislature must avoid such loopholes that allow “unlimited sums of anonymous dollars to undermine the entire political process.”

Lisa Oldendorp, of Moveon.org’s Long Island chapter, said the political loophole was a threat to democracy in the United States.

“We are sick and tired of the role that money plays in campaigns,” she said. “It’s way beyond time to pass this law. We want the voice of the people to be heard.”

Alejandra Sorta, organizer of the Long Island Civic Engagement Table, which works with working class communities of color to turn the tide of anti-immigrant and anti-worker politics, said the timing was right for such legislation to pass, citing various corruption scandals sprouting up across various local and state governments, which has taken down some major political players.

“In light of persistent corruption charges, indictments and/or convictions stemming from unethical and illegal activity at the hands of some of our most powerful and influential leaders in Albany, communities of color are raising their voices and speaking out against big money in politics,” she said. “We demand concrete electoral reforms that will assure transparency and accountability at every level of government.”

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By Nancy Burner, ESQ.

Many people who own real property, whether it is a family home or a vacation home, have a common estate planning goal: protect the house and transfer it to the next generation.

One way to transfer real property to your beneficiaries during your life is to execute a deed with a life estate. For the owner, this means that you will retain the right to live in the home until your death, but upon your demise, the property will be fully owned by your beneficiaries. Because you retained a lifetime interest in the property, you would still be able to claim any exemptions with respect to the property.

There are several benefits to executing a deed with a life estate. First, it is easy and relatively inexpensive. Because the property is a transfer, it will start the look-back period for Medicaid. For nursing home care, the transfer must be more than five years prior to your application for coverage. There is no look-back period for home care, so the property would be considered “unavailable” in the month after the transfer. Moreover, when you pass away, the beneficiaries will get a “step-up” in basis that will eliminate or lessen capital gains tax due if they did sell the property. 

However, the negative aspects to this kind of transfer typically outweigh its benefits. The first is loss of control. Once you have transferred the deed to your beneficiaries, they own it. If you wanted to sell the property or change who received it, you would have to get the permission of those to whom you initially transferred the property. If one of your beneficiaries dies before you, their estate will own a piece of your house. If their estate pays to their spouse, you could have in-laws owning your property when you would have preferred that share to go to the decedent’s children.

Lastly, if the property is sold during your lifetime, you may incur a capital gains tax. When a person sells their primary residence, they receive a $250,000.00 exemption, which means that a tax would only be imposed if the gain on the property was more than $250,000.00. However, when your ownership interest is a life estate, you do not get the full $250,000.00 and therefore may inadvertently incur a tax. For Medicaid purposes, if the house is sold, your interest in the property will be valued and what was once an exempt asset will convert to cash. If this cash amount plus what you already have exceeds the Medicaid asset limit, currently $14,850.00, you would be ineligible for Medicaid.

Another way to transfer real property at death is to create a last will and testament with specific provisions with respect to that property. For instance: “My Executor shall distribute my real property located at 1 Smith Street, Smithsville, New York, to my children, in equal shares.” This means that upon your death, your executor would probate your will in Surrogate’s Court and once they receive approval from the court, they could effectuate the transfer to your children as desired.

The benefit to this kind of planning is that you retain complete control over the property until your death. The downside is that it provides no asset protection and your beneficiaries would have to wait until the probate process is completed before they received the real property.

Moreover, any disinherited heirs would have the opportunity to object to your will. If you have children and are treating them equally, then this would not be a concern, but for those who are treating children unequally or for those who do not have children and are leaving property to a nonfamily member, a traditional will may not be the best option.

The last way to devise real property is through a trust. While there are many different types of trust, for the purposes of this article we can divide them into two categories: revocable vs. irrevocable trusts. A revocable trust allows the creator to maintain complete control over the property in the trust, whereas an irrevocable trust typically limits your access to the property and forces you to designate someone other than yourself (or your spouse) as the trustee. All trusts avoid the probate process. Similar to a will, the property would continue for your benefit during your life and would not transfer to the beneficiaries until after your death.

In addition to avoidance of probate, irrevocable Medicaid trusts protect the property in case you need Medicaid to cover the cost of long-term care in the future as transfers to irrevocable Medicaid trusts begin the five-year look-back period even though you maintain control over the asset. This control is in the form of the ability to change your trustee and your beneficiaries any time. The house can be sold at any time and a successor property purchased without incurring any negative tax consequences.

The biggest negative to the trust is the cost to set it up. Typically, attorneys charge more to prepare a trust than a simple will or deed transfer.

Nancy Burner, Esq. practices
elder law and estate planning from her East Setauket office.

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By Linda Toga, Esq.

The Facts: My uncle died without a will. He was never married and has no children. He owned a house and a car and likely died with significant debts. No one in the family wants to handle his estate because they are concerned that they will be personally responsible for paying that debt.

The Questions: Are their concerns valid? What happens if no one steps up to be named administrator?

The Answer: When someone dies without a will, the intestacy statute controls what happens to his or her estate. Generally, someone related to the decedent will petition the Surrogate’s Court in the county where the decedent lived to be named administrator of the estate.

In addition to filing a petition about the decedent, his family and his assets, the petitioner must provide the court with an original death certificate, signed waivers from other family members who are in line to inherit from the estate and, in many cases, a family tree. That family tree is needed to establish that all the relatives who are entitled to notice of the administration proceeding are, in fact, given notice.

Once appointed, the administrator is responsible for marshalling and liquidating the decedent’s assets and depositing the funds into an estate. In your uncle’s case, the administrator would close any bank or brokerage accounts your uncle may have had and arrange for the sale of his house and car. All proceeds would be deposited into an estate account.

The administrator then uses the funds in the account to pay the expenses of administering the estate and the legitimate debts of the decedent. Once those are paid, the administrator is responsible for distributing the balance in the estate account to the appropriate family members based upon the intestacy statute.

Since your uncle did not have a spouse or children, the assets remaining in the estate after the payment of expenses and debts would pass to his parents if they are alive. If they predeceased your uncle, the assets would be distributed to his siblings in equal shares. The administrator has no discretion with respect to distributions. She must follow the provisions of the statute.

The administrator is not personally obligated to pay any of the decedent’s creditors and is reimbursed from estate funds for any expenses she may incur in administering the estate. In addition, the administrator is entitled by law to receive commissions based upon the value of the estate. Since commissions are considered an administrative expense, they are paid before the decedent’s creditors and before distributions are made to family members.

If no one steps up to be named administrator, the county public administrator may be appointed to handle the estate. The Surrogate’s Court would appoint the public administrator who would then handle all aspects of estate administration set forth above. If no one in your family is willing to serve as administrator, any of your uncle’s creditors can petition the Surrogate’s Court to name the public administrator to handle your uncle’s estate. That way the creditors can be sure that they will be paid assuming there are adequate assets in the estate. 

Linda M. Toga, Esq. provides legal services in the areas of estate administration and planning, real estate and litigation from her East Setauket office.

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By Nancy Burner, Esq.

The Question:

My mom has been a recipient of Community Medicaid. As her condition is deteriorating, it is apparent that she will require long-term care in a nursing facility. I have heard that her Community Medicaid will pay for the nursing facility. Is that correct?

The Answer:

No, Community Medicaid will not pay for long-term care in a nursing home. Community Medicaid is the program that covers care at home; such has a personal care aide. Chronic Medicaid is the program that covers nursing home care. The requirements and application process for Community Medicaid and Chronic Medicaid are very different. An individual is unable to receive both Community and Chronic Medicaid simultaneously, so it is important to know the differences and make sure you have the correct Medicaid in effect.    

For 2016, an individual applying for Community Medicaid can have no more than $14,850, not including their home, in resources and no more than $845 per month in income. Qualified funds such as IRAs or 401(K)s are exempt, but the applicant is required to take periodic distributions that are counted as income each month.

While these limitations may seem daunting, the good news about Community Medicaid is that there is no look-back period and the individual can opt to use a pooled trust to preserve any excess income above the $845. That means someone looking to get care at home can transfer assets and set up a pooled trust in one month and be eligible for Community Medicaid in the following month.

This is much different than Chronic Medicaid. For 2016, an individual applying for Chronic Medicaid can have no more than $14,850 in resources, including a home, and no more than $50 per month in income. There is no pooled trust option to protect the excess income.

Like Community Medicaid, qualified funds such as IRAs or 401(K)s are exempt, but the applicant is required to take periodic distributions that are counted as income each month.

Chronic Medicaid has a five-year look-back. The look-back refers to the period of time that the Department of Social Services will review your assets and any transfers that you have made. To the extent that the applicant has made transfers or has too many assets in their name to qualify, they will be ineligible for Medicaid.

However, there are some exempt transfers that the applicant can make that will not render them ineligible. If transfers were done in order to qualify the individual for Community Medicaid, those same transfers may pose an issue for a Chronic Medicaid application. 

Due to the differences in Community and Chronic Medicaid requirements and regulations, it is imperative to consult with an expert.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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By Linda M. Toga

The Facts:
I am an only child, widowed and have no children. I have very specific wishes relating to my funeral and burial.

The Question:
Since I have no parents, spouse, children or siblings, who will be in charge of my remains and responsible for arranging my funeral and burial?

How It Works:
Generally, a person’s parents, spouse or children have the authority to make funeral and burial arrangements for that person. However, since these people do not exist in your case, you should consider naming an agent to make these arrangements for you. 

In New York State there is a statute that allows you to do just that. You may appoint anyone you wish, including a friend, relative or clergy person, to make all the necessary funeral and burial arrangements.

Of course, before naming anyone as your agent for this purpose, you should discuss your wishes with that person to be sure he/she is willing to take on the responsibility of making sure your funeral and burial plans are implemented.

In order to legally appoint someone to control your remains and handle your funeral and burial, you must name your agent in a document titled “Appointment of Agent to Control Disposition of Remains.” I generally refer to the documents as a Disposition of Remains Statement or DRS. 

In the DRS, you not only identify the person who will actually be carrying out your wishes with respect to your funeral and burial, but you can also set forth exactly what those arrangements should be.

For example, you can identify the funeral home you want used, whether you want to be buried or cremated, what music should be played at your wake or if you want a religious grave-side service.

You can be as detailed as you wish, going so far as to set forth what food should be served at any post-burial luncheon  that may be arranged and what clothing and jewelry you want to have on when you are buried.

As an alternative to stating your wishes in the DRS and hoping that your agent is able to make the necessary arrangements, you can preplan your entire funeral and burial with the funeral home of your choice in advance.

If you preplan your funeral, you will have the option of prepaying for the arrangements as well.

That way your agent’s responsibilities will be limited to making arrangements for your remains to be brought to the funeral home and notifying the people who would likely be attending the funeral.

Whatever route you decide to take, you should seek the assistance of an elder law attorney to be sure the DRS is properly prepared and executed.

Linda M. Toga provides legal service in the areas of estate planning, estate administration, Medicaid planning, wills and trusts, marital agreements, small business services, real estate and litigation from her East Setauket office.

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