Ossining, NY asked in Estate Planning and Probate for New York

Q: Can a Medicaid recipient, whose brother dies, stipulate with a probate proponent to withdraw their objections?

My friend is a nursing home resident who has been receiving Medicaid to help pay for her care. Her brother passed away and his home health aide (HHA) has filed a purported will in a NY Surrogates Court. Its signing was not supervised by an attorney, no self-proving affidavit was completed, one of the two alleged witnesses cannot be produced, while the remaining witness is the HHA's daughter. My nursing home resident friend would like to stipulate with the HHA to withdraw her (my friend's) objections to probate, in return for the HHA to keep a portion of the estate, while the remainder be distributed directly to myself and another person. My friend hopes that this can be accomplished without an interruption of the Medicaid payments to her nursing home. The Surrogate has ordered mediation with a Court-appointed attorney. Could my friend propose a stipulation according to which the HHA first pays me and the other person, and then my friend withdraws her objections?

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1 Lawyer Answer
Benjamin Z. Katz
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  • Estate Planning Lawyer
  • New York, NY
  • Licensed in New York

A: Let me understand what you are asking. Your friend's brother passed away leaving, what may possibly be an invalid or fraudulent Will. It was submitted to the court by his health aide who, I assume, was named the Executor. Your friend objected to the aide's appointment. You want to now know whether your friend can agree to withdraw her objection in exchange for the aide paying you and "another person" before the Will is even probated. Additionally, there may be a Medicaid lien and your friend is seeking to avoid losing Medicaid if it were received directly rather than being assigned to you and the other friend.

I would first need to know if the brother has any other family? If he died leaving no spouse, children, grand-childen, uncles or aunts or cousins, and only his sister, who does not want to serve as a fiduciary or to directly receive a distribution, I expect the court will likely appoint the Public Administrator to figure this out. As for the proposal, I would suspect the court-appointed attorney would frown on a bribe in exchange for withdrawing objections to what may likely be determined to be an invalid Will.

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