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New York Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning and Real Estate Law for New York on
Q: Will a will and trust ensure I'm entitled to the house if my husband passes?

I live on Staten Island, NY, and my husband purchased our house before we married. His father's name is also on the deed because he helped with the down payment. We plan to create a will and trust to leave the house to the surviving spouse or our son if we both pass. My name is not on the... View More

Gregory M. Lendino
Gregory M. Lendino
answered on Mar 9, 2025

Based on your description, a Will and a Trust are insufficient to ensure that the house goes to you (or your son) in the event that your husband dies.

Why? Because you described the house as being half owned by your Father in Law, and half owned by your husband. Your husband's will...
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1 Answer | Asked in Estate Planning and Probate for New York on
Q: Validity of a will regarding power of appointment in NY

I have a question regarding the validity of a will in New York. There is a clause stating that "any power of appointment hereunder must be exercised by the creator's will, living trust, or other written instrument which, within ninety (90) days of the creator's death, must be either... View More

Gregory M. Lendino
Gregory M. Lendino
answered on Mar 9, 2025

Your question involves a power of appointment clause, which can impact the validity and distribution of assets under a will. In New York probate law, this type of provision can be strictly interpreted, so if the power of appointment was not exercised or submitted for probate within 90 days, the... View More

1 Answer | Asked in Estate Planning and Real Estate Law for New York on
Q: Is a will and trust enough to ensure I inherit our house in NY?

I live on Staten Island, NY, and my husband purchased our house before we married. His father's name is also on the deed because he helped with the down payment. My husband and I plan to create a will and trust, intending to leave the house to the surviving spouse or to our son if we both... View More

Benjamin Z. Katz
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answered on Mar 6, 2025

If your father-in-law is on the deed, he has an ownership interest. If your husband and father are the only two owners and are listed on the deed as joint tenants, when one dies, the other gets 100% ownership. If they are not listed as joint tenants, each owns 50%. In that case, your husband may... View More

1 Answer | Asked in Estate Planning, Probate and Civil Litigation for New York on
Q: How can I ensure I get my 1/3 share of my father's trust in New York and the personal items he wanted distributed?

My father died by suicide a year ago, and the trust managing his home sold it, intending to divide the proceeds equally between me and my two siblings. Initially, I was told that my father left a note indicating his wish for me to have his truck—the place of his passing—and divide personal... View More

Gregory M. Lendino
Gregory M. Lendino
answered on Mar 3, 2025

I’m very sorry for your loss. It’s understandable that you want to ensure your father’s wishes are honored, and it sounds like there are serious issues with how your siblings are handling the trust and estate distribution. Since you already signed off on them being co-administrators, you... View More

1 Answer | Asked in Estate Planning, Real Estate Law, Construction Law and Land Use & Zoning for New York on
Q: I just got a provision of law 28-105.1 complaint requesting for corrective action. Can I ignore it if I’m the owner?

I just got a provision of law 28-105.1 complaint requesting for corrective action. Due to alter my house without a permit. Can I ignore this request? Like I’m living it the house and I own the house would there be any future issues? The change was enclosing my front porch with walls for another... View More

Steven Warren Smollens
Steven Warren Smollens
answered on Feb 26, 2025

Eventually, DOB will issue another violation for failure to comply and enter a default money judgment because you ignored the summons and did not restore the porch to its original condition, obtain a permit, or amend the certificate of occupancy.... View More

1 Answer | Asked in Health Care Law, Estate Planning, Public Benefits and Real Estate Law for New York on
Q: Medicaid lien concern on grandmother's house with me as beneficiary in NY

I am concerned about Medicaid and asset protection regarding my grandmother's house. My grandmother is sickly and requires more care than I can provide. Her daughter wants to apply for Medicaid and get her on the assisted living waiting list. My grandmother's only major asset is her... View More

Gregory M. Lendino
Gregory M. Lendino
answered on Feb 19, 2025

I completely understand your concern—Medicaid rules can be tricky, and it’s important to plan ahead so you don’t run into issues later. Since your grandmother owns the house and may go on Medicaid for assisted living, there is a real possibility that Medicaid could place a lien on the home to... View More

2 Answers | Asked in Estate Planning and Tax Law for New York on
Q: My father’s house was in a Medicaid Asset protection Trust. I have confirmed it gets a step Up in basis.

Will we also benefit from the single $250,000 capital gains exemption. His trust was a grantor , Medicaid asset protection trust and considered part of his estate at death. He lived in the house for 45 years and died in it as well. He maintained some control of the trust with limited power of... View More

Nina Whitehurst
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answered on Feb 12, 2025

It is common for the grantor of a Medicaid Asset Protection Trust (MAPT) to retain just enough controls to trigger estate inclusion at the death of the grantor and, therefore, to cause the assets in the MAPT to obtain a step up in basis at the death of the grantor.

If a residence is owned...
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2 Answers | Asked in Estate Planning and Tax Law for New York on
Q: My father’s house was in a Medicaid Asset protection Trust. I have confirmed it gets a step Up in basis.

Will we also benefit from the single $250,000 capital gains exemption. His trust was a grantor , Medicaid asset protection trust and considered part of his estate at death. He lived in the house for 45 years and died in it as well. He maintained some control of the trust with limited power of... View More

Gregory M. Lendino
Gregory M. Lendino
answered on Feb 19, 2025

The good news is that since the house was held in a Medicaid Asset Protection Trust (MAPT) that was a grantor trust for income tax purposes and included in your father’s estate for estate tax purposes, it should qualify for a step-up in basis upon his death. This means that the basis of the house... View More

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2 Answers | Asked in Estate Planning, Real Estate Law and Tax Law for New York on
Q: How to fill New York State form IT2663 for title transfer into revocable living trust for foreigner.

I am a non-US citizen. I own a condo in NYC which is not my primary residence. I want to transfer this condo into my revocable living trust (domestic). My attorney filled out form TP584 as a conveyance without consideration. Therefore, no transfer tax is due. At the end of this form, it states that... View More

Marco Caviglia
Marco Caviglia
answered on Feb 7, 2025

A revocable trust's assets are still your tax responsiblity, e.g. property taxes, because it is revocable. The form you are filing suggests you are getting income from the property and that is taxable. If you have no confidence in your atorney, you should obtain another one. Do so or take... View More

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1 Answer | Asked in Estate Planning for New York on
Q: A deed was not recorded transferring ownership to a trust until 6 weeks after death is it valid in NY

The paperwork had been signed several weeks prior. There was a delay at the town . Official transfer to the trust was 6 weeks after his death. Is it a valid asset to the trust? Or rather could it be part of his estate at the time of death. Currently it’s listed as an asset of the trust on... View More

Damien Matthew Bosco
Damien Matthew Bosco
answered on Jan 27, 2025

Although the recording of the deed provides a public record of the transfer of the property to the trustee of the trust, it does not necessarily have to happen immediately or even before the grantor dies. It has more to do with the delivery of the deed to the trustee. Although it could be a factual... View More

3 Answers | Asked in Estate Planning, Family Law, Foreclosure and Real Estate Law for New York on
Q: My situation is complicated, but here is some information. My mom passed away, my family & i lived in the house with her

For 15 years took care of her till she passed. My sister's wanted to sell the house. We applied for & were approved for a mortgage. They wanted more than we were approved for & didn't accept it. We stayed in the house, looking for a new place is very challenging. They placed an... View More

Benjamin Z. Katz
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answered on Jan 23, 2025

If your name is not on the deed, you are not the owner. I do not know who you are referring to when you say "They".. There are also several facts that you have not provided. Who wanted more, who evicted you, and why are your belongings still there? Was the house sold at auction... View More

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3 Answers | Asked in Estate Planning, Family Law, Foreclosure and Real Estate Law for New York on
Q: My situation is complicated, but here is some information. My mom passed away, my family & i lived in the house with her

For 15 years took care of her till she passed. My sister's wanted to sell the house. We applied for & were approved for a mortgage. They wanted more than we were approved for & didn't accept it. We stayed in the house, looking for a new place is very challenging. They placed an... View More

Damien Matthew Bosco
Damien Matthew Bosco
answered on Jan 23, 2025

When someone dies and has a Will, the Executor manages the estate, including the real property, until the Executor distributes the property to the named beneficiaries. The Executor's duties include ensuring that the property is secure. Effectively, the Executor is the landlord of the premises... View More

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3 Answers | Asked in Estate Planning, Family Law, Foreclosure and Real Estate Law for New York on
Q: My situation is complicated, but here is some information. My mom passed away, my family & i lived in the house with her

For 15 years took care of her till she passed. My sister's wanted to sell the house. We applied for & were approved for a mortgage. They wanted more than we were approved for & didn't accept it. We stayed in the house, looking for a new place is very challenging. They placed an... View More

Gregory M. Lendino
Gregory M. Lendino
answered on Feb 19, 2025

I’m very sorry to hear about your situation—it sounds incredibly difficult. Based on what you’ve described, there could be a few legal considerations regarding liability for your belongings.

Ownership & Access Rights

Since you are still a 1/4 owner of the property under...
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2 Answers | Asked in Probate, Estate Planning and Real Estate Law for New York on
Q: Can a family member WAIVE THEIR RIGHTS TO A WILL inorder to put a deed to a home in another family members name
Marco Caviglia
Marco Caviglia
answered on Jan 9, 2025

I interpret the question as may a beneficiary to an inheritance of a house disclaim the benefit? In that instance, it is as if you did not exist in the will [at least as far as the house goes] and any other beneficiary [such as a sibling also given a share of the house] could have his share... View More

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1 Answer | Asked in Estate Planning and Probate for New York on
Q: Grandfather died. My grandmother was the beneficiary of his life insurance policy but predeceased him in 2016.

Grandfather died. My grandmother was the beneficiary of his life insurance policy but predeceased him in 2016. They had 4 children which one died 9 days after him. If there's no contingent beneficiary, how will be payout be? Is the deceased child entitled to any of the money?

Benjamin Z. Katz
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answered on Dec 26, 2024

If a beneficiary of a life insurance policy predeceases the policyholder and there is no contingent beneficiary, the policy will be payable to the estate of the policyholder. If your grandfather had a Will, distribution will be made pursuant to that. The Will will have to be probated if that has... View More

1 Answer | Asked in Estate Planning for New York on
Q: My wife and I want protection from a future challenge of Undue Influence and Lack of Mental Competency.

What type of attorney do we need to help my wife and I establish a defense against a future challenge of Undue Influence and Lack of Mental Competency to our Will, and or to either of us personally? We will also want a new Will and Powers of Attorney drawn up, and to possibly discuss some other... View More

Damien Matthew Bosco
Damien Matthew Bosco
answered on Dec 5, 2024

Hello there! You would want an attorney who handles Estate Planning, or an attorney who does Trusts & Estates. The attorney could draft and supervise the execution of Wills, POAs, and other estate planning documents. During the Will signing ceremony, the attorney can ask the right questions to... View More

1 Answer | Asked in Estate Planning, Securities Law and Elder Law for New York on
Q: What do I do if Fidelity Investments refuses to give my mother her money, and refused my power of Attorney?

Mom had a stroke a year ago and hasn't gotten better. We are trying to buy a house so that I can take care of her when the time comes... Fidelity has accused me of Elder Abuse and trying to steal her assets etc even tho my mom was the one who told fidelity what her wishes were. They are rude... View More

Damien Matthew Bosco
Damien Matthew Bosco
answered on Nov 25, 2024

I'm sorry you're going through this difficult situation. If you haven't already, ask Fidelity to document their concerns in writing and provide the specific reasons for refusing to honor your POA or give your mother access to her funds. It may be because they believe your mother... View More

1 Answer | Asked in Estate Planning, Family Law and Real Estate Law for New York on
Q: Hello. Question. My husband's mother transferred shares of a cooperative apartment to his name.

Hello. Question. My husband's mother transferred shares of a cooperative apartment to his name. This was done during the marriage, but his mother registered the title to the apartment only in my husband's name. Now my husband has decided to make a will and a trust, but he has indicated... View More

Howard E. Knispel
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Howard E. Knispel
answered on Nov 24, 2024

A gift to your spouse is not marital property even if given during the marriage unless it is comingled or transmuted. However, upon death, there are protections for a current spouse regardless of the will. New York has a "right of election" that allows a spouse to disregard the will and... View More

2 Answers | Asked in Estate Planning and Probate for New York on
Q: Grandfather died. My mother who was his listed as the beneficiary died 9 days after him? He had no will. What happens?

He has 3 other children who are full siblings to my mother. This is in Brooklyn NY, NYC.

Uncle says life insurance payout is on hold because they need my mother's death certificate.

Uncles not forthcoming with information and seem to be trying to get death certificate without me knowing.

Jason  Turchin
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answered on Nov 8, 2024

Sorry to hear about your loss. Generally the first beneficiary would be entitled to the proceeds. Since she died after, it is possible that her estate can make the claim. See if she had a Will. If so, that may dictate what happens to the distribution of the benefits and who would be the personal... View More

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3 Answers | Asked in Estate Planning and Probate for New York on
Q: Grandfather died on October 6. My mother who is one of 4 Children of his died October 15.

Far as I know he had no will. Life insurance policy had no beneficiary and bank accounts totaling 90,000 plus are currently frozen. Is my mother legally owed any of the money. Also there's another policy that has not been claimed. What happens if my mother is named a beneficiary?

We... View More

Benjamin Z. Katz
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answered on Oct 27, 2024

When there is no beneficiary named, the account will be paid to the decedent’s estate. If there is no Will, someone must apply to the Surrogate’s Court for Letters of Administration. The priority of who may apply is 1) Spouse, 2) Children, 3) Parents, 4) Siblings. The grating of Letters of... View More

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