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Richard Joseph Shapiro

Richard Shapiro’s Answers

14 total


  • My mother received a lawsuit settlement for my dad who passed away She wants to share it with me . Do I have to pay taxes?

    I manged the suit for her as she has some medical issues. Since I'm an only child she wants to give me half of the settlement from my fathers estate She also gets a benifit from the VA for aid and attendance and want to keep the asset limit below...

    Richard’s Answer

    The current gift tax annual exclusion is $14,000 per recipient. But with a $5.25 million lifetime gift tax exemption, no gift tax would be owed except in the unlikely scenario that the total gift exceeds the $5.25 million amount. A 709 gift tax return would need to be filed for informational purposes.

    I agree that gifting would typically be recommended to retain your mother's eligibility for Aid & Attendance benefits. But gifting should be accomplished in a carefully designed way, both for VA and potential Medicaid purposes, also keeping an eye towards protecting the assets for you against future risks (e.g., creditors or your own health care expenses).

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  • How can I still be a 50% partner on an LLC that my friend & I are forming if my wife is also signing her name on the business?

    My wife & I are receiving a settlement (both our names are on the check) & I am starting a business with my friend. We are forming an LLC & we are both contributing equally as far as money & labor is concerned. My question is, if my wife signs as ...

    Richard’s Answer

    This is too complex an issue to be addressed online. You need a well-drafted LLC Operating Agreement prepared by an experienced business attorney that includes buy/sell provisions and takes into account all necessary issues pertaining to the formation of a closely-held business.

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  • I am single and own a home- what do i do to protect it. do i get some type of will or trust? i don't know

    i am single and own a home- what do i do to protect it. do i get some type of will or trust? i don't know

    Richard’s Answer

    If you are looking to protect the home from general creditors, the first line of defense (as was already suggested) is an umbrella insurance policy. Beyond that, you would need to consider use of either a limited liability company (LLC) or an irrevocable trust. It is uncommon to use an LLC to own a home, since you would then forfeit any property tax exemptions as well as the capital gains tax exemption which would presently exempt up to $250,000 of capital gains were you to sell the home. An irrevocable trust would be a better option, but you would have to establish the trust under the law of a jurisdiction that provides for the establishment of self-settled asset protection trusts. As a further impediment, since the real property cannot be moved to another jurisdiction (as can liquid assets), there is no assurance that a New York Court wouldn't permit a creditor to invade the trust should the creditor obtain a judgment against you; there is apparently no case law yet on this point.

    Bottom line: while there are techniques available to help protect your home against creditors, they all have some downsides, and none of them are bulletproof.

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  • If i transfer ownership of a property to my LLC, can someone be entitled to my LLC and its assets if I get sued personally?

    If the person suing me is entitled to my LLC and its assets what would I have to do to prevent them from doing so? Thank you for your time

    Richard’s Answer

    A lot depends on when the asset is transferred as well as the nature of the LLC, including the jurisdiction of its formation. As a basic rule, a multi-member LLC serves as the best protective entity, since at least 3 bankruptcy court decisions (although none in New York) have permitted a bankruptcy Trustee to seize assets held in a single-member LLC as part of the bankruptcy proceeding.

    Also note that to be as protective as possible, the LLC must be formed and funded prior to any claim or cause of action arising. If you were to fund an LLC with property after a claim has arisen (even if a lawsuit has yet to be filed), it is likely that the transfer would subsequently be voided by a court under the doctrine of fraudulent conveyance.

    All that being said, I recommend that all my clients use LLC's to hold title to commercial real estate as well as operating business. A properly structured and maintained LLC should protect your personal assets from claims against the LLC. In addition, your membership interest in the LLC would generally be protected from attachment by a judgment-creditor; at best, a judgment-creditor having a claim against the LLC would be entitled to seize only the property owned by the LLC. Conversely, a creditor having a claim against an individual member of the LLC would have no right to seize either the LLC-owned property, or the individual's LLC interest.

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  • Can a trust percentage distribution be changed after the death of the maker by an agreement of all adult beneficiaries?

    A trust was made during the life of the maker. She has died, The trust provides for the immediate distribution of assets to four adult beneficiaries who are all alive. Can the four beneficiaries by unanimous written agreement change the percenta...

    Richard’s Answer

    Unless the trust were to specifically provide for such a modification -- or the Trust includes a Trust Protector who would have such a power -- you would likely need to petition the Surrogate's Court to reform the trust.

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  • What are my options regarding a nursing home bill I don't want to pay?

    I feel that the care my relative received at a nursing home was careless and hastened his passing. As far as I am concerned, they did not live up to the responsibilities entrusted to them. It feels wrong to pay the invoices they are sending. Me...

    Richard’s Answer

    If you do not pay, it is likely you, or the decedent's estate, or both, will be sued by the nursing home. It appears that you would be asserting some form of breach of contract issue -- i.e., the nursing home did not deliver the "promised" standard of care.

    While it would not be impossible to win such a case, it may be impractical to defend such an action, especially if the amount in question is not too high; legal fees would add up quickly.

    Of course, you can file a complaint with the NY Dept. of Health -- perhaps your threat to do so would get the nursing home to back off (but not likely).

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  • Can my neighbor request money or put lein on house?

    a neighbor of ours wanted to join our small business. He gave me $20,000 to start business. I was to pay him $2000. every other month for a year which I did but business did not work out and I had no money to him back. I never asked him to join my...

    Richard’s Answer

    Assuming the money was a loan (as your question indicates), the neighbor could try to obtain a judgment against you for a default. Without a written promissory note, the who matter becomes rather murky -- e.g., what was the agreed upon repayment terms, including an amount of interest. Only if he were to obtain a judgment would he then have a lien against your home (assuming the judgment was docketed with the County Clerk).

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  • What happens if i have small social security and medicaid and i inherit sizeable money?

    I have no income but social security and am on medicaid and food stamps. I may inherit some money. Do I keep the money and come off assistance or pay back the money and stay on assistance?

    Richard’s Answer

    Inheritances can have great impact on public benefits. As Ellen Victor said, your age will greatly determine how you would need to address this. It is critical that you consult with an Elder Law / Special Needs attorney to discuss your options.

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  • Where do I file LLC papers if I will be moving to another state?

    I currently live in NY and will most likely be moving to PA and wanted to know where I should file the LLC papers...in NY or in PA?

    Richard’s Answer

    While it is generally true that you would establish the LLC in the jurisdiction of its principal place of business, there are exceptions. If asset protection is a top priority, then sometimes we will recommend looking at a jurisdiction (e.g., Wyoming, Nevada, Delaware) that have the highest levels of statutory protection against creditor claims. While choosing another jurisdiction would require an additional filing in the state of operation, sometimes the trade-off is worth it to the client.

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  • Can my mother add me as joint tenant to the deed for her condo to avoid probate in NY?

    Can my mother add me as joint tenant to the deed for her condo to avoid probate in NY? Is there a time limit for this?

    Richard’s Answer

    Yes, but it's usually a poor planning choice. Adding you as a joint tenant would likely result in the forfeiture of a significant capital gains tax exemption, may create problems for Medicaid eligibility if your mother requires long term care in the future, and would be subject to the claims of any of your current or potential creditors.

    In almost every case, the better choice would be for your mother to create a revocable or irrevocable trust (or both) to address her estate planning needs, including probate avoidance. As an alternative to a trust, a deed with a retained life estate can be considered.

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