Goshen Estate Planning Attorney.
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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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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This sounds like a typical case where an Article 81 Guardianship may be appropriate. If in fact your grandmother is being taken advantage of, you or some other appropriate person can file a petition with the Orange County Supreme Court to be appointed Guardian over her property and personal affairs. The need for a Guardian must be established by clear and convincing evidence. If you wish to discuss this further, I can be contacted at 845-692-0011, or at rshapiro@mid-hudsonlaw.com
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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...
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...
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...
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.
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...
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).
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.
