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Stephen Jay Silverberg
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Stephen Silverberg’s Answers

49 total


  • LIFE ESTATE DEED receive the house as GIFT guess

    my mother gave me her house by way of a life estate deed, now thats she gone i understand i have to use her cost basis for the house (bought in 1950) as my basis to sell the house because it was a life estate deed.... not left upon death anyways...

    Stephen’s Answer

    You have it backwards. Because your mother retained a life estate, you get a stepped up basis. Your gain or loss is determined by the date of death value. If the house is sold within 6 months of death, that is the value and there is no gain or loss.

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  • How do I know when the will of my deceased great grandmother is ready to view at court?

    I don't know where to go to see my grandma's will, my mom needs help to know information on what to do next so my cousin won't take anything from her.

    Stephen’s Answer

    Surrogates Court may not talk to you. In order to have the will admitted to probate, your mother must be served a citation or asked to sign a waiver of citation. A citation is sort of like a summons. It tells you the will has been submitted to probate and gives you a date to appear to voice any objections to the will - Speak now or forever hold your peace. An attorney can appear on your behalf (recommended) and you do not have to be there - it's preferable you not be there.

    A waiver says you are waiving any objections and must be accompanied by a copy of the will so you can review it before you sign. If you wish, you can show the citation and will to an attorney who can advise you if there are grounds to contest.

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  • My husband and I are placing our home and assets into an irrevocable income only trust so we can be eligible for Medicaid.

    Should we create two different trusts or can we use one trust with both of us as the creators? Is there a benefit or detriment to either option?

    Stephen’s Answer

    A married couple should NEVER transfer their house in anticipation of Medicaid. Your residence is an exempt resource. That means if one of you are in a nursing home and getting Medicaid, the house cannot be touched as long as the other is living there. The state cannot file a lien, force a sale or disqualify the sick spouse from Medicaid.

    Make sure you consult with a qualified Elder Law attorney; not an attorney who says they practice Elder Law. Look up attorneys at NAELA.org. For certified Elder Law attorneys go to NELF.org. Certified Elder Law Attorneys (CELA) have passed a rigorous exam and peer review by the National Elder Law Foundation under the auspices of the American Bar Association.

    If you do, if one or both of you need Medicaid with 5 years of the transfer, you will be ineligible for Medicaid for up to 5 years from the date you apply. In other words, if you transfer the house today and need Medicaid 4 years from know, you could be ineligible for up to an additional 5 years.

    Additionally, when the house is sold by the trust, their could be a large capital gains tax as the trust may not qualify for your combined $500,000 capitals gains tax exclusion.

    Given you are considering Medicaid, I doubt estate and gift tax issues exist. The federal estate and gift tax exclusion per person is over $5.3 million in 2015. NY has no gift tax and the estate tax exclusion is over $3 million.

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  • My wealthy friend from China wants me to help him to invest one million dollars in commercial property in NYC.

    I have a (relatively wealthy) friend from China. His family wants to diversify investments and planning to invest up to one million dollars in US, most likely in NYC Manhattan area. May I ask what legal procedure will he has to go through? He is i...

    Stephen’s Answer

    • Selected as best answer

    Rather then tell you to see a real estate attorney, I suggest a tax attorney (with real estate experience) is a better place to start. The real estate law in the United States is fairly wide open. There may be restriction on borrowing funds, but the main issues are tax oriented. A foreign individual purchasing real property in the US must meet IRS reporting requirements. You must register with the IRS and file annual reports of activities (rent, expenditures, etc.). Upon sale, you file a report with the IRS and pay any capital gains tax due at the time of sale.

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  • Avoid capital gains tax by returning my mother's house to her?

    My mother gave my sister and I her house about ten years ago as a gift, free and clear. We have been using it as an investment property,ever since, as neither one of us live in the area. My mother is not expected to live much longer. Ou...

    Stephen’s Answer

    It is not shady but it is wrong. If you transfer property to someone and they die and leave it to you within a year you get no basis step up. (it may be 18 months )

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  • House was transferred from Mom and Dad to Mom a year ago. Dad went into nursing home 4 months later. Mom now got diagnosed...

    with cancer and it seems to be treatable and she'll be ok. Should we put the house into an irrevocable trust to start the 5 year look back period for Medicaid just in case? Dad's Medicaid application isn't really complete and is still pending. Wou...

    Stephen’s Answer

    I would not transfer anything right now. At this point, any transfer by your mother before your father has been on Medicaid for a month will be treated as if your father made the transfer and his Medicaid will be denied.

    Once Dad is on Medicaid for a month, Mom can complete transfers without affecting Dad's eligibility,

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  • Is a trustee of a trust (who is also an attorney) in New York, required by statute to render an accounting of a trust?

    The trust instrurment of an irevocable trust mentions nothing regarding trust accountings to the benificaries. What is the law in New York about accountings to benificiaries and how often they are required? Further, since the trustee is an attorne...

    Stephen’s Answer

    Every fiduciary in NY is required to file an accounting upon request, as long as one has not been filed for the period in question (attorney trustee or not). In other words, the only defense is I already did it. When the accounting is filed, any beneficiary has a right to object to the accounting. Prior to filing objections, the beneficiary is entitled to all relevant documents and statements used to prepare the accounting and also has the right to depose the trustee. Once this has been done, the beneficiary has 10 days to file objections. Of course, a beneficiary may go through the paper work and deposition and decide not to file objections.

    The trustee/beneficiary relationship in and of itself does not create attorney/client privilege. In any event, even if there is an attorney/client relationship, it does not excuse a trustee from including all information on an accounting regarding all beneficiaries.

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  • I received a letter from the Human Resource administration asking me to come to a Medicaid fraud interview. What should I do?

    Any advice would be appreciated. Thank you.

    Stephen’s Answer

    I do agree with all of the answers. I would never deal with the Fraud Department without counsel.

    However, I recently has an interesting experience with NYC HRA. I have a client who signed a spousal refusal for her husband to receive Medicaid. HRA thought he died and wanted to see if there were assets that could be recovered. The inquiry was handled by the Fraud Department even though asset recovery and not fraud was the issue. As it turns out, husband had not died. The Fraud department then asked for the wife to contribute and the ultimate settlement was about 25% of her assets with an agreement to seek no further contribution during the wife's life or upon her death.

    In other words, HRA has been using their Fraud Department to negotiate recovery actions even though all actions were legal and no fraud had been committed. I hope this is your case. Odds are if you used the services of a competent elder law attorney, attempted recovery is probably the reason here

    On the other hand, Medicaid fraud is a criminal activity and should not be tolerated,

    It seems they are taking this action to scare seniors

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  • Applied for NYS Medicaid for my mom starting in Nov. She passed on Jan 9. Medicaid denied Feb. Am I liable for her debt?

    No will, home, car etc. She was a widow. Only had joint bank account with me. I was POA and signed all paperwork as such. Paid down for Oct. to qualify her. Expected Medicaid to kick in for Nov. She left nursing home for final hospitalization Dec....

    Stephen’s Answer

    Here is the deal. Federal law prohibits nursing home from asking for personal guarantees from family members. Additionally, in NY Medicaid recovery is limited to assets solely in your mother's name.

    All that being said, you may not be off the hook. When your mother was admitted, you signed documents making you a "responsible party." That means you agree to pay out of your mother's funds any amount required by Medicaid (e.g. IRA, pension or social security). However, your contract also probably provides if your mother is denied Medicaid due to a transfer to you, you will repay them to the extent of the assets received. The fair hearing is critical. if you prevail and the decision is reversed, you will probably owe nothing.. You need an experienced Elder Law attorney to represent you and your mother's estate.

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  • If the owner of a 401K plan dies leaving her minor child as the beneficiary, can the parent of the child cash in the 401 K?

    If a NY state resident 401 K owner died with his minor child as the beneficiary what is the process to getting the money from the 401K? How is the parent able to cash it in without it being in her (the parents name). I was under the impression tha...

    Stephen’s Answer

    Unless there are provisions in the beneficiary designation, and/or a trust under the will, a guardian must be appointed in Surrogates Court. If there is a surviving parent, they probably will get priority. The funds will probably be paid to an inherited IRA. The account will be under tight Court supervision until the minor turns 18. Any investment plan must be approved Court as major disbursements. An annual report will have to filed with the Court. The Court may even require the posting of a surety bond.

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