Stephen Jay Silverberg’s Answers

Stephen Jay Silverberg

Roslyn Elder Law Attorney.

Contributor Level 8
  1. Does gifting under the tax tree gift law exempt those assets from the medicaid nursing home look back period .

    Answered over 1 year ago.

    1. Stephen Jay Silverberg
    2. Roman Aminov
    3. Frank Louis Buquicchio
    4. Sonya F. Mittelman
    5. Evan W Turk
    6. ···
    6 lawyer answers

    While the prior answers are technically correct, I am not so optimistic. The concept of the gifts under $13,000 is purely a tax concept. Generally, for Medicaid purposes, such a transfer is termed an uncompensated transfer (money given with nothing of value in return). That is the basis for the Medicaid penalty period. You don't say how many grandchildren but, if there are 3 and they have each received $8,000 per year for 5 years, that can be considered a disqualifying transfer of $24,...

    10 lawyers agreed with this answer

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  2. How to best choose an Elder Law attorney for Medicaid Planning?

    Answered 2 months ago.

    1. Brian A. Raphan
    2. Stephen Jay Silverberg
    3. Kelly Scott Davis
    4. Ivette M Santaella
    5. Patricia Ambrose Mayer
    6. ···
    7 lawyer answers

    Your sister is 100% correct. In NY, anyone can call themselves an Elder Law attorney. You have to research the attorneys credentials. At the National Academy of Elder Law Attorneys (NAELA) NAELA.ORG website (and mine) you will find 10 questions you should ask before retaining an Elder Law attorney. Additionally, the National Elder Law Foundation administers a certification test sanctioned by the ABA. Those who pass are Certified Elder Law Attorneys (CELA). There are only about 500 in the...

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  3. How does the $750,000 home equity exemption for Medicaid in NYS for home health care work? What happens if home is worth more?

    Answered over 2 years ago.

    1. Stephen Jay Silverberg
    2. Sharon Melissa Siegel
    3. David L. Carrier
    3 lawyer answers

    The $750,000 equity cap is absolute. If you have more than $750,000 you are not eligible for Medicaid benefits. You can reduce the equity by taking a line of credit or a reverse mortgage. That would reduce the equity and eliminate the bar. Of course, you would still have to deal with your resources but at least the house is no longer an obstacle. Stephen J. Silverberg

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  4. 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?

    Answered about 2 months ago.

    1. Stephen Jay Silverberg
    2. Cheryl Sellers Johnson
    3. Sharon Melissa Siegel
    4. Brendan Thomas McVey
    4 lawyer answers

    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...

    6 lawyers agreed with this answer

  5. Just found out my Dad's estate overpaid the IRS 65K in 2000 - how do I get a refund?

    Answered about 1 year ago.

    1. Stephen Jay Silverberg
    2. John P Corrigan
    3. Michael Leo Potter
    4. Joseph Michael Pankowski Jr
    5. Joseph Franklin Pippen Jr.
    5 lawyer answers

    The statute of limitations for refunds is three years from the date the return was filed. You may be out of luck. The statute of limitations works the other way too. If you file a return and make a mistake (not fraudulent), the IRS cannot come after you after 3 years.

    6 lawyers agreed with this answer

  6. I am in the process of selling a home that my husband and I bought 35 years ago. He is in a nursing home and the deed has been

    Answered 3 months ago.

    1. Stephen Jay Silverberg
    2. Daniel Simon Hahn Szalkiewicz
    3. Bryan Lane Berson
    4. Yana Feldman
    4 lawyer answers

    As pointed out, what is your health? If it is good, I recommend getting some long term care insurance. You do not have to insure the entire cost of care. For example, if you get a $150/day policy and you receive $1000/month in Social Security, you already have $5,500/month toward long term care. You should not gift any assets directly to your sons. You should establish a trust where you get all of the income but not principal. That way, if you need care, only the income is considered...

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  7. I visit my elderly mom and she starts to argue with me and threatens to call Elder Abuse hotline or a friend to beat me up....

    Answered about 2 years ago.

    1. Stephen Jay Silverberg
    2. Virginia Giselle Alvarez
    3. Robert E. Millsap III
    4. Joseph Franklin Pippen Jr.
    4 lawyer answers

    I assume you have no siblings. I would consider calling Adult Protective Services. With her attitude, I don't think a guardian proceeding at this time would be productive [Description: Description: Description: Law Office of Stephen J. Silverberg, PC 185 Roslyn Road | Roslyn Heights, NY 11577 T 516-307-1236 F 516-908-9601 www.sjslawpc.com]<http://www.sjslawpc.com/>[Description: Description: Description: http://www.stationerycentral.com/2011simg/SJS-bio24-ssilverberg.gif]<http://www....

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  8. Our mother died but was on medicaid. Can her house be transferred over to her son who is disabled without paying back medicaid?

    Answered over 2 years ago.

    1. Stephen Jay Silverberg
    2. Frank Louis Buquicchio
    3. L Christopher Arvin
    3 lawyer answers

    A transfer to a disabled child is an exempt transfer for Medicaid eligibility purposes and would also prevent recovery. However, unless your Mother left the house to your brother, the can be repercussions. If your mother had no will, each child owns an equal share in the house. If your brother continues to live in the house you may be OK. You may also be able to transfer all interests to your brother who can then establish a trust for himself. Understand these are just thoughts off...

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  9. Waiver of Citation, Renunciation and Consent to Appointment of Administrator?

    Answered over 2 years ago.

    1. Stephen Jay Silverberg
    2. Rudolf J. Karvay
    3. Edward Joseph Smeltzer II
    4. Joseph Allen Bollhofer
    5. Sharon Melissa Siegel
    5 lawyer answers

    based on what you have said, your father died without a will. As a result, his next of kin have a right to apply for letters of administration. In other words, you have as much right to the administrator as your sister. If you sign the document, you're waiving your rights and allowing your sister to act as administrator. However, in most cases the Court will require her to file a surety bond to insure her performance. Additionally, when the state is settled, she will have to prepare a formal...

    5 lawyers agreed with this answer

  10. In NYS, if you were on Medicaid and in a nursing home and passed away, does Medicaid try AGAIN to investigate your finances?

    Answered 2 months ago.

    1. Stephen Jay Silverberg
    2. Robin Nicole Goeman
    3. Michael Leo Potter
    3 lawyer answers

    No. In NY Medicaid can only recover from assets in Mom's name alone. Joint assets, life insurance with a beneficiary and trust accounts are exempt from recovery.

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