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Andrew Marc Lamkin

Andrew Lamkin’s Answers

12 total


  • I believe a family member defrauded an elderly relative. Is this elder abuse?

    A relative, I will call X, moved in with her grandfather and uncle who has had several strokes. Grandpa dies, X petitions to administer the estate. The Uncle gets the house, and as soon as he has title sells the house to X. The house was apprai...

    Andrew’s Answer

    Elder abuse is a serious crime. If she coerced any of her elderly family members to place her in a position of control to sell her the house for far below market value, there may certainly be evidence of elder abuse. A guardianship proceeding may be necessary

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  • I got medicaid in september 2014 but it seems I have made over 16 000 this year after all. What should I do?

    I applied medicaid in august 2014. I work as a freelancer and at that time I was not working and had not made over 10 000. I got approved for it and now when I'm checking my earnings this year it seems I have made over the limit. I was diagnosed w...

    Andrew’s Answer

    you will have to report any new income when your case is re-certified. This happens yearly

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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...

    Andrew’s Answer

    I would suggest transferring the house to mom's name. The reality is that dad is the one on the NH. Get it out of his name.

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  • Does an Ira beneficiary chang of a dying man have to be

    probated in court? If announced by attory and no documentation ever shown is that allow? and finnally. If she has 1/2 ownersship of tang assts and so do I does she have to share it with me? Is it allowed in the first place ? Say mymother and his ...

    Andrew’s Answer

    Not sure exactly what you are asking. If there is a beneficiary of IRA, that IRA does not go through the probate process. If this does not answer your question, you should speak to an attorney directly.

    www.lamkinelderlaw.com

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  • Query about my fathers house when he dies(we both still reside in it but on joint on mortgage)

    my father has left his house in the will that we are to continue to live in the house after he passes away ...he still has about 8,000 to pay i but assets from his bank account / insurance policy should cover shortfall in morgage ... if not will ...

    Andrew’s Answer

    If the assets your father leaves does not cover amount of the mortgage, you will have to pay it off on your own. You may be able to work with the bank and take out your own mortgage. The house will go to probate, unless you plan ahead of time. There are two ways to avoid probate. The first is to add your name to the deed. However, there can be tax implications with this option and I would suggest that you seek the advise of an attorney or accountant before proceeding. The second way to avoid probate is to transfer the house to a Living Trust. However, keep in mind, that avoiding probate does not prevent the bank from seeking the money owed on the house.

    www.lamkinelderlaw.com

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  • My uncle just died suddenly and did not have a will, need to know his son's rights as he was remarried

    My 54yr old Uncle died suddenly. He has no will. He remarried about 6yrs ago. His house was bought and paid for prior to the marriage. He also owned a business with his business partner which was began prior to the marriage.He has 2 checking accou...

    Andrew’s Answer

    Either the wife or the son can petition Surrogates Court to be the administrator of the estate. No matter which of them does this, the other will be notified and brought into the action. The inheritance will pass to both of them - the first $50,000 going to the spouse and the remainder being split equally between them.

    Your cousin should contact an attorney to initiate the proceeding.

    www.lamkinelderlaw,.com

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  • Dads on his way to a nursing home..How do I protect our house from the nursing home vulchers???

    Is there anything I can do to save the house my dad signed over to me 6 yrs ago..The staff at the nursing home are talkin about taking the house as payment for his stay..He gets $2500 a month from SSI and pension, but that doesnt seem to be enough...

    Andrew’s Answer

    In New York, an individual is eligible for Medicaid benefits if they are disabled and have assets under $13,800. When applying for institutional benefits (to pay for a Nursing home), Medicaid will look back 5 years for any transfers that the applicant may have made. Because the house was transferred out of your fathers name 6 years ago - you should. Of course, this depends on his other assets, such as savings, investments, bonds, etc..

    His income should go to the Nursing Home and Medicaid will pay for the remainder of his care - depending on any other assets he may have. My suggestion would be to call an elder law attorney immediately.

    www.lamkinelderlaw.com

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  • Re dad will!

    my dads will was read out recently in his last will he said all his estate to be shared by his 3 sons, his wife of 30 years which is our step-mom got nothing but me and my brothers said we would like to share the estate with her equally she was in...

    Andrew’s Answer

    In New York, you cannot disinherit a spouse. Therefore, absent a prenuptial agreement, your step mother legally entitled to 1/3 (called a Spousal Right of Election) of your father's estate. You should not let her take everything. The executor should hire an attorney and admit the will to probate in the county where your father lived. Your step mother will be notified during this process. This seems very black and white. She is entitled to 1/3. No more. No less.

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  • My dad and his wife were married 25 years and lived in a house she had before the marriage They are both dead and her family liv

    es there. Do I have any rights or claim to the house? Should only her family get the benefits of the house although my dad lived there and contributed to mortgage payments?

    Andrew’s Answer

    This depends on who passed away first, your father or his wife. Assuming that they did not have Will and she passed away first, he would be entitled to a portion of her estate. In the absence of a prenuptial agreement, he would also have been entitled to a portion of estate if she had a will - even if that will left everything to her children. Remember, in New York, you cannot disinherit a spouse.

    However, if your father passed away first, then her estate - upon her death - would pass through her Will - presumably to her children. If this is the case, then you would have not right to any of her estate.

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  • 3 agents

    legal responsibility with each other.

    Andrew’s Answer

    The answer depends on your location. I believe that your are located in New York and will answer the question based on that premise. First, you can appoint 3 agents on a Power of Attorney. Second, even though your mother has the early onset of dementia, she probably has the capacity to execute a legal document. I recently worked on a case were capacity was an issue. The case law states that a Power of Attorney is valid if the individual has capacity at the time of execution. This means that, at the time your mother signs the document, she must understand what she is signing. That she has dementia does necessarily mean that she cannot meet this threshold.

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