No Will – There IS a Way!




Clients or family members often express concern, after the passing of a loved one, that they cannot locate Mom’s or Dad’s Will or that there is no Will. Often, a bank or other institution requires court documents to process the assets or claims of the decedent. We refer to a person who dies without a Will as having died “intestate”.

Intestacy – The Law of Descent and Distribution

Under these circumstances the New York Law of Intestacy (or Descent and Distribution) provides for a process known as Administration and the appointment of an Administrator to manage the estate and affairs of the decedent and to distribute the property as provided in the Law of Descent and Distribution – Intestacy.

The Administrator is the fiduciary of the decedent’s estate, just as an Executor is, in the case where a decedent left a Will.

As in a probate proceeding, the statute requires that all persons who would be entitled to take the property of the decedent pursuant to the law of intestacy (the “distributees”) be served with a citation and notice of the Administration Proceeding. In this way, all parties have the opportunity to express an opinion as to who will be appointed the Administrator or to object to the appointment of a particular person who may be petitioning for Letters of Administration.

The Petition is filed by an interested party asking for Letters of Administration to be issued to a designated person. Usually the Petitioner is asking for letters to be issued to them. Just as in the probate process, it is important to locate all distributees so that the court has complete jurisdiction and can issue a decree that will bind all parties. If distributees are missing, unknown or under a disability (including age or mental disease or defect) the court will require diligent efforts to find the missing distributes and will appoint a Guardian ad litem to protect the interests of the person who is missing or under a disability.

Assuming, however, that all distributees are known and none are under a disability, and that there is no objection from any distributee, the court will appoint an Administrator of the estate who will be charged with marshaling the decedent’s assets, paying administration expenses, funeral expenses, taxes and debts and to distribute the remaining assets among the distributees as provided in the statute. Among the duties of the Administrator, would be to file federal or New York State income tax returns for the decedent and, if necessary, the estate.

If the estate is of a size to be subject to federal or New York State estate taxes, the administrator is required to file the appropriate returns. Final distribution may be delayed until the taxing authorities have approved the estate tax filings.

The Black Sheep

The statute directs the distribution of the net assets of the estate to the spouse and children, in prescribed portions, or to the children or more remote descendents if there are no spouse or children. This distribution scheme can be a cause for concern and even conflict among family members.

The spouse may have been the intended recipient of all of the assets but the spouse may have to share the estate with minor children. Or, a decedent may not have wanted to distribute assets to a particular family member or group of family members.

For example, if the decedent were estranged from his son and had no contact with or disharmonious relations with the son and his family, the decedent could have explicitly excluded them from any portion of the estate in a properly drafted will. However, in intestacy, the disfavored son will be included as an equal  beneficiary with his presumably favored siblings.

Similarly a decedent may have wanted to preclude the appointment of a particular person or group of persons as executor of his or her estate. In intestacy distributees equally positioned generally have an equal right to be named Administrator of the decedent’s estate; each of the decedent’s children, for example, would have an equal claim to be Administrator, assuming the decedent’s spouse had predeceased.

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Managed Long Term Care – Dual Eligible Medicaid Home Care



Homecare managed by the private sector

Recent changes to the Medicaid Home Care program (driven by a hoped for cost saving) requires all “dual eligible” applicants (receiving Medicare and Medicaid) and others upon approval for home care services to select and enroll in a Managed Long Term Care Plan (“MLTC”) run by a number of approved providers.  The Medicaid program pays the provider a fixed fee per enrolee (“capitation”) and the MLTC determines the level and kind of services the enrolee requires.

Those who where were receiving Medicaid home care before MLTC became mandatory will continue to receive the same kind and level of services without change for at least 60 days.  New enrolees, however may find that the kind and level of services are limited because of the strong incentive of the plan to minimize expenses and maximize profit.

More importantly for all, however, the first level of appeal from the services decision is to the plan itself (the wolf guarding the hen house?); after the internal appeals are exhausted an appeal (a “fair hearing”) to the state Department of Health is possible.  In any event, the MLTC approach bodes ill for seniors and their families; look out for extended struggles to obtain the services needed.

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