Shivers Law GroupSayville Attorneys | Elder Law, Estate Planning Suffolk, Nassau County2026-10-06T19:05:11Zhttps://www.valerieshiverslaw.com/feed/atom/WordPress/wp-content/uploads/sites/1604242/2023/09/cropped-SLG_FAV-32x32.pngOn Behalf of Shivers Law Group<![CDATA[What if a trustee isn’t doing their job?]]>https://www.valerieshiverslaw.com/?p=475832026-10-06T19:05:11Z2026-10-06T19:05:11ZBeing named as a trustee comes with big responsibilities. A trustee doesn’t just hold onto property or money until it is time to dole it out. They have to manage the trust’s assets, keep the appropriate records, obey the terms of the trust and act in the best interests of the beneficiaries at all times.
But what happens when a trustee stops doing their job? Or maybe they simply can’t handle it all? Sometimes, the problem is obvious. The trustee fails to make disbursements, won’t respond to a beneficiary’s questions or plays favorites. Sometimes, the issues get serious. Money could be missing or property may have been diverted for the trustee’s personal gain. What happens next?
Start by digging through the paperwork
One or two poor decisions and poor communication on occasion don’t automatically mean that a trustee has breached their duties or must be removed. The administration of a trust can take time, particularly when complicated assets must be valued, sold, transferred or reinvested. However, beneficiaries don't have to accept silence or poor behavior indefinitely. If you believe a trustee isn't doing their job:
The first step is usually to review the trust itself. The document should explain the trustee's responsibilities, how and when distributions should be made and whether beneficiaries have particular rights to information or accountings.
If the problem remains, the next step may be to request a formal accounting. An accounting can provide information about the management of a trust’s assets, income, expenses, distributions and other transactions. That could mean providing records, making a required distribution or explaining a questionable transaction.
Negotiation or mediation may provide a way to resolve disagreements, particularly when the problem involves communication, different interpretations of the trust or conflict among family members.
If those efforts don't work, court action may be an option. Under New York Estates, Powers and Trusts Law Section 7-2.6, an interested person can ask the court to remove a trustee who has violated the terms of the trust, is insolvent or is otherwise unsuitable.SCPA Section 711 also provides grounds for removing fiduciaries. Depending on the type of trust and circumstances, grounds can include dishonesty, wasting or improperly applying assets, failing to obey court orders or otherwise being unfit to serve.Removal isn't automatic simply because beneficiaries raise an issue. New York courts generally require sufficient proof and grounds before making changes. There are steps you can take to try to correct the problem and – when that fails – ask a court to step in.
]]>On Behalf of Shivers Law Group<![CDATA[What happens to your estate plan if you move to New York?]]>https://www.valerieshiverslaw.com/?p=475362026-09-23T22:29:38Z2026-09-23T22:29:38ZNew York may recognize your old will, but that isn’t the only consideration
In general, a move to New York does not automatically invalidate your documents. New York can generally recognize a will that was properly created under the law of other states as well as some other documents. However, an estate plan can be legally valid and fail to work as you intended.
To make sure that all aspects of your estate plan will do the job, it’s important to review the following:
Your will: Your move to New York may have been predicated on changes in your family circumstances, occupation, marital status, health or any number of other issues. You should review your will to make sure that it still reflects your current wishes.
Any power of attorney: Even if an out-of-state POA document is valid, your agent may have trouble using it if banks or creditors question it. In addition, you may wish to authorize a different agent if your current one now lives some distance away.
Your health care proxy: Again, it is wisest to select someone who lives close to your current location so that they will more likely be readily available in a crisis.
Your trusts: If you have previously established trusts, make sure that the assets you want held in those trusts have been properly transferred.
Your taxes: Each state approaches estate and inheritance taxes independently. It may be necessary to look at new tax abatement and wealth preservation plans once you move, particularly if you have a large estate.
It’s also important to note that not all state laws treat a surviving spouse’s rights the same way. Your previous state of residence may have handled the issue differently than New York does. That may affect the way that you want your will written or your assets titled.
If you’ve recently moved to New York, don’t let your estate plan be overlooked. Speaking with a seasoned attorney can help you determine what needs to be updated to provide you and your loved ones with more security.]]>On Behalf of Shivers Law Group<![CDATA[Medicaid planning: What is spousal refusal in New York?]]>https://www.valerieshiverslaw.com/?p=475322026-09-16T14:35:52Z2026-09-16T14:35:52ZHow spousal refusal works
When the ill spouse applies for Medicaid, the community spouse files a written statement saying that they refuse to use their income and resources for the spouse’s care with the New York Department of Health. This is authorized under Social Services Law (SSL) § 366(3)(a). Medicaid must then evaluate the applicant spouse’s eligibility using only their own income and assets.
It’s important to note, of course, that the applicant spouse must still meet Medicaid’s income and resource limitations independently to qualify for aid. In addition, the state may still pursue the community spouse (or their estate) for some portion of the care, but they must generally seek the lower Medicaid rate that was paid to the care facility, not the higher private pay amount. However, the community spouse must usually be left with adequate resources to maintain their standard of living and the amount due to the state can often be negotiated downward.
Spousal refusal may be particularly useful when the community spouse needs substantial resources to pay for their own housing, medical care and other living expenses. This strategy must also be coordinated carefully with asset transfers, trusts, beneficiary designations and the Medicaid lookback period.
Moving money without understanding the rules could be disastrous and ultimately delay eligibility or create a penalty period for an ill spouse. Because of that, spouses interested in Medicaid planning could benefit from speaking with a New York elder law attorney who can examine their financial situation, explain the options, discuss the consequences of different paths and help them address their needs.]]>On Behalf of Shivers Law Group<![CDATA[New York estate tax “clawback” provision extended to 2032]]>https://www.valerieshiverslaw.com/?p=475302026-08-22T13:26:07Z2026-08-22T13:26:07Z2026 is $7.35 million.
One way that New York taxpayers have been able to avoid that cliff is by gifting some of their assets while they’re still alive. New York has no state gift tax, so they only need to consider the federal gift tax exclusion limit.
Understanding the “clawback” provision
To prevent people from giving away large amounts of their estate in the years immediately prior to their death, New York law has included what’s called a “clawback” provision. That allows the state to add the value of gifts given within three years prior to a person’s death back on to the estate’s gross value for tax purposes. That can add considerably more to the state estate tax due, especially if it causes an estate to go over that cliff.
The clawback provision was scheduled to expire in December of last year. However, it has been extended until Jan. 1, 2032. That means people are wise to avoid gifting considerable assets to reduce their gross estate value within a short period of time since no one can know for certain when they’ll pass away. Certainly, doing it when faced with a terminal diagnosis can prove pointless if the goal is to reduce the amount of New York estate tax due.
The three-year clawback period does not apply for federal estate tax purposes, however. That means gifting assets, even in the three years before someone’s death, can still reduce the value of a person’s federal gross estate.
There are, however, other ways to avoid or at least minimize New York estate taxes due, such as charitable donations, certain trusts and more. With experienced estate planning guidance, New York residents can maximize the amount of wealth they leave to loved ones and charitable organizations while reducing the amount of money that goes to the government.]]>On Behalf of Shivers Law Group<![CDATA[5 key facts about New York Medicaid asset lookback]]>https://www.valerieshiverslaw.com/?p=475292026-08-20T17:35:07Z2026-08-20T17:35:07ZNursing home care triggers a 5-year financial review
State workers look back at all bank records and property sales from the past 60 months. They inspect savings accounts, real estate transfers and investment portfolios. Giving away money or selling a house for cheap during this timeframe creates serious financial problems.
Home care lookback rules remain delayed by state authorities
State leaders passed a 30-month lookback rule for home care services. However, state health officials continue to delay this rule while waiting on administrative rules and federal approval. You can still apply for home care help under current rules without facing a multi-year audit.
Uncompensated asset gifts may cause penalty periods
Giving away assets without receiving full value in return creates a gap in coverage. Medicaid will not pay for care until this penalty time ends. State workers figure out this wait time by dividing the total gifted amount by the monthly average cost of care in your area.
Financial gifts to relatives
Property sales below fair market value
Unexplained cash withdrawals
Gifts to a spouse, a blind or disabled child, or specific trust funds qualify as legal exceptions that avoid penalty wait times. You must pay for medical costs out of pocket if a non-exempt gift creates a penalty wait time.
Statutory rules protect the family home and spousal assets
Special state guidelines protect a healthy husband or wife when a partner enters long-term care. The law allows you to transfer your home without penalty under clear conditions.
Transfers to a spouse living at home
Transfers to a minor or disabled child
Transfers to a caregiver child or co-owner sibling
These specific state exceptions keep your family home safe for loved ones. Following these legal paths helps keep real estate in the family.
Take proactive steps to protect your estate
Early planning gives your family the most legal choices under state guidelines. Meeting with an elder law attorney helps you spot legal exceptions and secure your property before care needs start.
]]>On Behalf of Shivers Law Group<![CDATA[What makes New York estate tax laws unique?]]>https://www.valerieshiverslaw.com/?p=475282026-08-07T23:44:55Z2026-08-07T23:44:55Zthat amount is $7,350,000. That’s about half the threshold for the federal estate tax.
If you’re preparing to put your estate plan in place, it’s critical to know whether the amount being left to beneficiaries (generally with the exception of your spouse and charitable organizations) is greater than that.
There are a number of ways to legally reduce the value of your estate to prevent the government from taking a share of it. That’s one reason it’s worthwhile to work with an experienced estate planning professional.
Avoiding the tax cliff
It’s still important to know how the New York estate tax works. Our state has some unique estate tax laws.
If the estate value is more than 5% above the threshold, the entire estate is subject to the estate tax. If it’s over the threshold by 5% or less, some tax will be owed, but only on the amount over the threshold. That’s why 5% over the threshold is what’s known as the “tax cliff.” Estates valued at more than that are fully taxable, which can mean a significant amount of money going to the state.
As noted, there are multiple ways to avoid the tax cliff or getting anywhere near it. These include gifting assets while you’re still alive, leaving a greater amount to your spouse and/or charities.
In fact, New York law includes something called the “Santa Clause.” You can stipulate that if your estate may fall off the cliff, the amount over 5% above the threshold will be given to one or more charitable organizations.
Preserving your assets for the people and causes that are important to you and avoiding unnecessary taxes, penalties and legal issues for your loved ones requires careful planning. Seeking trusted legal guidance can help.]]>On Behalf of Shivers Law Group<![CDATA[Why are advance directives important?]]>https://www.valerieshiverslaw.com/?p=475272026-08-04T10:49:39Z2026-08-04T10:49:39Zadvance directive.
What is an advance directive?
Your advance directive is a written set of instructions for your medical care team. You can let them know what medical treatments and interventions you want and which ones you reject. This document can be as detailed or broad as you want.
You can set terms related to artificial nutrition and hydration, pain relief, life-prolonging care, palliative care, intubation and resuscitation. If you don’t want to be resuscitated, you should include a do not resuscitate order in your advance directive. You should also ensure that you understand the limitations of this document. For example, paramedics may still have to revive you if they’re called to care for you.
What should you do once your advance directive is set?
Once you have your advance directive written, you should provide a copy of it to your primary care physician and other members of your care team. You should also provide a copy to your local hospital and bring one with you if you seek care at any medical facility.
In addition to having your advance directive set, you can also provide someone with power of attorney to make medical decisions for you. This individual would make decisions regarding your care if they aren’t already covered in the advance directive. Working with a legal professional who is familiar with these matters can be beneficial, since they can help you to set everything up properly and in a legally-enforceable way.]]>On Behalf of Shivers Law Group<![CDATA[What is a health care proxy in New York?]]>https://www.valerieshiverslaw.com/?p=475262026-07-17T13:31:01Z2026-07-17T13:31:01ZA health care proxy is an estate planning document you can use in New York to select an agent to make medical decisions on your behalf.
Typically, this does not change anything at the moment that you make the health care proxy. Instead, you are just selecting an agent who will take on that power in the future if you become incapacitated.For instance, you could suffer from medical complications after a stroke and be admitted to the hospital. You cannot work with your medical team due to your condition, but they need to make decisions about what type of care to provide. Your agent can then step in, and the medical staff has to treat their decisions as if they are, legally speaking, decisions that you have made.
Are there other potential options?
Yes, you can take other steps to plan for your medical future. Many people will use a type of advance directive known as a living will.The difference with a living will is that you make the decisions yourself in advance. Say that you do not want to be kept on life support. Your living will can state that, regardless of what happens, you should never be put on life support, and the doctors have to follow that instruction.The main difference with the health care proxy is that your agent can make decisions as they are needed, which is much different from you trying to guess about the type of care you would want in advance.Both of these documents can certainly be helpful, and it is important to consider your medical future when creating an estate plan. Be sure you know exactly what legal steps to take under New York law.
]]>On Behalf of Shivers Law Group<![CDATA[Who can serve as an adult’s guardian in New York?]]>https://www.valerieshiverslaw.com/?p=475242026-06-30T23:25:23Z2026-06-30T23:25:23ZGuardians must be competent, trustworthy adults
As a general rule, only legal adults can accept the authority that comes with adult guardianship. Additionally, the guardian must be either a citizen or a lawful resident of the United States.
Guardians must be assertive, organized and trustworthy enough to uphold the fiduciary duty they have to the adults in their care. They must be able to manage matters on behalf of another person and consistently act in that person's best interests.
Criminal records can potentially make people ineligible for guardianship, although the severity of the offense and how recently it occurred can influence what a judge ultimately decides. The judge hearing the case has the final say regarding who they appoint and who is theoretically ineligible to hold that authority.
When there are questions about who should serve as guardian, or if a prior criminal offense could interfere with a guardianship petition, an attorney could help people evaluate the situation as objectively as possible. Securing legal guidance is often necessary for those seeking guardianship when someone cannot handle their own affairs anymore.]]>On Behalf of Shivers Law Group<![CDATA[What is a Totten trust (and why you might use one)?]]>https://www.valerieshiverslaw.com/?p=475232026-06-21T08:35:01Z2026-06-21T08:35:01ZEveryone age 18 and older should have at least a basic estate plan in place. While some people require complex financial vehicles like generational trusts, many people can get by with just a few basic documents.
One example of these is a Totten trust. Read on to learn more and determine whether you need one or not.
The name is a misnomer
Totten trusts are not trusts at all in the usual sense. Rather, they are payable-on-death accounts that can only be accessed by beneficiaries after the account holder has passed away.The name is derived from a 19th-century New York court case, In re Totten, wherein the courts determined that one person can open a bank account for another. These accounts have also been dubbed “poor man’s trusts,” although people of all income levels can benefit from them.
What the accounts do
During the account funder’s lifetime, the funds can be used, transferred, depleted and withdrawn by the one who funded the account. They have full rights to close the accounts and change the beneficiaries at will.But once the account funder dies, these funds get transferred to the beneficiary without having to wait for probate to conclude.
Who can benefit?
Anyone who might not be a traditional beneficiary could benefit from Totten trusts. Think life-long friends, god-children, loyal employees and anyone else with whom the trust grantor shared a special relationship.There are no limits to the number of Totten trusts that can be funded.
Is your estate plan complete?
Give yourself the peace of mind that a solid estate plan can provide. Learning more about your options is a wise choice to make.]]>