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John Elder
John Elder, Estate & Elder Law
Category: Estate Law
Satisfied Customers: 4631
Experience:  Over 14 years experience in Medicaid, Estates, Trust.
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mom passed away in nassau county, ny without a will. her assets

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mom passed away in nassau county, ny without a will. her assets are mainly a coop which still has an $80,000 mortgage. she was also receiving 24/7 health care with an aide provided by medicaid.
i want to try and sell the apt quickly, as is, pay the mortgage and just wait to find out if medicaid will put a lien on the apt for the services she received.
my sister feels that trying to sell the apartment is not a wise financial decision.
if the apt comes to us, through the surrogate court, isn't it correct that in the best decision for the estate, we try and sell the apartment? once in our names, are we at all liable for paying back medicaid through our PERSONAL account, as there is no other money in the estate? if the apartment goes into foreclosure, while in our names, does that reflect on our personal credit standing? what is the bet way to get things moving, and how do i get around the difference of opinion between the two of us? thanks you thank you thank you!
Submitted: 1 year ago.
Category: Estate Law
Expert:  John Elder replied 1 year ago.
Welcome! Thank you for your question.

To be able to sell the apartment you are going to have to file for probate and get permission with the probate court. There is no way that you can get the apartment out of probate court unless ALL debts are paid, including Medicaid's debt.

You must take some steps before you have any authority to sell the property and this will assure that all debts are paid before you get any of the money from the sale of the apartment.

First you must go down to surrogate's court and file for probate of your mother's estate. Second, you will file a notice to creditors and this gives creditors a certain time to file a claim with the surrogate's court. If a creditor fails to file a claim then you are never liable after the notice to creditors expires. Third, you must file a petition for sale of the apartment with the surrogate's court. The court will have to approve the sale of the apartment. Once the sale takes place the proceeds must go to the estate account . The estate account cannot transfer to you and your sister until all filed claims have been paid.

The surrogate's court in Nassau county should help you go through this process.

I cannot provide you with legal advise. I have provided you with information about the law related to your question. My answer, and any information that you find online, should not take the place of having a consultation with a lawyer in your area to advise you regarding your specific issues.

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John

Customer: replied 1 year ago.

Dear XXXXX,


it was my belief that because she died intestate, that we would go to surrogate court to appoint an administrator, but not have to go to probate???


do you know if there si any way to know for sure if medicaid will try to recoup their costs? i was told that they go back 3 months of service for my mother and try and recoup that, but everywhere ive looked, the answer is always tht medicaid MAY try and recoup. what determines that?


thanks again for your help,


Fran

Expert:  John Elder replied 1 year ago.

Fran,

 

Below is your question and my response:

 

"It was my belief that because she died intestate, that we would go to surrogate court to appoint an administrator, but not have to go to probate???


do you know if there si any way to know for sure if medicaid will try to recoup their costs? i was told that they go back 3 months of service for my mother and try and recoup that, but everywhere ive looked, the answer is always tht medicaid MAY try and recoup. what determines that?"


Sorry, I got a little loose with terms. You are correct, since your mother died intestate the procedure is called "administration" not "probate" and the person in charge is called "administrator" not "executor." The process is the same as if she had a Will. The surrogate court will appoint an administrator and the administrator can petition to sell the apartment to pay off debts. The surrogate court will require the apartment sold if there are not enough assets to pay all claims. The only way to get the apartment sold or in the heirs name is XXXXX XXXXX it through the surrogate court.

 

The only way to know exactly what the Medicaid claim will be is to file the notice to creditors and wait for them to file a claim. You can contact Medicaid directly to request that they tell you what is owed but they have no legal authority to speak with you unless you are the court appointed adminstrator.


thanks again for your help,

John Elder, Estate & Elder Law
Category: Estate Law
Satisfied Customers: 4631
Experience: Over 14 years experience in Medicaid, Estates, Trust.
John Elder and 2 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Dear XXXXX,


So now we have decided that there is no money to gain by selling the apartment. now what do we have to do to let it just go back to the bank who holds the mortgage? will this bear on our personal credit?

Expert:  John Elder replied 1 year ago.

It will not effect your personal credit. You have no obligation to do anything if you do not open an estate. If the debts are far greater than the assets then sometimes the best thing for an heir to do is nothing. Her estate and it's debts have no bearing on you or your credit. If you do nothing then it is possible a creditor takes over her estate to try and get paid back something by selling assets

.

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