Can my dad deny his share of an inheritance and give it to me?
January 26, 2011 2:07 PM   Subscribe

Need advice on a legal matter. Not sure what type of lawyer I need. What type of lawyer handles this and do you have any recommendations?

Here's the story, as concise as I can be:

I am in New York State, specifically Bronx County. My mother passed away in 2006. She had a pension/insurance plan with her job. She worked for New York State at a government job if that makes any difference. Myself, my brother and my father were all named as beneficiaries to her pension/insurance. My brother and I collected our shares of the inheritance in 2007. There was no will, just the naming of myself, my brother and my father as beneficiaries to her insurance policy.

Here is where it gets tricky. My father has Parkinson's Disease in a very advanced stage and lives in a nursing home. I have a Durable Power of Attorney for my dad to take care of his affairs. First, I have a question -- If my father collects his share of the inheritance, will it all go to the nursing home he resides at? My brother is disabled and I'm currently in college and looking for work. This inheritance, though rather small (five figures) would help us greatly and I know my father would want the money to go to myself and my brother. Would any sort of attorney even take this case? Do I need an attorney? What type of attorney would I need and where would I find the attorney? I am completely on my own and have no relatives to speak to regarding this matter.

I just received a letter addressed to my dad saying he needs to respond to it in order to collect his share of the inheritance, but am at a loss as to what to send back. What happens if he doesn't collect the money? Will it vanish into a void of nothingness? I cannot afford that. I am trying to be as rational as I possibly can about this but all the Googling in the world isn't helping me right now.

This is another tricky part: At some point during the process (I was 20 years old when it happened, I am now 24), someone who worked for NYS Retirement and Pension service told me that my father could deny his share of the inheritance and instead choose to give it to someone else, which in this case would be me. Is this true and how would I go about doing it? I am really lost, really tight on cash and don't have anyone to turn to other than friends who are as clueless as I am... I hope some of you can help, it would be greatly appreciated. Any advice would be great.
posted by Pleadthefifth to Law & Government (10 answers total) 1 user marked this as a favorite
You need to speak with a trust and estates attorney. Search here.

This is not legal advice, but referral information. I am not your lawyer, seek a competent attorney in your jurisdiction.
posted by Ironmouth at 2:10 PM on January 26, 2011 [3 favorites]

You likely need a Wills & Estates or Probate attorney.

Do you know any lawyers of any kind? If so, call them and ask them who they would hire if they were in your situation. There's also a Metafilter Wiki page on how to get a lawyer, so that might give you some useful advice.
posted by decathecting at 2:11 PM on January 26, 2011

I would start with someone who works in wills, trusts, and estates in NY. On preview, what the first 2 folks said.
posted by jquinby at 2:12 PM on January 26, 2011

If you are a college student, your school may have a legal aid service. You could start there. There may not be any estate attorneys there, but you could get some general advice, and possibly get a referral to an affordable attorney.
posted by annsunny at 3:07 PM on January 26, 2011 [1 favorite]

I sent you a me-mail for an excellent estate attorney in NYC.
posted by kimdog at 3:23 PM on January 26, 2011

IANYL either but concur you want a trusts and estates lawyer. I'd suggest you contact your local bar association for a referral. This also does not sound too complicated, but discuss that and the fee arrangement with the attorney(s) once you get your referral(s).
posted by bearwife at 3:25 PM on January 26, 2011

I am a lawyer, but I am not your lawyer. See if your state's probate laws are of any use in answering your more general questions. If something isn't clear from the text, then get professional legal advice (which this comment is not).
posted by holterbarbour at 3:29 PM on January 26, 2011

If my father collects his share of the inheritance, will it all go to the nursing home he resides at?

I'm not a lawyer, but I'm in the thick of similar issues. The crucial question here is whether your father's nursing home stay is funded by private long-term care insurance, or whether he is on Medicaid; secondarily, your father may have signed some sort of contract with the nursing home to transfer assets to them, which would potentially cover the inheritance.

If your dad is on Medicaid, then any assets that are not exempt are supposed to be used to pay for his care. Transferring these assets generally cannot take place within the most recent sixty months prior to qualifying (increased from thirty-six months a couple of years ago). This is called the Medicaid Look-Back.

While making someone a beneficiary is often a simple paperwork matter, hence your ability to avoid probate in your mother's death, I would be very cautious about assuming that these funds can somehow get to you and your brother. Only an attorney experienced in Elder Law and probate issues can really give you a worthwhile opinion.

What happens if he doesn't collect the money? Will it vanish into a void of nothingness?

This is usually a simple question of something being paid into a state's unclaimed assets fund, which will in many cases hold it in perpetuity until appropriately claimed. I wouldn't panic on that score.

my father could deny his share of the inheritance and instead choose to give it to someone else

The rules differ by state and pension fund, of course, but this is typically a matter of what specific things will flow to the new beneficiary. But this is predicated on the assumption that the inheritance is your father's to give away, which it might not be if he's on Medicaid.
posted by dhartung at 4:44 PM on January 26, 2011

2 Not licensed in New York
3 all the answers above are correct BUT NOTE if your dad is mentally incapacitated you MUST consult an estate planning lawyer in your area if YOU intend to use your status as attorney-in-fact to cause the money to go to you.
4 Will the money go to the nursing home depends primarily on whether your dad is on Medicaid
5 Don't listen to people who tell you dad can "disclaim" his inheritance if they are not specialist lawyers. In this context that word has a very specific meaning which is not as intuitive as you might think.

Yes talk to a lawyer. On the 1 - 10 scale of complexity in this field this is about a 2 or so - anyone who has done this work for a while should be easily able to explain options and help with choices.
posted by BrooksCooper at 5:06 PM on January 26, 2011

Some of your questions are trusts and estates questions, but for the Medicaid-inheritance-nursing home question, you might also consider consulting someone who practices elder law. The elder law specialist can answer whether the money would go to the nursing home and advise you about how to maximize benefits and issues with the durable power of attorney.
posted by *s at 6:26 PM on January 26, 2011

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