Linda L. Kordes, Attorney At Law Official Newsletter
Nov 22, 2007
Inside This Issue
Heating Season For Rentals
Why You Need a Will
Medicaid Changes

Heating Season For Rentals

thermostatFor New York City landlords and tenants, the heating season is upon us once more. Commencing October 1st and continuing through May 31st, landlords must provide heat as follows:

  • Between 6 a.m. and 10 p.m. when the outside temperature falls below 55 degrees, the heat must register at least 68 degrees inside.

  • Between 10 p.m. and 6 a.m. when the outside temperature falls below 40 degrees, the heat must register at least 55 degrees inside.

  • Hot water must register at or above a constant of 120 degrees from the tap all day every day, 365 days a year.

The foregoing guidelines are the bare minimum the landlord must provide, and rent obligations may be abated if a tenant can prove the landlord's non-compliance. Generally, temporary reductions in heat or hot water that are promptly repaired and documented will not result in an abatement in rent. If a tenant has a heat or hot water complaint, he or she may contact the Heat and Hot Water Complaint Line by dialing 311; of course, the tenant has the obligation to give the landlord access to inspect and repair any problems, as necessary. There is no entitlement to an abatement in rent without proof of notice of the complaint to the landlord, or his agent, as the case may be.

If a landlord has been fined by the Department of Housing Preservation and Development for failure to provide heat and hot water as required by statute, after curing the problem, he or she may be entitled to a waiver of the fines by attendance at "heat school," classes provided by the City. Further information is available on the New York City website (www.nyc.gov) and on the websites or in person at Housing Court (www.courts.state.ny.us) or the Division of Housing and Community Renewal (www.dhcr.state.ny.us.)


Why You Need a Will

"Do I need a will?" is one of the most common questions I am asked as an attorney. There is a common misconception that wills are only for the wealthy. In fact, the primary reason to have a will is to ensure that your property passes and is distributed to your loved ones as you, and not the state, would like.

If you die without a will, your property will pass under what is known as the laws of intestacy. Under these laws, if you are survived by:

  1. A spouse and descendants: The first $50,000 and one-half of the remainder passes to your spouse, and the balance passes to your descendants.

  2. A spouse and no descendants: Your whole estate passes to your spouse.

  3. Descendants, but no spouse: All to your descendants.

  4. A parent or parents, but no spouse or descendants: All to the surviving parent or parents.

Additional rules apply where only distant relatives survive you. But are these laws consistent with your wishes? If not, then a will is a must.

"Another important reason to have a will is to protect your minor children. If you and your spouse die at about the same time, you can name a guardian for your children."

Another important reason to have a will is to protect your minor children. If you and your spouse die at about the same time, you can name a guardian for your children. This ensures that your children are raised and cared for by someone you trust and who shares the same values as you. Without a will, the guardian for your children will be selected by the court and may not be the same person you would have chosen. In addition, you can provide that any remaining assets pass to your children, in trust, and make specific directions to the guardian as to how you want those assets to be spent.

Now that you know you need a will, how do you go about making one? Should you buy a preprinted form or a software program to write one? You could, but your will might not be legal. There are many important rules that you might overlook if you attempt to draft a will yourself. Firstly, certain assets, such as joint bank accounts and real estate are not distributed under a will. Secondly, proper execution of the will must be proven. Currently, I have a matter pending in New York where the will was prepared by a decedent on a preprinted form; now, the witnesses can no longer be located. Because the decedent did not realize that she needed those witnesses to sign an affidavit, her will shall probably be rejected by the court. An experienced lawyer will know these rules and will help you develop the best plan for you.

In conclusion, every adult in New York should have a will and the benefits will be well worth the minimal investment.


Medicaid Changes

By now, you probably have heard that Congress passed a bill which may result in major changes in institutional Medicaid benefits for many middle class families. Institutional applicants for Medicaid may not have more than $720.00 in monthly income and $4,150.00 in resources. If married, that applicant's community spouse may not have more than $2,490.00 in monthly income and $99,540.00 in resources.

The changes that affect the most people are as follows: firstly, the applicant's primary residence, once considered an unlimited exempted resource, shall be capped at $500,000.00. Thus, an institutionalized Medicaid applicant with equity in a primary residence in excess of $500,000.00 would be Medicaid ineligible to the extent that his interest exceeds $500,000.00.

"Before submitting an application to Medicaid, it is a good idea to check with your lawyer, just to be sure that the above changes do not impact on your particular situation."

Secondly, the look-back period has been extended from 3 to 5 years. That is the window within which Medicaid focuses in determining whether an applicant has gifted away any assets. Thirdly, and this is the most profound change, is in the date the penalty period (of ineligibility) begins to run. Previously, if money or property was gifted during the look-back period, the date of commencement of the penalty period (of ineligibility) was the first day of the month following the date that the gift was made. Now, that period begins to run from the date of the Medicaid application. This change is significant because, in the past, a Medicaid applicant with limited resources could gift money to a child and then wait for the period of ineligibility to expire before applying to Medicaid for benefits. The change in the law makes that option unavailable.

The above changes are sweeping and profound. Before submitting an application to Medicaid, it is a good idea to check with your lawyer, just to be sure that the above changes do not impact on your particular situation.

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  Copyright 2007 Linda L. Kordes. All rights reserved. Visit us at www.kordeslaw.com