Authors Posts by Linda Toga, P.C.

Linda Toga, P.C.

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Linda Toga, Esq.

THE FACTS: I have been estranged from my family for many years. I want to be sure that family members are not able to inherit from my estate

THE QUESTION: Is that possible?

THE ANSWER: While you cannot disinherit your spouse, you can certainly take steps to prevent your siblings, children, cousins and other blood relatives from getting a share of your estate. However, keep in mind that even if they are not successful in inheriting from your estate, certain relatives can try to recover against your estate if you do not plan properly. Defeating claims against your estate could be time consuming and costly.

HOW IT WORKS:

You did not mention whether you were married and, if so, whether you were estranged from your spouse as well as from other family members. If you do have a spouse, she will be entitled to a share of your estate upon your death regardless of what you may do with your assets.

Spouses have a statutory right of election that entitles the surviving spouse to one-third of most of their deceased spouses’ assets, even if those assets are jointly held or are in a trust. Getting a divorce or getting your spouse to waive her spousal rights are the only options you have for defeating any claim she may make against your estate.

As for other family members, you can ensure that they do not get a share of your estate if you transfer all of our assets into a trust. Unlike a will that is subject to court oversight upon your death, a trust is generally free of such oversight. In most cases, people who are not named as beneficiaries in the trust are not even required to be given notice of the grantor’s death. That means that trust assets can be distributed without notice to your family.

If you do not want to transfer assets into a trust, you can execute a will that explicitly states that you do not want the family members identified in the will to share in your estate.

While some people believe leaving a nominal amount of money to the people they do not want to inherit will convince them not to contest their will, that strategy rarely works. If someone would be entitled to $50,000 if a will was denied probate, it is unlikely that they will accept $10 to simply walk away.

It is important to note that only certain family members have the right to contest a will. If you have children, for example, they could contest your will because, if you died without a will, they would be in line to inherit.

In that case, your siblings could not contest your will because your children have priority. Your siblings could only contest your will if you die without a spouse, parents or children. When deciding how to proceed with your estate plan, it will be helpful to understand the circumstances under which certain family members can try to recover against your estate.

If you are serious about protecting your estate from your family, you should consult with an experienced estate planning attorney. Working with an attorney who regularly deals with the issue of estranged family members is the best way to ensure that your estate plan will meet your needs.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: When I was 3, my parents adopted a baby and named her Mary. My mother died seven years later and my father remarried. My father and his second wife had two children together. My father recently died without a will. My half-siblings insist that since Mary is not my father’s biological child, she is not entitled to a share of his estate. 

THE QUESTION: Are they correct? 

THE ANSWER: Fortunately for Mary, your half-siblings are wrong. 

HOW IT WORKS: If your father legally adopted Mary, she has the same right to a share of your father’s estate as you and your father’s other biological children. The law in New York is quite clear on that point. 

Section 7(c) of the New York intestacy statute governs how an estate is distributed when someone dies without a will. It states that “the right of an adopted child to take a distributive share … continue[s] as provided in the domestic relations law.” 

Domestic Relations Law Section 117 explicitly states that “[t]he adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other …”

In other words, the relationship between Mary and your father is legally the same as the relationship between you and your father and the relationship between your half-siblings and your father. As such, she is entitled to the same percentage of his estate as any of his biological children. 

In addition, if Mary had predeceased your father and had children of her own, her children would be entitled to share the inheritance that would have otherwise passed to Mary. 

It is worth noting that Domestic Relations Law Section 117 not only sets forth the rights of the adoptive child but also the rights of the adoptive parent. If Mary had predeceased your father without a spouse or children of her own, your father, as her adoptive parent, would be entitled to her entire estate. 

If you are going to be petitioning the Surrogate’s Court for letters of administration so you can handle your father’s estate, you should consult with an experienced estate attorney to ensure that the administration process is handled properly and proceeds smoothly despite the position taken by your half-siblings.   

Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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Linda Toga, Esq.

By Linda M. Toga, Esq.

THE FACTS: I am a widow with modest assets and a small IRA. I have two grown children and two young grandchildren. My friends have been urging me to see an attorney about developing an estate plan.

THE QUESTION: Considering the size of my estate, is that really necessary? 

THE ANSWER: The short answer to your question is a resounding “Yes.” Estate planning is not just for the wealthy and is not limited to the preparation of a will. Estate planning touches on everything from wills, trusts and powers of attorney to health care proxies, living wills and spousal waivers. Even if you just want a will, there are countless issues that you should discuss with an experienced estate planning attorney to ensure that your will accurately reflects your wishes and takes into account your specific circumstances. 

The reason professional help is advisable is that, for the most part, people don’t know what they don’t know. In other words, a person can fill out a form will and sign it but, if she doesn’t know what questions to ask or what issues should be considered, she likely won’t know the adverse consequences of her uninformed choices. The end result is an estate plan that does not reflect the goals and wishes of the person, or worse, one that leads to protracted litigation. 

To avoid that, you should discuss with an attorney how your assets are titled and whether all of your assets will pass under your will. Assets that are jointly owned with someone else or that are subject to a beneficiary designation are nonprobate assets and will not pass under your will. How such assets are going to be distributed should be taken into consideration when developing an estate plan.  

You should also discuss with your attorney whether or not your probate assets will be passed in equal shares to your children. One question that needs to be addressed is whether you want your executor to take into consideration nonprobate assets that may pass to your children or loans that you may have given your children when determining the amount of their share. Another is how you want your estate to be divided in the event one of your children predeceases you. 

If you want the share allocated to a predeceased child to pass to his/her children, you should discuss with your attorney the option of including a trust in the will to protect the assets passing to the minor grandchildren.

Although both of your children would have equal rights to be named administrator of your estate if you were to die without a will, you should discuss with your attorney what is involved in the probate of your will and the administration of your estate. If your children do not both live locally, it may be burdensome to have them serve as co-executors. Or perhaps they don’t get along and naming a third party to handle your estate would be advantageous. Discussing these issues is an important part of developing even the most basic estate plan. 

As mentioned above, as part of your estate planning you should also discuss with an attorney the benefits of having a power of attorney, health care proxy and living will in place. Each of these documents plays an important role in an estate plan by either ensuring that your affairs are taken care of in the event you lack capacity or by making your wishes known with respect to medical treatment and end-of-life care.

Your attorney can advise you as to the duties and responsibilities of the agents named in a power of attorney and health care proxy. This will allow you to consider possible agents in light of the roles they would assume if named. Discussing this with your estate planning attorney will enable you to make informed choices. If you don’t engage in the process, you are essentially forfeiting the right to choose who will assist with the management of your assets while you are alive and who may be called upon to make life and death medical decisions on your behalf. When asked, most people admit that they want to be the one to choose. 

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate planning, estate administration, real estate, marital agreements and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I am one of four children. My siblings are Joe, Bill and Mary. My mother died last month. About 15 years ago, she went to her attorney and had a will prepared in which she named me as executor.

Rather than divide her estate equally between her four children, my mother essentially disinherited my brother Joe and divided her estate equally between me, Bill and Mary. At the time she executed her will, the reason my mother gave for her decision to leave Joe out was that he ignored her and was never around when she needed help.

About 10 years ago, Joe moved to a house within a mile of my mother’s house and started spending time with her. He has encouraged his children to visit their grandmother and my mother and Joe’s wife and children have actually vacationed together. Since he lived closer to my mother than any of her other children, Joe became the one my mother relied upon whenever she needed assistance of any kind.

Over the years, Joe and my mother developed a very special relationship. I don’t know why my mother never revised her will but I am convinced, based upon her relationship with Joe and things that she told me, that she would want him to receive a share of his estate.

THE QUESTION: As the named executor, am I able to divide my mother’s estate into four equal shares so that Joe receives one-fourth of the estate? I feel terrible leaving him out but Mary and Bill are adamant that I must follow the instructions set forth in my mother’s will. Are they correct?

THE ANSWER: Unfortunately for Joe, Bill and Mary are correct. As executor, it is your responsibility to marshal your mother’s assets and to distribute them in accordance with the terms of her will. As much as you may want to include Joe, and as convinced as you may be that that is what you mother may have wanted at the time of her death, you do not have any discretion with respect to the distribution of your mother’s assets.

If you unilaterally decide to pass part of the estate to Joe, Bill and Mary will be well within their rights to ask the court to remove you as executor. They could also ask that the judge surcharge you so that you would be personally responsible for the funds that were diverted to Joe.

The only way you can pass a share of the estate to Joe is if Bill and Mary agree that Joe should share in the estate. If everyone is in agreement, it is simply a matter of you, Bill and Mary each transferring a portion of your inheritance to Joe. If Bill and Mary do not want to share, you can always give Joe some or all of what you are entitled to under the will. As long as Bill and Mary receive what they are entitled to under the will, they will not have a basis for objecting.

It is unfortunate that your mother did not review her will and revise it once her relationship with Joe improved. If she had gone back to her attorney, it would have been relatively easy for the attorney to prepare a new will for your mother in which all of her children were named as equal beneficiaries, or to prepare a codicil to her will that would have the same end result.

It is important that people understand that estate planning is not the sort of thing that is done once and forgotten. Wills and other estate planning documents should be reviewed periodically and changed to reflect changed circumstances. If your mother had revised her will or had a new will prepared that took into consideration her improved relationship with Joe, you would not be in the position you are now of trying to make things right.

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate planning, estate administration, real estate, marital agreements and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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By Linda Toga Esq.

Linda Toga, Esq.

THE FACTS: Last year my aunt Sue died without a will. She was widowed and owned a house that had been in our family for generations. The understanding was that when she died, the next generation, including me and my siblings, would inherit the house. Recently, my aunt’s daughter, Mary, signed a deed transferring the house to herself and her only sibling, Jane. 

THE QUESTION: Did Mary have the legal authority to transfer the property? 

THE ANSWER: Unfortunately for you, as Sue’s daughter and a distributee of Sue’s estate, Mary was well within her rights to transfer the property. If Sue had a will in which she left you and your siblings a share of the house, Mary would not have been able to transfer the property to herself and Jane. She would have first been required to obtain letters testamentary from the Surrogate’s Court (assuming she was named as executrix in the will) and she would then have to abide by the terms of the will by transferring the house to the beneficiaries named in the will. 

However, since Sue died without a will, by law title to the house automatically vested in her children when she died. In other words, as Sue’s only children, Mary and Jane immediately became the legal owners of the house when Sue died. The law that addresses vesting does not apply to you or your siblings because you are not in Sue’s direct bloodline. If Sue did not have any children, the outcome may have been different.  

If Sue wanted you and your siblings to have a share of the family home, she should have had an estate planning attorney prepare a will for her in which her wishes with respect to the property were memorialized. The executor of the estate would then be obligated to carry out Sue’s wishes and transfer the property to you, your sibling and any other beneficiaries set forth in the will. Absent a will, you have no claim to the house. 

Linda M. Toga provides legal services in the areas of estate planning/elder law, probate and estate administration, real estate, small business service and litigation from her East Setauket office.

Most insurance companies allow a third party to automatically receive notification if a premium is not paid. Stock photo

By Linda M. Toga, Esq.

Linda Toga, Esq.

THE FACTS: My father purchased long-term care (LTC) insurance decades ago. Since he had been widowed at a relatively early age, he felt it was important that he have coverage in the event he ever needed skilled nursing care or in-home care.

Recently it has become obvious that my father’s ability to handle his affairs is somewhat impaired. In addition, his health is failing and I believe he needs help with activities of daily living.

Since I am not in a position to assist my father on a daily basis, I decided that the time had come to file a claim for benefits under my father’s LTC policy to cover the cost of his care. When I filed a claim, I was shocked to learn that my father’s policy had lapsed two years ago based upon failure to pay the premium.

THE QUESTION: What are our options with respect to coverage for my father’s LTC insurance?

THE ANSWER: Unfortunately you don’t have any options when it comes to your father’s LTC insurance. When a payment is missed on such policies, companies sometimes give the insured a grace period during which the policy can be reinstated if payment is received. However, if your father failed to pay premiums for two years, I seriously doubt that reinstatement is an option.

Although it is too late to address the non-payment of the LTC insurance premium, you and your father should go through all of the paperwork relating to other insurance he may have, as well as accounts, contracts and recurring obligations, to be sure he has not missed any payments or failed to take whatever action may be needed to avoid penalties.

Most insurance companies allow customers to name a third party who will automatically receive notification if a premium is not paid. If your father had designated you as the person to receive notification of any nonpayment, you could have taken the necessary steps to pay the premium in a timely manner and his LTC policy would not have lapsed. Like insurance carriers, utility companies generally offer customers the option to name a third party to receive important notices regarding nonpayment. Your father should take advantage of these arrangements.

If he has recurring bills that need to be paid and is not able to designate a third party to receive late notices, he may want to consider arranging with his bank to automatically make those payments directly from his checking account. If automatic payments are set up, he will not have to worry about missing a payment because he misplaces the bill, is away when the payment is supposed to be made or simply forgets to send the check.

In addition to working out a system to ensure that your father’s bills are timely paid, you may want to talk to him about an arrangement to ensure that he takes the necessary steps each year to receive his minimum required distributions from any qualified retirement accounts he may have. If your father is unsure of whether he has accounts that require minimum distributions, you may want to ask him if you can speak with his financial adviser and/or accountant. These individuals should be able to assist you.

Assuming such accounts exist, you can ensure that the necessary steps are taken each year by simply making a notation on your own calendar of your father’s obligation to notify his plan administrator. Even if your father does not need the money, it is important that he take the minimum distribution every year since failing to do so can result in significant penalties.

When discussing with your father the lapse of his LTC insurance and suggestions for avoiding similar problems in the future, you may want to suggest to him that he retain an attorney with experience in estate planning to prepare for him a comprehensive power of attorney. The agent named in such a power of attorney will have the authority to handle your father’s affairs and will be in a position to ensure that he does not experience the types of problems discussed above.

Linda M. Toga provides legal services in the areas of estate planning/elder law, probate and estate administration, real estate, small business service and litigation from her East Setauket office.

The distribution of the assets in an account with a TOD designation is independent of the terms of a will. Stock photo

By Linda M. Toga, Esq.

Linda Toga, Esq.

THE FACTS: My mother had a savings account which held nearly $50,000. About a year ago while my daughter was visiting my mother, my mother and daughter went to the bank to make a deposit. While there an employee of the bank advised my mother that it was important that she name a beneficiary on her savings account. The bank employee suggested that not having a beneficiary on the account would create problems when my mother died. 

Although my mother has a will that provides that her grandchildren get equal share of her estate, my mother trusted the employee and signed a “transfer on death” designation naming my daughter as the recipient of the account following my mother’s death. 

My mother recently told me about this visit to the bank and was quite upset to learn that the result of her signing the form at the bank was that my daughter would inherit approximately $50,000 more than her siblings and cousins. 

THE QUESTION: What can my mother do to ensure that all of the grandchildren receive equal shares of her estate?

THE ANSWER: If your mother wants her grandchildren to receive equal shares of her estate when she dies, she has two options: she can change the transfer on death (TOD) designation or she can change her will. 

HOW IT WORKS: Before detailing each option, it is important to know that assets passing under your mother’s will are not treated the same as assets passing pursuant to the TOD designation. 

Assets passing under the will are called probate assets. Their distribution is controlled by the terms of the will. The assets in the account with the TOD designation are nonprobate assets and their distribution is independent of the terms of the will. As long as the TOD designation is in place, the assets in the account will not be governed by your mother’s will even if she makes an explicit bequest of those assets in her will. 

With respect to the TOD designation, your mother can either revoke the designation entirely or she can change the designation form. If she revokes the TOD designation, the funds in her account will be deemed probate assets and they will pass under her will. The end result would be that each grandchild would receive an equal share of the account. 

Alternatively, your mother may revise the TOD designation by adding her other grandchildren’s names to the form and stating that the funds are to be divided equally between the named beneficiaries. In this scenario, the funds in the account will still be considered nonprobate assets, but the bank will be required to pass an equal share of the assets to each of your mother’s grandchildren. Since the revocation or modification of the TOD can be done by simply going to the bank and signing a new form, changing or revoking the TOD designation is the easiest and least expensive way to address the problem. 

The second option open to your mother to ensure that her grandchildren receive equal shares of her estate is for her to leave the current TOD designation in place and to revise her will. She would have to add language to the will that provides that the amount of the bequests passing to each grandchild under the will shall be adjusted to take into consideration any nonprobate assets they may receive. 

For example, if your mother’s current will provides that $100,000 of probate assets is to be divided equally between three grandchildren, the provision would dictate that the $50,000 in nonprobate assets passing to your daughter should be added to the probate assets so that the total value of estate assets earmarked for grandchildren could be calculated. That total ($150,000) would then be divided equally between the three grandchildren. Using the figures above, the end result would be that each grandchild would receive the same amount of money from your mother’s estate; $50,000.  

Your mother should seek the assistance of an experienced estate planning attorney if she opts to revise her will. She cannot revise her will by simply writing in the margins or making other notes in the will as to her wishes. Such handwritten attempts at changing a will are not enforceable and the end result would be that your daughter would receive a share of the probate assets plus any funds remaining in the savings account at the time of your mother’s death. 

Linda M. Toga provides legal services in the areas of estate planning/elder law, probate and estate administration, real estate, small business service and litigation from her East Setauket office.

A power of attorney is a legal document that gives someone you choose the power to act in your place. Stock photo

By Linda M. Toga, Esq.

Linda Toga, Esq.

THE FACTS: My elderly aunt, Mary, has no spouse or children and is getting to the point where her health is failing and she is forgetting to pay her bills. Mary has a will and a health care proxy, but she has not appointed anyone to handle her financial affairs or assets. 

THE QUESTION: What do you suggest?

THE ANSWER: Mary should make an appointment with an experienced estate planning/elder law attorney to discuss the benefits of having a power of attorney prepared. 

HOW IT WORKS: A power of attorney is a legal document whereby a person can delegate to another person authority to carry out specific types of transactions on their behalf.

The person who delegates authority under a power of attorney is the principal. The people to whom authority is delegated are called agents. A principal can name a single agent or co-agents. When a single agent is named, it is important to name a successor agent in case the person who is named as the sole agent is unable to serve. If co-agents are named, the principal must decide whether the agents must act together or may act alone. 

The New York State Legislature created a basic power of attorney form that was most recently revised in 2010. This statutory form allows the principal to delegate authority to carry out banking transactions, sell real and personal property, deal with insurance carriers and address health care billing and payment matters, among other things. 

Although the basic power of attorney may be sufficient for some people, due to her age and her situation, Mary should sign what I refer to as an enhanced power of attorney. An enhanced power of attorney allows people to delegate authority to another person to perform transactions that are not covered in a basic power of attorney and that may be needed in the context of estate and Medicaid planning. 

These transactions include, but are not limited to, creating and/or revoking trusts, changing beneficiaries on accounts, life insurance policies and pension plans, accessing online accounts, entering into care giver agreements, borrowing money, making loans, making arrangements for pet care, waiving attorney/client privilege and signing intent to return home letters for Medicaid purposes. 

As mentioned above, the basic power of attorney is not adequate to address the countless types of transactions that may be needed in the context of estate and/or Medicaid planning. That is why it is important for Mary to speak with an attorney who concentrates in the areas of estate planning and elder law. 

In addition to being able to provide Mary with a power of attorney that meets her needs, the attorney will be able to discuss with Mary the importance of signing the Statutory Gifts Rider that is part of the New York statutory form. By signing the rider, Mary will be able to give her agent gifting authority to make gifts in excess of $500 per year to individuals or charitable organizations. This gifting authority is essential if Mary will be applying for Medicaid and has assets that must be moved out of her name in order to qualify for benefits. 

Without the rider, the power of attorney will not allow Mary’s agent to engage in last minute Medicaid planning that could mean the difference between being eligible for benefits and being forced to spend down her assets before receiving Medicaid. 

Linda M. Toga provides legal services in the areas of estate planning/elder law, probate and estate administration, real estate, small business service and litigation from her East Setauket office.

Out-of-date beneficiary designations are a common and costly mistake. Stock photo

By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My brother Joe was dying from cancer and wanted to be sure that all of his assets passed to his wife, Mary, upon his death without the need for court intervention. He mentioned this a number of times, so I assumed he had taken the necessary steps to ensure that his wishes were honored. 

The car Joe drove was in Mary’s name and the house in which he lived was jointly owned with Mary. However, Joe had substantial assets in separate bank and brokerage accounts. After Joe died, Mary was told by the bank and brokerage company that Joe never signed any documents indicating that he wanted his accounts to pass to Mary automatically upon his death. 

THE QUESTION: Is there any way Mary can get access to the funds in Joe’s accounts without getting authority to do so from the Surrogate’s Court?

THE ANSWER: Unfortunately for Mary, she will have to petition the Surrogate’s Court for authority to access Joe’s accounts. If Joe died with a will and the will names Mary as executrix, Mary will need to file a petition seeking letters testamentary. The petition, an original death certificate and a fee based upon the value of the accounts must be filed with the Surrogate’s Court in the county where Joe lived at the time of his death. Once letters testamentary are issued to Mary, she will be able to access the funds and, assuming she is the only beneficiary under the will, do whatever she deems appropriate with the funds. 

If Joe died without a will, Mary will have to petition the court seeking letters of administration. The process and the fees for the administration proceeding are similar to those associated with a probate proceeding. Again, once letters are issued to Mary, she will have the authority to access the funds in the account. Mary will be required to distribute the funds in accordance with the NYS intestacy statute that governs the distribution of estates of people who die without a will. If Joe had children, they will be entitled to a share of the money in the accounts to the extent it exceeds $50,000. 

Based on your description of the assets in the separate accounts as “substantial,” I am assuming there is more than $30,000 at issue. If that is not the case, Mary can file with the Surrogate’s Court an affidavit in relation to a small estate to get authority to access the funds in the accounts. The account numbers and the balance in each account must be provided in the affidavit. Mary will be issued a certificate for each account giving her authority to access the account.

 It is unfortunate that Mary will have to seek court intervention in order to access Joe’s accounts, but she should take some comfort in the fact that the probate/administration proceedings are not burdensome and that her situation is not unusual. Clients frequently find that the steps taken by a decedent were not sufficient to ensure that their estates pass as the decedent wished. 

To avoid this situation, I encourage my clients to periodically review all beneficiary designation and transfer on death forms that have been filed and to review how jointly held property is titled. These steps are critical to ensuring that the client’s estate plan truly reflects the client’s wishes. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, wills and trusts, guardianship real estate, small business services and litigation from her East Setauket office.