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legally speaking

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I will be getting married soon. It is a second marriage for both me and Mary. We both have children from our prior marriages. 

THE QUESTION: Is there something I can have Mary sign to ensure that my assets will pass to my children when I die? 

THE ANSWER: If you are only worried about what happens to your assets when you die, you can ask Mary to sign a waiver of her right of election. As long as you have kept your assets separate from Mary’s as opposed to comingling your assets in joint accounts or investing your assets in jointly held property, a waiver should be adequate. 

Under the law, regardless of how assets are held or the wishes memorialized in a will, trust or beneficiary designation form, a surviving spouse is entitled to one-third of his/her deceased spouse’s assets. This entitlement is known as the surviving spouse’s right of election. The types of assets that are subject to the right of election are set forth in Estates, Powers and Trusts Law Article 5. 

Pursuant to Article 5, a surviving spouse’s elective share may include assets owned by the decedent individually but also assets that the decedent owned jointly with others and assets held in retirement and pension plans, to name a few. 

A surviving spouse must exercise his/her right of election within six months of the issuance by the Surrogate’s Court letters testamentary or letters of administration. Although spouses who voluntarily agree to live apart can still exercise their right of election, a spouse who is found to have “abandoned” a decedent is barred from claiming an elective share. 

In order for Mary to waive her right of election, she must sign a document that states that she waives her right of election and all claims against your estate. The waiver must be signed by Mary in the presence of a notary. Of course, if, after Mary signs a waiver, you choose to leave assets to Mary in your will, you can certainly do so. The waiver does not prevent Mary from being a beneficiary of your estate. It simply prevents her from demanding more than you may voluntarily allocate to her.

 It is important to note that a waiver only addresses Mary’s rights to your assets after your death. If you are concerned about what may happen to assets in the event of a divorce, you should discuss with an experienced attorney your options in terms of a pre- or postnuptial agreement. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, 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.

THE FACTS: My grandson Frank is disabled and will likely need medical and financial assistance as an adult. I would like to name Frank and my other grandchildren as beneficiaries in my will, but I am concerned that doing so may make Frank ineligible for government assistance programs. 

THE QUESTION: How can I leave Frank money without interfering with whatever government benefits he may be receiving at the time of my death? 

THE ANSWER: The best way to provide financial support to Frank without making him ineligible for needs-based government benefits like Medicaid and Section 8 housing assistance is to direct your executor to put Frank’s bequest in a supplement needs trust, (SNT). 

An SNT is designed so that the trustee can use trust assets to supplement the government benefits that the disabled beneficiary may be receiving. Trust assets can be used to enhance the life and well-being of the beneficiary. They cannot, however, be used to pay for goods and/or services provided to the beneficiary by the government. 

For example, the trustee may pay for a disabled beneficiary’s cellphone, car or vacation but cannot pay for medical treatment if the beneficiary is receiving Medicaid. Similarly, if the beneficiary’s housing costs are covered by a needs-based government program, the trustee can use the trust asset to furnish an apartment but cannot pay the rent. 

As mentioned above, in your will you can direct your executor to fund a testamentary SNT that will be administered by a trustee of your choosing. In the alternative, you can create and fund an SNT for Frank during your lifetime. One advantage of this approach is that other family members can then contribute to the SNT either directly or by a bequest in their own wills. In either case, Frank will benefit from your generosity because rather than his inheritance being used for necessities, the trust assets can be used for things that will enhance his life, make him more comfortable and make each day more enjoyable. 

To create an SNT, you should contact an attorney who has prepared trusts in the past and who has experience working with clients concerned about the future of their disabled beneficiaries. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, 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: My brother Joe died recently. At the time of his death, Joe was living in a house that has been in the family for generations. When my father died, Joe inherited the house. It was understood that he would eventually pass it on to me, his only surviving sibling, or to his children so that it would remain in the family. Instead, Joe has left the house to a woman with whom he has been living for the past five years. She has no relationship with the family.

THE QUESTION: Can Joe’s children and I contest the will to prevent the house from passing to a nonfamily member?

THE ANSWER: Whether a person can object to the probate of a will depends on two factors: whether the person has standing (the legal right to object to the probate of the will) and whether the person has a legal basis for objecting. 

A person has standing to object to a will only if the person would inherit from the estate if there was no will. That, in turn, depends on the relationship between the person and the decedent and whether there are people alive whose relationship with the decedent takes priority. 

The intestacy statute, which governs how an estate is distributed when a person dies without a will, sets forth the classes of people who are in line to inherit in their order of priority. Since Joe’s children are alive and have priority over you under the statute, they have standing to object to the probate of the will but you do not.

As for a basis for objecting to probate, there are three grounds for challenging the validity of a will. They are improper execution of the will, undue influence over the testator and lack of testamentary capacity. 

If the execution of the will was supervised by an attorney, there is a presumption that the required formalities were followed. However, if the will was not signed by the testator in the proper place in the presence of suitable witnesses who were advised that they were witnessing the execution of a will, that presumption can be rebutted. The issue of improper execution is more common when there is no supervising attorney present when the will is signed. 

Unlike improper execution, the other grounds for challenging the validity of a will, undue influence and lack of capacity, both address the mental fitness of the testator. Undue influence may exist when the testator is easily manipulated or persuaded by someone who pressures the testator to make certain bequests. 

Lack of testamentary capacity may be established with proof that the testator was notably confused about and/or unaware of what he owned, who his relatives might be and/or the consequences of the bequests made in his will. Both undue influence and incapacity are difficult to prove, especially if years have passed between when the will was executed and when it is offered for probate. 

If Joe’s children suspect that any of the grounds for a will contest that are discussed above exist, they should consult with an attorney with experience in estate litigation. The attorney should be able to evaluate the situation and give them some sense of whether they should proceed with a will contest. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, 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.

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.