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Linda Toga Esq.

When a person dies without a will, the law determines who the heirs of the estate are. Stock photo

By Linda M. Toga, Esq.

Linda Toga

THE FACTS: After my mother’s death I was approached by a man I will refer to as Joe who claims that my mother was his biological mother as well. According to Joe, before she and my father married, my mother gave birth to Joe and immediately put him up for adoption. Although Joe admits that my mother rejected his attempts to develop a relationship with her during her lifetime, Joe now claims that since my mother died without a will, he is entitled to a share of my mother’s estate.

THE QUESTION: Is Joe correct? Will my siblings and I have to share our inheritance with him?

THE ANSWER: Fortunately for you, Joe is wrong.

HOW IT WORKS: Generally a child who is adopted out does not have the right to an inheritance from the estate of his birth mother. The order of adoption generally relieves the birth parents of all parental duties and of all responsibilities for the adopted child. At the same time, the order extinguishes all parental rights of the birth parent to the estate of a child who has been adopted, including the right to serve as administrator of that child’s estate and the right to inherit under the intestacy statutes.

Although Joe seems to be relying upon the fact that your mother died without a will and, therefore, did not explicitly disinherit him, his reliance is unwarranted. That is because the New York State intestacy statute and the domestic relations law govern how your mother’s estate should be distributed.

While the child of a decedent is generally entitled to a share of his parent’s estate if the parent dies without a will [Estates, Powers and Trusts Law §4-1.1 (a)(1) and (3)], the rights of an adopted child in the estate of a birth parent are governed by subsection (d) of the statute. It provides that the Domestic Relations Law, specifically Domestic Relations Law §117, controls.

Domestic Relations Law §117 (1)(a) and (b) provide that an order of adoption relieves the birth parent of all parental duties and responsibilities and extinguishes any rights the parent would otherwise have over the adoptive child’s property or estate. At the same time, the order terminates any rights of the adoptive child to an inheritance from the birth parent.

Although there are some exceptions to these laws, the logic behind terminating inheritance rights is to prevent people in Joe’s position from enjoying a windfall by inheriting from both his birth and adoptive parents and to prevent a birth mother from receiving an inheritance from a child that she did not support during her lifetime.

Under the circumstances, the only way Joe could inherit from your mother’s estate would be if she chose to name him as a beneficiary in a will or a trust or on a beneficiary designation form. If Joe decides to pursue a claim against your mother’s estate, you should be able to defeat the claim by providing the court with evidence that Joe was legally adopted as a child.

It would be wise to retain an attorney experienced in estate administration to assist you with this matter.

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

A pet trust is effective immediately upon your death whereas a will can take months to execute.

By Linda Toga

Linda Toga, Esq.

THE FACTS: My mother has a dog, Fido, who means the world to her. When it comes to Fido, money is no object. She is very concerned about what will happen to Fido when she dies. Not only does she worry about who will care for Fido but also about who will pay for Fido’s care.

THE QUESTION: Should these issues be addressed in her will?

THE ANSWER: While the long-term care of Fido can be addressed in her will, your mother needs to make arrangements for Fido’s care for the period immediately following her death because the provisions of her will are not effective until the will is probated. That could take some time.

I always suggest that pet owners arrange in advance for someone to take care of their pet in the event they are unable to do so either because of disability or death. It is important that a caregiver is identified and is ready and willing to take the pet on relatively short notice. These temporary arrangements need not be in writing unless the owner feels that people are going to fight over who will care for the pet.

For example, if you and your siblings agree with your mother that Mary will take care of Fido, there is no need to put the arrangement in writing. However, if all of you want to take care of Fido, your mother should put her wishes in writing to avoid conflicts.

As for the long-term care of Fido after your mother’s passing and the cost of that care, I suggest that your mother include in her will a pet trust. When thinking about the provisions to include in the pet trust, your mother should not only consider who will care for Fido for the rest of his life but also whether the appointed caregiver has the resources to cover the costs associated with pet ownership.

Even if money is not an issue for the caregiver, your mother should confirm in advance that the caregiver’s living arrangements are suitable for Fido. Some apartment buildings and residential communities do not permit residents to own pets. If the caregiver of choice lives in such a community, or lives in a setting that is not large enough for Fido, your mother should consider naming someone else to adopt Fido after her death.

Once she has settled on a caregiver, your mother should think about the types of care she wants Fido to receive after she is gone. For example, does she want Fido groomed once a month or to have his teeth cleaned three times a year? Does she want Fido to be fed certain types of food? Does Fido suffer from any ailments that require medication or close monitoring? If so, these things should be addressed in the pet trust. If your mother has been using the same groomer and vet for years, she may want the caregiver to continue using the same providers. This is particularly important if Fido is receiving any specialized care or treatment. If this information is not included in the pet trust itself, your mother definitely should provide this information to the caregiver in a letter.

While the reason for including a pet trust in her will is to ensure that Fido will be cared for after she dies, it can also serve as a vehicle for providing the caregiver with instructions with respect to the handling of Fido’s remains after he dies. This information is important and useful to the caregiver who will certainly want to honor your mother’s wishes.

In addition to setting forth in the pet trust the name of the caregiver and the type of care she wants Fido to receive, both during his lifetime and upon death, your mother will need to allocate a certain amount of money to the trustee of the pet trust.

The job of the trustee is to distribute the funds in the trust to the caregiver as needed to be used for Fido’s benefit. The money will be used to pay for Fido’s food and care, but your mother can also allocate some of the money in the trust directly to the caregiver in recognition of the time, effort and responsibility he/she assumed by caring for Fido. If she wants, your mother can name the caregiver as trustee of the pet trust. She need not name two different people for these roles.

A final decision that your mother will have to make in connection with the pet trust is what happens to any of the funds left in the trust after Fido dies. Many people who have a pet trust direct that any money left in the trust after the death of their pet goes to the caregiver. Another popular arrangement is for the money to be donated to an organization that cares for abandoned and/or abused animals. Of course, your mother can also have the funds left in the pet trust divided between you and your siblings. Regardless of how she wants the funds distributed, it is important to include her wishes in the pet trust.

In light of the number of issues, your mother should discuss if she wants to create a pet trust, and the fact that it will be part of her will, with an experienced estate planning attorney. That is the best way to ensure that Fido will be cared for in accordance with her wishes.

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

By Linda Toga, Esq.

THE FACTS: After my mother’s death, my father met a woman, Mary, who was his partner for many years. They lived in my father’s house, which has a value in excess of $3 million. In his will my father left the house to Mary. He also named Mary as the beneficiary of his life insurance policy, which has a death benefit in excess of $2 million. He left his residuary estate to me and my sister. However, the will states that any estate taxes that may be owed are to come out of his residuary estate. My concern is that paying the estate taxes will likely deplete the residuary estate, leaving my sister and me with nothing.

THE QUESTION: Is there some way we can compel Mary to pay the estate tax from the funds she is receiving? It does not seem fair that we may be paying the taxes on the assets which she will be enjoying.

THE ANSWER: Since your father clearly intended for you and your sister to be beneficiaries of his estate, it appears that he may not have understood which of his assets would be considered in calculating his estate’s tax liability.

If, for example, your father and Mary were married at the time of his death, the value of the assets passing to Mary would be excluded from the value of the estate used to calculate the estate tax liability. That is because there is an unlimited marital deduction that applies when determining whether or not federal or New York state estate tax is due.

It is possible that your father believed the exclusion would apply based upon the fact that he and Mary were living together as husband and wife. Unfortunately for you and your sister, the taxing authorities do not see it that way.

Another possibility is that your father assumed that the death benefit from his life insurance policy would not be included in his gross estate for estate tax purposes. That is a common misconception that often leads to an unexpected tax liability.

Estate taxes are calculated based upon the value of all the assets owned or controlled by an individual at the time of death. Since your father could have changed the beneficiary listed on his life insurance policy up until the time of his death, he had “control” over the $2 million death benefit. For that reason, the value of the death benefit is included in his estate for purposes of calculating the estate tax owed.

It is noteworthy that some people actually buy life insurance so that the death benefit can be used to cover the estate taxes that may be assessed against their estates. By doing so, the decedent provides his beneficiaries with liquid assets that can be used to pay any estate taxes that are assessed against the estate. This, in turn, eliminates the possibility that the beneficiaries may need to sell estate assets just to pay the estate tax.

Even if your father was aware of how the estate tax would be calculated, he may not have realized that his will dictated that all of the taxes be paid from his residuary estate. If that fact had been explained to your father, he may have chosen to apportion the estate tax liability between all of the beneficiaries of his estate.

By apportioning the taxes that were due, Mary would be responsible for the taxes attributed to the value of the house, for example. That would have certainly decreased the amount of taxes being paid from the residuary estate earmarked for you and your sister.

In light of the fact that your father’s will does not provide for the apportionment of the estate, the full tax liability will be paid from the residuary estate unless Mary is willing to pay some or all of the estate tax assessed against your father’s estate. If she is not willing, there is nothing the executor of the estate can do but pay the taxes in accordance with the provisions of the will.

The amount of the estate tax due from your father’s estate will depend on when your father died since the exclusion amount on both the federal and New York state estate tax has been increasing annually for a number of years.

Since April, 2017, the exclusion amount for both federal and New York state estate tax exceeds $5.2 million. Even without apportionment, there is a chance that no estate tax will be due unless the value of your father’s estate exceeds the current exclusion amounts. If it does not, the full amount of the residuary estate will pass to you and your sister without any tax liability.

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

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