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Linda Toga

By Linda Toga

THE FACTS: My house and most of my liquid assets are held in an irrevocable trust that I funded over five years ago. I am fortunate in that my income is sufficient to for me to live comfortably without using my savings.

THE QUESTION: If I do need to move into a nursing home down the road, how will Medicaid deal with my income when it comes to determining if I am eligible for benefits?

THE ANSWER: Since Medicaid is a needs-based program, your eligibility will be based on the value of your available assets, meaning assets that are not in your trust, and your income. Even if your assets are very limited, if your income is sufficient to cover the cost of a nursing home, you will not be eligible for assistance.

However, because there are some sources of income that are exempt under the Medicaid rules, determining eligibility is more involved than simply applying the same monthly income level across the board.

Medicaid looks at all of the income you receive, at the source of that income and at your medical expenses to determine your Net Available Monthly Income or NAMI. If your monthly medical expenses equal or exceed your NAMI, Medicaid will deem you “income eligible.”

In general, Medicaid will consider income from stocks and bonds, IRAs and other qualified plans, pensions and trusts when making a determination as to whether you are eligible to receive benefits.

Medicaid will not, however, include in your NAMI income from German and Austrian reparation plans, Nazi persecution funds, state crime victims’ assistance funds, Seneca Nation Settlement Act Funds, special payments to American Indians or payments from federal volunteer programs.

Medicaid also exempts funds received from a reverse mortgage as long as you use the funds during the month you receive them.

If you are single, you will be allowed to keep all the exempt income you may receive plus an additional $50/month in nonexempt income and funds to cover the cost of your supplemental medical insurance premiums.

If you are a veteran, you get to keep $90/month plus exempt income and the cost of supplemental medical insurance. NAMI in excess of $50 (or $90 for veterans) plus the cost of insurance premiums must be paid to the nursing home.

If you are married and your spouse is well and continues to live in the community (the “community spouse”), the amount of income you may keep is the same as for an unmarried individual. However, your spouse, as the community spouse, is allowed a monthly income of close to $3,000 to help cover living expenses. If your spouse’s income is too large, Medicaid will apply a percentage of his or her excess income to the cost of your care in the nursing home.

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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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: Since my grandchildren, twin boys, were born seven years ago, I have cared for them five days a week while my daughter and son-in-law worked. My daughter is in the process of a divorce and my son-in-law will likely have shared custody. He is threatening to prohibit me from seeing the boys.

THE QUESTION: What rights do I have as a grandparent to see my grandchildren?

THE ANSWER: Since you have clearly been a big part of your grandchildren’s lives up to this point and have developed a meaningful relationship with the boys as a result of the extensive time you’ve spent caring for them, your interest in having a continued relationship with your grandchildren is protected by the New York Grandparent Visitation Statute (Domestic Relations Law §72).

The statute is designed to protect the interests of grandparents who have fostered a deep and significant relationship with their grandchildren. Unlike some similar statutes in other states, the New York statute does not require the grandparent to prove the existence of special factors in order to maintain visitation rights. In fact, some argue that the statute is too “grandparent friendly” and that it unfairly infringes upon the rights of fit and loving parents to make important child-rearing decisions.

HOW IT WORKS: When fairness dictates continued access by a grandparent to a grandchild, a grandparent who is denied access to that grandchild may petition the court for visitation rights. Notice of the petition must be given to the parent(s) or guardian(s) of the minor child who is advised of the date on which the court will conduct a hearing to determine if the grandparent’s request will be granted.

The court engages a two-prong test when deciding a grandparent visitation case. The first question the court must answer is whether the grandparent has “standing” to seek visitation. In other words, the court must determine if the grandparent has developed a relationship with the grandchild that deserves protection.

There are many factors considered by the court including the quantity and quality of time the grandparent has spent with the grandchild. A grandparent who has not played a significant role in the life of her grandchild and who has had very little contact with her grandchild will likely be found to not have standing. If that case, the petition will be dismissed.

Based upon the facts you’ve provided, it is likely that the court would find that you have standing. Once standing is found, the court will conduct a hearing to determine if grandparent visitation is in the best interest of the grandchild.

Based on testimony from the grandparent, the parent and either the grandchild or an attorney appointed by the court to represent the grandchild’s interests, the court must decide if denying grandparent visitation will adversely impact the grandchild. It is helpful to the grandparent’s position if there are other people with personal knowledge of the relationship between the grandparent and the grandchild who are willing to testify in support of visitation.

Of course, the parent or guardian can also arrange for people to testify in opposition to visitation. If the court is convinced that the grandchild will suffer if the grandparent is denied visitation rights, the court likely will grant the grandparent’s petition stating that visitation is in the best interest of the grandchild. A visitation schedule may be ordered if the parties cannot agree to a schedule on their own. If the determination of the court is that visitation with the grandparent is not in the child’s best interest, the petition will be denied.

Although courts are generally reluctant to interfere in a parent’s fundamental right to make decisions concerning the care and custody of their child, New York courts are not required to give deference to a parent’s decision about grandparent visitation. In other words, under the New York statute, there is no presumption that decisions made by a fit parent are, in fact, in their child’s best interest.

When the grandparent-grandchild relationship is particularly strong and when the grandchild is clearly dependent on the grandparent, the court may grant visitation against the parent’s wishes even when the parent is deemed fit. Although parents’ rights groups claim that the statute is unconstitutional because there is no presumption in favor of the parent, to date New York courts have upheld the statute.

Before seeking court intervention, grandparents who are denied access to their grandchild should try to reach an agreement concerning visitation with the parent or guardian of the grandchild. Litigation introduces uncertainty to the situation and comes with a considerable emotional and financial cost to the parties. In addition, the potential harm to the grandchild as a result of being put it the middle of a dispute between his parent and his grandparent may be significant. If an agreement cannot be reached, it is best to seek the counsel of an attorney with experience in this area of the law.

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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By Linda Toga

Linda Toga, Esq.

THE FACTS: My friend Joe, a New York State resident, was never married, but he and his on-again off-again girlfriend had a son together. The child was 14 months old when Joe died without a will. Before his death, Joe spent most of his free time with his son who lives with the girlfriend in New York. My friend’s parents live in Ohio and did not know about the girlfriend, much less the baby. They were shocked to learn that a baby they did not even know existed was the sole heir to Joe’s estate. They are now insisting on a DNA test.

THE QUESTION: Can Joe’s parents insist that a DNA test be done to prove paternity?

THE ANSWER: Whether or not a DNA test is appropriate will depend on what steps Joe may have taken to establish paternity. If, for example, Joe signed a paternity acknowledgment, the Surrogate’s Court will not order a genetic marker test or DNA test.

Under Public Health Law 4135-B, the father of a child can establish paternity by signing a paternity acknowledgment immediately before or after an in-hospital birth of a child to an unmarried woman. The acknowledgment must be signed by both parents and witnessed by two people who are not related to either parent. The acknowledgment must be filed with the registrar along with the child’s birth certificate.

If neither parent rescinds the acknowledgment within 60 days of signing it, the acknowledgment is deemed conclusive evidence of paternity. While challenges to a paternity acknowledgment based upon fraud or duress can be brought, the burden of proof is very high.

Another way the paternity of a child born out of wedlock can be established is through an Order of Filiation. A proceeding to establish paternity may be brought in Family Court by the mother of the child, a person claiming to be the father, the child or the child’s guardian. Assuming adequate proof is submitted to the court, an order will be issued setting forth the relationship between the father and the child. Just as there is a 60-day period during which the paternity acknowledgment can be rescinded, the court has 60 days in which to vacate an Order of Filiation before it is deemed conclusive evidence of paternity.

If, during Joe’s lifetime, an order of filiation was issued stating that the girlfriend’s son was Joe’s child, Joe’s parents cannot demand a genetic marker or DNA test. If there is no paternity acknowledgment or Order of Filiation, Joe’s parents can insist that proof be presented establishing that Joe is the child’s father. In that case, genetic marker and/or DNA testing would certainly be appropriate.

Other evidence may include proof that Joe was providing child support or that he publicly held himself out as the child’s father. If paternity cannot be established, Joe’s parents are in line to inherit his estate. Such an unfortunate outcome could have easily been avoided if Joe discussed his situation with an experienced estate planning attorney and had a will prepared that expressed his desire to leave his assets to his son.

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.

Linda Toga, Esq.

THE FACTS: My mother’s will provides that her house will be sold and the proceeds divided equally between me and my brother. However, because she was concerned about needing long-term care, a few years ago she signed a deed transferring the house to my brother and retaining a life estate in her favor.

THE QUESTION: Am I likely to see any of the proceeds when the house is sold?

THE ANSWER: Unfortunately, if your mother has already passed away, it is unlikely that you will get anything when the house is sold unless your brother is willing to essentially gift you one-half of the proceeds. That is because a will only controls the distribution of assets that are owned by the decedent at the time of her death.

Here, your mother does not have an ownership interest in the house but simply a right to live in the house until her death. When she dies, that right dies with her. As such, the provision in the will pertaining to the division of the proceeds from the sale of the house will be ignored.

If you mother is still alive, competent and sorry that she transferred the house to your brother, she can remedy the situation in a number of ways. She can, of course, revise her will so that you receive a larger portion than your brother of other assets that may be passing under her will. She can also change the beneficiary on her nonprobate assets like IRAs, 401(k)s and/or life insurance. Neither of these strategies require your brother’s cooperation, but they will only work if your mother has assets worth about one-half of the value of the house.

If your brother is cooperative, your mother’ assets are limited and she is not already receiving needs-based government benefits, your mother and brother can sign a new deed either adding you as a co-owner or transferring the house back to your mother. The will would then control. This solution will require the preparation of a new deed and transfer of documents and the filing/recording of the deed but will not require your mother to change her beneficiary forms or her will.

If transferring the house again will put your mother’s benefits at risk, she and your brother can sign a written agreement in which (1) your mother states that it was not her intent in transferring the house to “gift” it to your brother and (2) your brother states that when he sells the house, he will split the net proceeds 50/50 with you.

If the agreement provides that you are an intended beneficiary of the agreement between your mother and your brother, and specifically states that it is binding upon the heirs, successors, assigns and executors of the parties signing the agreement, you will have an enforceable legal right to one-half of the proceeds.

It is important that any agreement that may be signed by your mother and brother pertaining to the house include the “heirs, successors, assigns and executors” language since, without that language, the agreement, like your mother’s life estate, will die with your mother.

Because there are so many issues to consider when deciding if and how to insure that you receive a share of the proceeds from the sale of her house, your mother should discuss this matter with an experienced estate planning attorney. The attorney can explain the pros and cons of each option that may be available to your mother so that she can make an informed decision. Only then can she be sure that her actions will not adversely impact her down the road and that her wishes will be honored.

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.

Wills kept in a safe deposit box are not obtainable to an executor without a court order.

By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I am trying to help my elderly parents organize their affairs. They want things to be as simple as possible for me when it comes time to handle their estates. My parents have wills and other advanced directives in place.

THE QUESTIONS: Other than their wills, are there other documents or any types of information that they should collect and organize now to make the administration of their estates easier?

THE ANSWER: You are lucky to have parents who seem to appreciate the fact that administering an estate is not necessarily easy and who are anxious to have everything in place. Having wills will certainly help you with respect to distributing your parents’ assets after they pass. However, distributing assets is often one of the last things that an executor must do.

Long before distributions are made it will be necessary to make funeral arrangements, contact life insurance carriers and banking and investment institutions, gain access to your parents’ safe deposit box, cancel credit card accounts, as well as all online accounts that your parents may have and locate documents relating to any real estate they may own or lease, to name a few.

While many of these things can be done before your parents’ wills are admitted to probate, you will not be able to marshal assets, close bank accounts or sell property until you are issued letters testamentary by the Surrogate’s Court. If your parents keep their wills in a safe deposit box, you will not be able to even get the will without a court order.

Although not exhaustive, the following is a list of the types of documents and some of the information that your parents may want to put together to facilitate your handling of their estates:

1. Deeds to burial plots

2. Documents relating to any preplanned or prepaid funeral arrangements, including military discharge papers if either parent was in the armed forces and wishes to be buried in a military cemetery or have an honor guard

3. Wills and any codicils to the wills and a list of the addresses of all of the people named in the will and/or codicil.

4. Trust instruments that name your parents as grantors, trustees and/or beneficiaries

5. Life insurance policies, including the beneficiary designation forms

6. Annuities

7. Bank statements and pins for use in ATMs

8. A list of bills that are automatically paid from their bank accounts or charged to their credit card accounts

9. Brokerage statements

10. Statements relating to IRAs, 401(k)s or any similar plans, including the beneficiary designation forms

11. Documents relating to pensions and/or deferred compensation plans

12. Deeds, leases and documents relating to time share properties

13. Loan documents, including mortgages, reverse mortgages, home equity lines, lines of credit (whether your parents are the lenders or the borrowers)

14. Credit card statements

15. Keys to safe deposit boxes and the combination to any safe they may use

16. Pins, security codes and passwords for online accounts, social media accounts and email accounts

17. Account numbers and log-ins for frequent flyer and other rewards programs

18. The names and contact information for their financial advisor, brokerage account manager, insurance agent, accountant and attorney

If your parents are able to gather these documents and provide the information set forth above, handling their estates once they pass should not be overly burdensome. The burden can be further reduced by retaining an attorney with experience in the areas of probate and estate administration. Doing so will ensure that the process goes smoothly and will give you the opportunity to deal with your loss without having to think about what needs to be done.

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

By Linda Toga

THE FACTS: My father died recently. He had a will in which he named my brother as executor. My brother and I have not spoken to each other in a number of years. I am concerned that he will close out my father’s accounts and sell his house and keep all the money even though I am named as a half beneficiary under the will. He seems to be under the impression that since he is the named executor, he can do these things simply by presenting the will.

QUESTION: Is that true?

THE ANSWER: Absolutely not! Although your brother is named in your father’s will as the executor of his estate, the surrogate’s court in the county in which your father resided at the time of his death must admit the will to probate and issue letters testamentary to your brother before he can take any action with respect to your father’s assets.

In other words, he must establish to the court’s satisfaction that the will is valid before he is able to act as executor. He cannot assume the responsibilities of executor without the court’s explicit approval. The complexity, cost and time involved in having a will admitted to probate will vary with the number of beneficiaries named in the will, as well as the number of heirs to the estate, the ease with which the attorney assisting the named executor can locate the beneficiaries and heirs, how cooperative those people may be with the attorney in moving forward, the value of the estate and whether anyone contests the admission of the will to probate, among other factors.

While the probate process can be straightforward and relatively inexpensive, there are numerous issues that can arise in the probate process that are best handled by an experienced estate attorney. Some of the most common issues with probate are not being able to locate individuals who are entitled to notice and dealing with individuals who contest the validity of the will. Fortunately, the percentage of cases where a will is contested and ultimately not admitted to probate is small. However, if there are objections filed to the probate of a will, the probate process can drag on for quite some time, significantly increasing the expenses of the estate.

If you and your brother are the only beneficiaries named in the will and your father’s only children, and you do not have a basis for contesting the will, the probate process should be relatively straightforward. Once the court issues letters testamentary to your brother, he can sell the house and close your father’s bank accounts. However, he cannot simply keep the money for himself since he has a legal obligation to carry out the wishes set forth in your father’s will.

In your case, he would be required to distribute to you assets valued at half of the value of the estate after accounting for your father’s legitimate debts, funeral and estate administration expenses, commissions and estate taxes. If you suspect that he has not done so, you should demand that he account for all of the estate assets so you can see the value of the marshaled assets and the expenses incurred by the estate. If you are not satisfied with the accounting he provides, or have reason to believe that he breached his fiduciary duty to you as a beneficiary, you can ask that his letters testamentary be revoked.

Since this process can get quite involved, if it comes to that, you should seek the advice of an attorney with expertise in the areas of estate administration and litigation.

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

By Linda Toga

THE FACTS: I have three young children and want to be sure that they will be taken care of in the event my husband and I die before they are adults. I understand that I can appoint guardians for my children in my will but I am having a great deal of difficulty deciding who to name.

THE QUESTION: Do you have any suggestions as to the things I should consider when naming guardians for my minor children?

THE ANSWER: It is not surprising that you are having difficulty deciding who would best stand in your shoes in the event you and your spouse die before your children are adults. As an experienced estate planning attorney and the mother of two wonderful children, I know that the decision with which you are struggling is the most difficult estate planning decision faced by most parents. It is hard to think about not being there for your children and even harder to picture someone else taking your place.

However, if both you and your spouse die while your children are minors, the appointment in your will of a guardian for your children will likely prove to be the most important appointment you make. It is one that requires a great deal of thought and soul searching. Although people have different priorities when it comes to how their children will be raised, every parent wants their children to be loved, to be safe and to be able to reach their potential. Whether these goals will be achieved undoubtedly depends in large part upon the parenting skills of the children’s parents and guardians.

When considering who you would like to step into a parental role with your children, you should give thought to the following:

• Is the person married or single? If married, do you want to name both spouses as co-guardians? What happens in the event of death or divorce?

• Does the person have children? Do you approve of the person’s parenting skills as applied to his own children?

• Is the person’s house/apartment large enough to accommodate your children? If not, is the person willing to relocate?

• Is the person’s lifestyle “child friendly,” i.e., does he travel extensively or for long periods of time or work irregular hours, and if so, who will be there in his absence to care for your children?

• How old is the person and how is the person’s health?

• Is the person financially stable and can the person afford to include your children in his life?

• Does the person share your values, i.e., does the person place the same importance on education, religion, community etc. that you do?

• Does the person get along well with your children and your extended family?

• Would placement with the person require your children to move from your current community and possibly away from other family members?

While this list is not exhaustive, it gives you a good starting point for considering who to name as guardian of your children. Many people choose family members as guardians. However, the fact that someone is related by blood does not necessarily mean that that person will be able to raise your children as you would. Your parents may be very loving but are they physically able to take on the challenge of young children?

Your siblings may share some of your values; but, perhaps they are less focused on education than you are, or are reckless with money. Your experiences growing up and your family dynamics will certainly influence your thinking when it comes to naming a guardian. It is absolutely critical to talk to the person you plan on naming as guardian so that you can discuss your concerns and your wishes and confirm that the person is willing to take on the huge responsibility that comes with being a guardian.

Ask the person how he would handle certain situations that may arise, how he feels about issues that are important to you and about how having to care for your children will impact his life. Make sure the potential guardian understands what is involved in being named guardian of your children and urge him to be honest and candid when responding to your questions.

If you decide that you have the perfect person to serve as guardian but are concerned about the adverse financial consequences of that person raising three more children, you can make arrangements in your will to provide the guardian with financial support. Similarly, if a potential guardian meets your criteria but lives in a small apartment, in your will you can include provisions that would allow the guardian to move into your home to care for your children or you can provide other appropriate housing. In your will you can also state your wishes with respect to how your children will be raised.

You can instruct your guardian to seek input from your family before making important decisions about your children’s futures and you can set forth the values that you would most like to see instilled in them. As if choosing a guardian is not difficult enough, in your will you should name both a guardian and a successor guardian. If something should happen to the named guardian, it is better if you, as opposed to the courts, name the person that will continue caring for your children. This is one of the things that is simply too important to leave to chance.

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

By Linda Toga

THE FACTS: As part of their Medicaid planning, over 10 years ago my parents transferred their house to my brother Joe. They did not put my name on the deed because I had filed for bankruptcy. However, the understanding was that at some point after their deaths, Joe would sell the house and give me half of the net proceeds. My parents died two years ago without ever applying for Medicaid. Joe did not try to sell the house because he said the housing market was soft. Instead, he rented the house to a friend. Unfortunately, Joe and I did not have a good relationship, and he recently died without having sold the house. His will provides that his entire estate, including the house, passes to his wife and son.

THE QUESTION: Can I contest Joe’s will to get my share of the proceeds from the eventual sale of my parents’ house?

THE ANSWER: The short answer to your question is “No.” You cannot contest the probate of Joe’s will because you lack standing. The only people in a position to contest a will are those people in line to inherit under the intestacy statute. In other words, only those people who would inherit if there was no will have standing to contest the probate of a will. Under the intestacy statute, spouses, children and parents of the decedent have priority over siblings. Since Joe was married at the time of his death and had a child, they would inherit his entire estate even if he died without a will. Since you are not in line to inherit, you cannot contest Joe’s will.

However, you may be able to approach this from a different perspective. If you have evidence that your parents’ intent was that you receive a share of the proceeds from the sale of their house, and that they transferred it to Joe alone because of your bankruptcy, you may be able to claim an interest in the house under the theory of a constructive trust. You would not be contesting the probate of Joe’s will but, instead, trying to show that the transfer of the house to Joe was not an outright gift.

If you can show that your parents transferred the house to Joe with the expectation that he hold an interest in the house in trust for your benefit in the future, you may be able to recover from Joe’s estate the value of your share of the house.

If your parent’s plan was that the house be sold after their deaths and the proceeds split between you and Joe, they should have transferred the house into an irrevocable trust, rather than outright to Joe. Such a trust would have addressed your parents’ concerns about Medicaid without creating the problem you now face. Language could have been included in the trust to address your bankruptcy and protect your share of the proceeds from your creditors. An experienced estate planning attorney could have easily insured that your parents’ wishes were honored and that both you and Joe benefited from the sale of their house.

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