Authors Posts by Linda Toga, P.C.

Linda Toga, P.C.

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By Linda Toga, Esq.

Linda Toga, Esq.

With the COVID-19 pandemic on everyone’s mind, many people who have not engaged in estate planning have contacted me about how best to proceed with the development of an estate plan. 

It seems that the fear of the virus has made people understand the need for estate planning. However, even if you have a will or a trust, a power of attorney and/or a healthcare proxy, now is a good time to review your documents to confirm that they still express your wishes and meet your needs. Advanced planning is not something you think about once and forget. Successful planning requires that you periodically review and possibly revise your documents to reflect changes in your life circumstances. 

Some things to think about are:

Your beneficiaries: Have any of the beneficiaries named in your will or trust passed away? If so, you may want to name some new beneficiaries to share in your estate. Even if a beneficiary is still living, you should ask yourself if that person is still someone to whom you wish to leave a bequest. Relationships change over time. Are there new people in your life who are important to you? Are there beneficiaries named in your documents with whom you now have little or no contact, perhaps as the result of a divorce or relocation? Did you name a charity that no longer exists as a beneficiary? Are any of the beneficiaries now disabled? If you answered “yes” to any of these questions, you should consider making changes to your will or trust. 

The bequests: If you financial situation has changed since you created your estate plan and you can now make more generous bequests, you may want to revisit the size of bequests made to certain individuals. The converse is also true. If your estate is likely to be significantly smaller, perhaps you want to limit the bequests you are making either by removing some beneficiaries or decreasing the amount or percent of your estate going to each beneficiary. 

Your fiduciaries: The word fiduciaries refers to the people you have named as executor, trustee, agent and/or guardian in your estate planning documents. If any of the people you named as a fiduciary have passed, you should name a successor. If you named a sibling as an executor because your children were minor and now they are responsible adults, perhaps you want to name one of more of your children as the executor(s) of your estate.

Many clients revise their estate plans and name their children as agents on their powers of attorney or healthcare proxies when their children are older, more responsible and in a better position to make important decisions. This may be something you want to consider. If you named guardians to care for your children in the event you die when the children are still minors, it is very important to revisit this appointment. Perhaps your children have attained the age of majority and no longer need a guardian in which case the provision naming a guardian can be deleted. 

If a guardian may still be needed, you should consider the relationship the named guardian has with your children. Perhaps the person you named no longer has a good relationship with your children, or they have moved out of state and could only serve if your children are relocated. Has the guardian’s financial situation or living arrangements changed to the point that taking in and caring for your children will be overly burdensome? Since the guardian you name may be raising your children, all of these issues deserve serious thought. 

Although there are many issues to consider when reviewing your estate plan, the points mentioned above can provide a good starting point. Retaining an experienced estate planning attorney to review your documents with you and to discuss any changes you may want made will ensure that your estate plan will once again reflect your wishes. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. Call 631-444-5605 or email Ms. Toga at [email protected] to schedule a consultation. 

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My father died in September, 2018. This April I received a check from the United States Treasury payable to my father in the amount of $1,200. The check reflects the Economic Impact Payment or stimulus check authorized for many citizens as part of the Coronavirus Aid Relief and Economic Security or CARES Act. My family could really use the money since I lost my job when the business I worked for closed in March but, I’m not sure if I should I cash the check.

THE QUESTION: Are deceased individuals or their families entitled to Economic Impact Payments?

THE ANSWER: There has been a great deal of confusion concerning stimulus checks that were sent to deceased individuals. I have received quite a few calls from clients asking whether they can cash checks sent to individuals who died recently, as well as individuals that died well before your father. 

Adding to the confusion is the fact that some of the checks in question include the notation “DECD”, short for deceased, on the payee line. This certainly suggests that the Treasury knowingly sent checks to deceased individuals and has lead a number of people to conclude that the checks can be cashed. Other callers have suggested that since their loved one either died from the coronavirus or suffered financially from the virus before passing that their estate should be entitled to the stimulus funds. Unfortunately for the families of the deceased check recipients, the government does not see it that way. 

On May 6, more than a month after checks were first mailed out, the IRS tried to clarify the situation by stating on its website that funds that were sent to deceased individuals should be returned. They provided instructions for how that should be done. 

However, rather than bringing clarity to the issue, the posting on the website added to the confusion. That’s because the posting states that if the payee died “before receipt of the payment,” the payment should be returned. If all payments were made by checks that were mailed to the recipients and delivery times throughout the country were the same, the IRS post may settle the question. 

However, since the time it takes for mail to be delivered to different places varies, and since some people received checks through the mail while others had the funds deposited directly into their bank accounts, a rule that relies on receipt of the payment rather than the date the payment was authorized inevitably favors those people with slow mail service. 

For example, if Mr. Smith’s check is mailed on April 11 and received on April 14 and Mr. Cooper’s account is credited on April 11, and both men die on April 12, the IRS post suggests that Mr. Smith’s estate can keep the money but, Mr. Cooper’s estate is expected to return the funds. It seems unlikely that the Congress intended the CARES Act to discriminate against people with direct deposit but, absent further clarification from the IRS, they will suffer that unintended consequence. 

Although it is clear that the Treasury expects checks payable to deceased individuals to be returned, some people point out that it may be premature to return funds to the IRS at this time. That is because Congress is debating additional relief packages that may provide that the families of deceased recipients of stimulus checks are entitled to retain the funds. 

Even if the family of an individual who died years ago and was not impacted by the coronavirus may not be entitled to a keep the stimulus check, provisions may be made to help the families of those who died from or suffered financially from the pandemic. There is precedence for such relief since the government did not require that funds payable to deceased individuals through the Economic Stimulus Act of 2008 be returned. Then, as now, the goal of the stimulus checks was to stimulate spending and specifically to boost consumer spending.

At this time, it may be prudent to take a wait and see approach, especially with respect to checks that were sent to individuals who died recently. That is especially true since it is unclear how the government will get back the stimulus money that was given to deceased individuals. Collection efforts by the treasury cannot be started until death records are compared with the list of payees and the list of estates that already returned checks. That will take time. 

In addition, Congress may yet decide that the funds need not be returned. Considering the confusion surrounding the initial issuance of the stimulus checks, the prospect of getting a returned check reissued in the event Congress authorizes payments to deceased individuals is poor. That being said, once the question of eligibility is conclusively resolved, stimulus checks that were sent to deceased individuals who are found to be ineligible to receive the funds will have to be returned. 

As far as the check sent to your father is concerned, I would be surprised if Congress decided that your father or his estate is eligible for stimulus funds relating to the pandemic. However, I recommend that you monitor the situation closely so that you can make an informed decision as to whether you need to return the check. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected] She will respond to messages and emails as quickly as possible. 

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Linda Toga, Esq.

THE FACTS: My father recently died at the age of 98. I am 78 and not well. My oldest brother is the executor of my father’s estate. In his will, my father directs his executor to distribute this estate in equal shares to me and my siblings. My brother strongly dislikes my wife and has made it clear that if I pass away before my father’s estate is settled, that he has no intention of distributing my share of the estate to my wife.

THE QUESTION: Can my brother legally withhold my share of my father’s estate from my wife?

THE ANSWER: As executor, your brother is legally bound to honor your father’s wishes whether he likes it or not. Regardless of whether you are alive at the time of distribution or not, your brother cannot change the terms of the will. 

If you had died before your father, how your share of his estate was to be distributed would have depended on the language in your father’s will. For example, if your father’s will said his estate was to be divided equally amongst his children, per stirpes, and you predeceased your father, your share of his estate would pass to your children, not your wife. If your father’s will stated that his estate was to be divided equally between his then living children, your share would be distributed, pro rata, to your siblings who were alive when your father died. However, since you were clearly alive when your father died, you have a vested interest in your share of his estate. 

If you are still alive when your father’s estate is settled, you are obviously entitled to receive your share of his estate outright. You can then do with your inheritance whatever you wish. If you pass before your father’s estate is settled, your share of his estate will pass to your estate. 

Once an executor or administrator is appointed by the court to handle your estate, that person will have the authority to distribute your inheritance in accordance with the provisions of your will. If you do not have a will, the intestacy statute will dictate how your estate will be distributed. 

If your wish is to have your estate, including the inheritance from your father, pass entirely to your wife, you should retain an experienced estate planning attorney to prepare a will that reflect your wishes. This is particularly important if you have children since, without a will, the intestacy statute would require that your children receive a share of your estate. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected] She will respond to messages and emails as quickly as possible. 

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Linda Toga, Esq.

By Linda Toga, Esq.

THE FACTS: For months now I have been meaning to schedule an appointment with an estate planning attorney to discuss my wishes with respect to a will, healthcare proxy and power of attorney. I have a lot of questions and really need some guidance as to what I should do and how I can best ensure that my wishes will be honored. Since the onset of the coronavirus crisis, I have been losing sleep over the fact that I do not have an estate plan in place. 

THE QUESTION: Now that law offices are closed and social distancing is a reality, is there anything I can do to move my estate planning process along? 

THE ANSWER: While estate planning is extremely important, at this point in time it is more important that you do your part to avoid the spread of the virus. I urge you to stay at home to the extent possible and, if you do leave the house, to be sure to wipe down frequently used surfaces, wash your hands often and follow the guidelines set by the government for social distancing. 

That being said, while you are at home, you can certainly give some thought to your estate plan and gather the information that will be needed in order for your estate planning documents to be prepared. Although I am not in my office on a regular basis, I am continuing to work with both current and new clients by phone and email. 

While personal contact may not be an option at this time, a great deal can be accomplished remotely and I welcome the opportunity to discuss with you your concerns and wishes. Also, it should be noted that the legislators in Albany and the New York State Bar Association are considering changes to the law that would allow for remote execution and witnessing of estate planning documents during this crisis. 

In the meantime, you should give some thought to who you want to name as your agent or agents in your advanced directives such as your power of attorney and healthcare proxy. It is a good idea to ask the people you are thinking of naming as your agents whether they are comfortable with acting in that capacity. Some people may not want to or may not feel they are capable of taking on the responsibility of handling your affairs or making end of life decisions on your behalf. 

While it is important for any agent that you name to know what your wishes are, it is absolutely critical that the person you name as your healthcare proxy be fully aware of the circumstances, if any, under which you may want certain types of treatments and/or procedures to be withheld.

Once you’ve decided on who you want to name as your agents and have discussed with those people your wishes, you should be sure you have the information such as the agents’ phone numbers and addresses that will be needed to prepare your advanced directives. 

In terms of your will, you should give some thought to what assets you have and what assets will pass under your will. Only assets owned by you individually as opposed to assets that are owned jointly, held in trust or subject to a beneficiary designation form will pass pursuant to your will. These assets are called probate assets. 

Once you have a handle on what assets are probate assets and what assets will pass outside your will, you can think about who the beneficiaries of your estate will be and if and how you want the assets divided. You should consider what will happen if a beneficiary predeceases you and whether you want assets to be distributed upon your death or held in trust for future distribution. In addition to how your probate assets will be distributed, think about who will handle your estate. At a minimum, you need to name an executor and a successor executor.

Although making decisions about who will serve as your agents and executor, what your wishes are with respect to end of life care and how your assets will be distributed may seem overwhelming, as I mentioned before, I am available by phone and via email to discuss with you the estate planning process and your unique circumstances. 

Once we have developed a plan, I will send you drafts of your estate planning documents for review. Hopefully by then a procedure will have been worked out for the remote execution and witnessing of your estate planning documents. If not, at least you will be ready to execute your documents in the presence of witnesses as soon as the restrictions that are currently in place are lifted.

In the meantime, I hope that the coronavirus crisis does not cause you or your loved ones undue stress or inconvenience and that you stay well. I look forward to hearing from you. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected] She will respond to messages and emails as quickly as possible. 

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By Linda Toga, Esq.

Linda Toga

THE FACTS: Just before my husband died we adopted a puppy we named Morris. Morris is a great source of comfort and joy and I cannot imagine being without him. My concern is that something may happen to me that makes it difficult or impossible for me to care for Morris. Although my children live close by, I cannot depend on them to care for Morris because of allergies and their living arrangements. My friends told me that I should include a pet trust in my will so that Morris’s needs will be met but, I understand that the provisions in my will will have no bearing on Morris’ care until I die and my will is admitted to probate.

THE QUESTION: What can I do to make sure Morris will be cared for in the event I am disabled or simply cannot take care of him any longer? 

THE ANSWER: To insure that Morris is cared for despite your inability to take care of him yourself, you should create an intervivos pet trust. An intervivos pet trust becomes effective as soon as it is executed and funded in contrast to a pet trust that is included in your will. The latter will not address Morris’s needs during your lifetime. 

In the pet trust you need to name the pet or pets that you want to benefit from the terms of the trust. If Morris is your only pet and you do not have plans to get another pet, you can name Morris as the sole beneficiary of the trust. People who have more than one pet or who expect to have other pets during their lifetime may want to identify the beneficiaries of the trust as “any and all pets” they may have at the time the provisions of the trust are triggered. Generally, the terms of a pet trust are triggered when the pet owner’s health deteriorates to the point that the caregiver must assume responsibility for the pet’s care. Triggering events may include your illness, disability (either permanent or temporary) and your death.  

In addition to naming the pets who are to benefit from the provisions of the trust and the events that will result in Morris’s care being taken over by the caregiver, you need to name the person or persons who will be Morris’ caregiver. Be sure to name a successor caregiver in case the caregiver you name is unable to deal with Morris when the need arises. Before naming a caregiver, you should ask each potential caregiver if she is willing to take on the responsibility of caring for Morris. It is important to discuss with all potential caregivers whether their living arrangements can accommodate your pet, whether they or the people they live with have any health issues that may be adversely impacted by the presence of your pet and whether caring for Morris will be an undue burden, financially or otherwise. 

You should plan on funding the pet trust with enough money to cover Morris’s anticipated expenses for the rest of his life. Doing so will alleviate any financial burden on the caregiver However, money will not necessarily alleviate the burden created by the time and effort needed to feed and walk Morris and to get to him the vet and/or groomer as needed. Make sure the caregiver you chose understands exactly what is involved in caring for Morris. You should not assume that everyone will be willing and/or able to give Morris the care and attention he has grown accustomed to. 

Your pet trust should address what will be done in the event you are temporarily unable to care for Morris, as well as what will be done if your health deteriorates to the point that you can no longer care for him at all. Obviously, the trust should also provide guidance as to Morris’s care after your death and your wishes with respect to Morris’s burial or cremation. 

In the trust you should set forth any special needs that Morris may have in terms of diet, grooming or medication. You should also provide the names and contact information for the people who have been treating and grooming Morris. If you want Morris to be groomed monthly, state that in the trust. If you want Morris to be fed a special diet, state as much in the trust. The more information you can provide the caregiver, the more likely it is that Morris will be taken care of in accordance with your wishes. 

With respect to how much money to put into the trust for Morris’s care, you need to consider his age and current physical condition, as well as what you have historically paid for his care. Although you don’t want to set aside too much money, the trust should be funded with sufficient assets to cover routine expenses as well as expenses that will arise when Morris dies. You can indicate in the trust what will happen to the funds that may remain in the trust once Morris is gone. Many people have those assets pass to the caregiver in recognition of their service but, some people opt to have the funds pass to a charity that provides services to abandoned pets. 

There are clearly a lot that goes into the creation of a pet trust for a beloved pet like Morris. It is, therefore, important to seek the expertise of an attorney with experience in creating pet trusts since they are in the best position to insure that all of the important issues that should be addressed in the trust are, in fact, addressed. 

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 Tom recently passed away. I am the administrator of his estate. Tom had no children and was not married at the time of his death, but he was living with Sue. They had been living together for over 10 years. 

About a month after Tom’s funeral, Sue told me that she and Tom had been seeing a fertility specialist with hopes of having a child together. Even though Tom had died, Sue still wanted to have his child and she advised me that she planned on using Tom’s frozen sperm to that end. She also claimed that the child that was born using Tom’s sperm would be entitled to a share of Tom’s estate, even though Sue and Tom were not married. 

THE QUESTION: Is Sue correct? Is a child who is conceived and born after the death of a biological parent entitled to a share of the estate of a parent he/she never knew?

THE ANSWER: Without any additional information, my answer to your questions is, “It depends.” Under the New York Estates, Powers & Trusts Law (EPTL), a child who is conceived and born after the death of its genetic parent (the person who provides the sperm or ova used to conceive the child) is, in fact, considered an heir of the deceased genetic parent provided certain steps were taken both prior to and immediately following the death of that genetic parent. 

EPTL Section 4-1.3 is quite explicit as to the requirements that must be met for a posthumously conceived child to be entitled to a share of the deceased genetic parent’s estate. Because of the complexity of the issues surrounding this situation, courts are inclined to interpret the law very strictly.

In order to be deemed the legitimate heir of the deceased genetic parent, at least seven years prior to his/her death, the deceased genetic parent must have expressly consented in writing to the use of his/her genetic material for the posthumous conception of a child. The deceased genetic parent must not only give consent for the use of his/her genetic material, but he/she must also name the person who has the authority to use the material. 

Within seven months of the issuance of letters testamentary or letters of administration, the authorized person must give written notice to the estate representative and to other beneficiaries of the estate that he/she has the authority to use the decedent’s genetic material for the purpose of conceiving a child. The timing of this notice is different if the court has not been petitioned for letters. In addition to giving the estate representative and beneficiaries notice of the authority to use the genetic material, the authorized person must also file with the surrogate’s court the written statement that was signed by the deceased genetic parent in which authority to use the genetic material was granted. 

The genetic material must be used by the authorized person and the genetic child must be in utero no later than 24 months or born no later than 33 months after the genetic parent’s death. If the initial writing of the genetic parent giving consent to the use of his/her genetic material and authorizing an agent does not meet the statutory requirements, or if the notice of requirements and deadlines set forth in the statute are not met, the court will likely deny the genetic child a share of the deceased genetic parent’s estate. 

There is clearly a lot at stake here for people who do not have children but, are hoping to have them in the future. There is also a lot at stake for the potential genetic child and for the other heirs of a deceased genetic parent’s estate. 

In the situation you described, if Tom had, in fact, signed the requisite consent and authorization and Sue meets the statutory deadlines, the child that she has using Tom’s genetic material will be the sole beneficiary of Tom’s estate. Because so much hangs in the balance for all concerned, it is critical that anyone considering the possibility of having a posthumously conceived child and anyone who is handling the estate where such a child was born to seek the advice of an estate planning attorney. 

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 husband Joe and I own our house jointly. In addition to our joint checking account, Joe has a savings account with a balance of about $100,000. Joe suffers from advanced dementia and his health is failing. I do not know how much longer he will be able to live at home with me. I anticipate needing to apply for Medicaid down the road. I understand that Joe is more likely to be eligible for Medicaid if his assets are transferred to me. 

THE QUESTION: As his spouse, can I simply transfer Joe’s assets into my name?

THE ANSWER: Unfortunately, you do not have the authority to transfer Joe’s assets to yourself unless Joe has a power of attorney in which he names you as his agent and gives you authority to make gifts to yourself. Without the benefit of a power of attorney that includes a statutory gifts rider, you have no more authority to transfer Joe’s assets to yourself than a stranger would have.

Even though you and Joe own your home jointly, both you and Joe would need to sign a deed to transfer the property to you alone. If Joe’s dementia is advanced, there is a chance that he lacks the capacity to sign a deed. To find out if that is the case, you and Joe should talk to an experienced estate planning attorney. After speaking to Joe, the attorney should be able to tell you whether Joe has the requisite capacity to sign a deed. 

If the determination is that Joe lacks capacity, the only other option you have to transfer the property is to be appointed as Joe’s guardian in the context of a costly and time-consuming guardianship proceeding. 

Just as Joe’s interest in your house cannot be transferred to you without Joe taking action, the funds in his savings account cannot be removed without Joe’s active participation. Unless you are Joe’s agent pursuant to a valid, enforceable power of attorney or his legal guardian, Joe’s signature will be needed to close the account.

Fortunately, that is not the case when it comes to your joint account. You need not be Joe’s agent or his guardian to transfer the funds in the joint bank account to yourself. That is because joint account holders each have an ownership interest in the funds in a joint account. As such, any joint owner can either close that account or reduce the balance in the account to a negligible amount. If you close that account and put the funds in your name, the transfer will not be deemed a gift and the funds will be deemed not available to Joe in the context of his Medicaid application. 

Even if it is too late for Joe to sign a power of attorney giving you authority to handle his affairs and make gifts to yourself, it is not too late for you to delegate authority to an agent of your choice to handle your affairs down the road. To ensure that any power of attorney you sign is tailored to your needs, I urge you to retain an attorney who practices in the area of estate planning to explain in detail the current power of attorney and the various types of transaction and activities you may want to delegate, and to prepare for you a new power of attorney that reflects your wishes. 

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: 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.