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legally speaking

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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 Just as there is a 60-day period during which the paternity acknowledgment can be rescinded, the court has 60 days in which to vacate an Order of Filiation before it is deemed conclusive evidence of paternity.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.

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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.

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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.

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By Linda Toga

screen-shot-2016-12-08-at-3-41-23-pmTHE FACTS: With the holidays fast approaching, I’ve been thinking about making gifts of cash to my grown children. I’ve heard that I can give each child $14,000 without any negative tax consequences. I am not wealthy but, at this point, I believe I can afford to give each of my children $14,000. I know they could really use the money.

THE QUESTION: Is there any reason I should think twice before making the gifts?

THE ANSWER: The quick answer is that when you’re talking about giving away thousands of dollars, you should always think twice. That being said, there are many factors that you should consider before deciding whether making significant cash gifts to your children is in your best interest.

Since you did not mention your age, your health status or the number of children you have, it is difficult to say which factors may prove the most important in your decision-making process.

Under current federal gift tax laws, a person can give any number of people up to $14,000 a year without incurring any gift tax liability. The recipients of the gifts need not report them on their tax returns and can simply enjoy the grantor’s generosity.

The need for the grantor to report gifts to the IRS only arises if the value of the gifts made to any one person in a single calendar year exceeds the $14,000 gift exclusion.  In that case, in April following the year in which gifts valued at over $14,000 were given to a single recipient, the grantor is required to file a gift tax return with the IRS. The return reports the amount of the gift in excess of $14,000.

For example, if the grantor made a gift of $20,000, he would have to report $6,000 of the gift on the gift tax return. Under current federal law, no gift tax will be due unless and until the cumulative value of the gifts reported by the grantor exceeds the estate tax exclusion amount in effect when the gift tax return is filed.

For gifts made in 2015 and reported in 2016, the grantor would not have to pay any gift tax unless the value of his cumulative lifetime gifts exceeded $5.45 million. Under New York State law, there is no gift tax, but the value of gifts made in the last three (3) years of the grantor’s life may be added to the value of his estate for purposes of calculating estate tax.

Since most people are not in a position to give away millions of dollars during their lifetime, whether or not a gift triggers a gift tax liability is usually not a deciding factor in making gifts. A more important factor for many grantors is whether they will need the money as they age. The cost of long-term care and the possibility that the grantor may need to apply for Medicaid are factors that frequently dictate whether gifting is a good option.

While the gift tax laws allow people to make gifts of up to $14,000 to countless people each year without adverse tax consequences, Medicaid eligibility is not governed by the tax code. As a result, many people who make gifts in accordance with the IRS guidelines are later surprised to find they are penalized for making those gifts when applying for Medicaid.

Under the Medicaid guidelines, gifts made within five (5) years of applying for benefits may trigger a penalty period based upon the value of those gifts. For younger, healthier grantors, the risk of having to apply for benefits within five (5) years of making a gift and then facing a penalty period may be minimal. However, the risk increases for the elderly or those with serious health conditions.

If you feel that you have adequate assets to cover the cost of your care, or if you have a generous long-term care insurance policy, you may not be concerned about the cost of care down the line, in which case making significant gifts to your children should be fine.

However, before you actually write those $14,000 checks to your children, I encourage you to carefully look at both your financial and physical health and assess your risk tolerance. After all, you don’t want to make the gifts this year and then have to ask your children to return the money or pay for your care next year.

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.

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By Linda M. Toga, Esq.

The Facts: I am named executor in my brother’s will. He died recently and his assets include a bank account and a house. Someone told me that since I am the named executor, I can close the account and sell his house simply by presenting the will.

The Question: Is that true?

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

In other words, you must establish to the court’s satisfaction that the will is valid before you are able to act as executor. You 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 your attorney 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 but, if there are objections filed to the probate of a will, the process can drag on for quite some time, significantly increasing the expenses of the estate.

Assuming the probate process goes smoothly and your brother’s will is ultimately admitted to probate, you will be issued letters testamentary by the court. Only then will you be in a position to marshal your brother’s assets, pay any legitimate outstanding debts your brother may have had, and make distributions in accordance with the wishes set forth in your brother’s will.

Once you have located and distributed your brother’s assets, you will be required to file with the court an inventory of your brother’s assets and releases from the beneficiaries stating that they received the bequests to which they were entitled under the will.

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate administration and estate planning, real estate, marital agreements and litigation from her East Setauket office.

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