Articles

Linda M. Toga’s monthly column, Legally Speaking, has been published by the Times-Beacon Record newspapers since 2009. Prior to that, she was featured in Newsday's Ask the Expert column a number of times. We invite you to browse the list of articles below or use the search options to the right to select articles based on areas of practice and/or keywords to find columns of interest to you. Note: The articles are for informational purposes only. All rights are reserved.
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Who can contest the provisions of a will?

The Facts: As part of their Medicaid planning, over ten 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 […]

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Are you leaving money on the table?

The Facts: My father died last year and I was issued letters testamentary by the surrogate’s court. When going through my father’s desk, I found a bank statement dated June, 1999, for a savings account I did not know existed. The balance in the account in 1999 was nearly $5000.  Unfortunately, the bank that held […]

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Can a wife demand more than she’s left in her husband’s will?

The Facts: My father married a woman named Jane after my mother’s death. They were married for ten years before my father died. In his Will, my father left everything except the contents of his house to me and my sister. The Questions: Is it true that Jane is entitled to a larger share of […]

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When are testamentary trusts appropriate?

The Facts: I have always believed that trusts were for people with money and that I would not need to create a trust in my Will, since my net worth is modest. The Questions: Are there circumstances when someone with modest means should consider a trust? The Answer: Absolutely! It is unfortunate that there are […]

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Am I responsible for my father’s debts?

The Facts: My uncle died without a Will. He was never married and has no children. He owned a house and a car and likely died with significant debts. No one in the family wants to handle his estate because they are concerned that they will be personally responsible for paying that debt. The Questions: […]

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Who will make arrangements for your funeral?

The Facts: I am an only child, widowed and have no children. I have very specific wishes relating to my funeral and burial. The Question: Since I have no parents, spouse, children or siblings, who will be in charge of my remains and responsible for arranging my funeral and burial? How It Works: Generally, a […]

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The Ins & Outs of Life Estates

The Facts: My mother deeded her house to my brother, Joe, and I and retained a life estate. The Questions: Can Joe and I sell the house to pay for our mother’s care? The Answer: You and your brother can sell the house but, only with your mother’s consent. Based upon her life estate, your […]

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Establishing a testamentary trust

The Facts: I want to leave a significant amount of money to my granddaughter in my Will but, I am concerned that she is not particularly good with money. The Questions: Is there a way I can leave her a bequest but be assured that the money will not be spent foolishly? The Answer: Absolutely! […]

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Can an irrevocable trust be revoked?

The Facts: I created an irrevocable trust a number of years ago. However, my circumstances have changed dramatically and the trust no longer suits my needs. I want to revoke the trust and sell the assets that are in the trust. The Questions: Although the trust is irrevocable, is there a way it can be […]

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To gift or not to gift…

The Facts: I wanted to give my children and grandchildren significant cash gifts for the Holidays but, I am confused about gift tax liability and about how gifting may impact my future eligibility for Medicaid in the event I need long term care. The Questions: Could you explain how gifts are treated for Medicaid and […]

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Financial issues when you remarry

The Facts: My husband died over five years ago. I met another man, Joe, and he has asked me to marry him. I love Joe and do not have any objections to getting married but, I have heard that remarrying may create financial problems for both me and Joe. The Questions: What issues do you […]

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Revising a Will after a divorce

The Facts: I recently divorced my spouse. I was told that once the divorce was finalized, it won’t matter that my spouse is named as the primary beneficiary of my estate in my Will since that designation will essentially be ignored. The Questions: Is it true that my estate will not pass to my ex-spouse […]

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To lapse or not to lapse…

The Facts: My mother’s brother, Joe, never married and did not have any children. He died with a Will in which he left everything to my mother and nothing to his other sister, Sue. In fact, Joe did not even mention Sue in his Will. Unfortunately, my mother died before Joe. I am my mother’s […]

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Long term health insurance…Yay or nay?

The Facts: I am in my early fifties and in good health but, I am concerned about depleting my assets in the event I need to enter a skilled nursing facility. Some of my friends have purchased long term care insurance and have complained about the cost of their policies. The Question: Is long term […]

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To probate or not to probate….

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 […]

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Do I Really Need a Healthcare Proxy?

The Facts: My daughter told me that I should have a healthcare proxy. The Question: What is a healthcare proxy and should I have one? The Answer: A healthcare proxy is a legal document recognized in New York by which competent adults appoint a person to make medical decisions for them in the event they […]

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Estate Planning for Small Business Owners.

The Facts: I am the owner of a family operated business. My wife and my son John are employed by the business. My other son, Tony, has no interest in being involved with the business. When my wife and I die, I want John to inherit the business which is my largest asset. However, I […]

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When does a real estate agent earn her commission?

The Facts: I recently listed my house for sale with a real estate agent and signed a brokerage agreement. Someone offered the full asking price for the house. My attorney forwarded a contract of sale to the potential buyer’s attorney. Although the potential buyer had the assets needed to purchase my house, he insisted that […]

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Is a Boundary Line Agreement Needed?

The Facts: I am selling my house. A number of years ago I replaced the fence that enclosed my back yard. The person who is buying my house had my property surveyed and it appears that the fence is about 3 feet inside my property line. The title company is requiring me to obtain a […]

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Consistency Is the Key

The Facts: My mother’s Will contains provisions that are inconsistent with other documents she has signed and with what she told my sister about the distribution of her estate. The Question: Are the Will provisions void or are the other documents unenforceable? The Answer: Unfortunately, the situation you’ve described is quite common and often creates […]

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Beware of Property Deed Scam

I generally do not revisit a topic if I have discussed it in a prior article. However, based on the number of phone calls I’ve received from clients in response to alarming solicitations they’ve received in the mail, I am making an exception this month. It has been almost three years since I first warned […]

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Joint Ownership of Real Estate: How Does It Work?

At least once a week a new client who owns real property with someone else comes to my office with a question about his rights and obligations with respect to his joint ownership of the property. Oftentimes the questions arise because the owners do not see eye to eye as to who is responsible for […]

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Setting Up a Trust For Your Pet

The Facts: I have two dogs that I consider part of my family. I want to be sure they are cared for after I die. Someone suggested that I include a Pet Trust in my Will The Question: Do you think this is a good approach? The Answer: Yes, I do. However, in addition to […]

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Some Implications of a Life Estate

The Facts: My father has decided to gift his house to me and my brother and to retain a life estate for himself. This is part of his Medicaid planning. The Question: What are the advantages and disadvantages of making this transfer? The Answer: The advantages of putting the house in your names now is […]

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Will My Brother Still Inherit?

The Facts: My mother died recently. She and my brother, who is my only sibling, had not spoken to each other in over a decade. In her Will, my mother disinherited my brother. On the beneficiary designation form for her IRA, my mother named my father, who predeceased my mother, as the sole beneficiary. She […]

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Who Can Dispute the Will?

The Facts: My sister died recently. In her Will she left 50% of her estate to friends and 50% of her estate to a charity. I feel she should have left her estate to her family. The Question: As her sibling, can I contest the probate of her Will? The Answer: Whether you can contest […]

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Vacation Planning and Estate Planning

It is that time of year when many people make vacation plans that involve flying or driving long distances or engaging in activities that are risker than their day to day activities. Whatever their vacation plans may include, being in a different environment, coupled with the risks associated with travel and the possibility that something […]

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Help With A Property Dispute

The Facts: I bought my boyhood home from my parents when they moved into a 55 and over community. The house was built by my parents in the 1980’s. Despite the fact that the driveway is in the same location now as it was when the house was first built, my neighbor brought over a […]

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Changes to New York’s Estate Tax Law

The Facts: I heard that the New York’s estate tax laws changed and that the value of an estate that can pass estate tax-free was increased. The Question: Is that true? If so, what is the current NYS estate tax exemption? The Answer: Fortunately for New Yorkers, the tax laws have changed and the tax […]

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Divorce and Life Insurance Beneficiaries

The Facts: When I got married in 2000 my wife named me as the beneficiary on her life insurance policy. We were divorced two years ago. Our divorce settlement provides that my ex-spouse is required to continue paying her life insurance premiums and is prohibited from removing me as the beneficiary. I was told that […]

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Can My Mother’s Estate Be Passed Directly to My Children?

The Facts: My mother recently died. In her Will she left her entire estate to me. If I had died before my mother, her estate would have passed to my children in equal shares. I would like my inheritance from my mother to pass to my children. The Question: Is there a way I can […]

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Your ‘To Do’ List Should Include Updating Your Will

We all know that time flies by and that important things are sometimes put on the back burner as we rush around taking care of our day to day responsibilities. We have also all heard heartbreaking stories about people who had every intention of revising their estate plans but, failed to take the necessary steps […]

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What Should I Look For When Retaining An Attorney?

My husband and I are buying our first house and we want to make sure our attorney works in our best interest. What should we look for when retaining an attorney? When choosing an attorney you want to be sure that the attorney has experience with residential real estate transactions.  The less real estate experience […]

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Joint Tenants or Tenants in Common: Which is Right for Me?

There are a number of ways in which individuals can take title to property. People who are not married to each other can own real property as tenants-in-common (TIC) or as joint tenants with right of survivorship. Co-owners who are TIC each own a share of the real property and have the right to sell […]

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Is Probate Always Necessary?

Depending on the type of assets owned by a person at the time of their death, and the value of those assets, probate may not be required, even if the person died with a  Will. If the only assets the decedent had in her own name are valued at less than $30,000 and do not […]

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Can My Adopted Child Claim a Share of His Birth Father’s Estate?

Recently a client contacted me with a question about her  adoptive son’s right to claim a share of his birth father’s estate. She was under the impression that the adoption relieved the father of all obligations to the child and wanted to know if she was correct. Generally an adopted child does not have the […]

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Do I Really Have to pay That Back?

Estate planning clients often ask me how loans they have made to friends and family members should be addressed in their Wills. Since a private loan is simply an agreement between individuals, there is no right or wrong way to deal with loans when the lender dies.  The intent of the parties as expressed in […]

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And the Cut Crystal Goes To…

Go to http://roelresources.com/and-the-cut-crystal-goes-to/ to see my recent article on ways to distribute your assets and avoid fighting.   Happy reading!   Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business […]

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