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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Estate Planning With a Trust and Life Estate

The Facts: My father is planning on putting his house into an irrevocable trust and naming me as trustee. He will be naming my sister and me as beneficiaries of the trust. The Questions: Can my father sell his house once it is in the trust? If my father goes into a nursing home, can […]

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Long Term Care Insurance

Clients frequently ask me why they should invest in long term care insurance (“LTC insurance”). There are many reasons, not the least of which is that few people are anxious to deplete their savings, borrow against retirement accounts and  life insurance or sell off assets simply to cover their healthcare needs. LTC insurance offers a […]

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Misconceptions about Estate Planning

Copy and paste the following links into your browser to view 2  informative videos featuring Linda M. Toga addressing common misconceptions about estate planning.  

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Here’s to the Older Americans in my LIfe….

May is Older Americans Month.  Since 1963 when President John F. Kennedy proclaimed May to be “Senior Citizens Month”, May has been the month in which communities across the nation acknowledge the important contributions older Americans have made and continue to make to our country.  In 1980 President Jimmy Carter changed the designation to “Older […]

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Separation and Estate Planning

I’ve met with a number of clients lately who have been separated from their spouses for many years but, who, for some reason, never obtained a divorce. All are under the impression that the long separation effectively cut off any rights their spouse may have to their estates. Unfortunately, they are mistaken. In New York […]

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There are Always Strings Attached….

Thinking about putting your children’s name on the deed to your house? Think again. Although giving your children your house and reserving for yourself a life estate may seem like an excellent strategy to avoid probate, there are significant downsides. The most obvious is the loss of control. Once you put your children’s names on […]

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Is it Time to Revise Your Will?

Recently I was reminded of how important it is to update your Will when circumstances change. A client came to see me about probating her husband’s Will. Unfortunately, her husband had signed the Will before he met my client and did not take the time to revise it.  Since he did not have any children […]

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Do I Need to File a Gift Tax Return?

This time of year I frequently hear from clients who made gifts to family members asking if they need to file a gift tax return.  Gifting can play an important role in an estate plan as a means to avoid estate tax. However, there are limits as to the value of gifts that can pass […]

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Have You Looked at Your Life Insurance Policy Lately?

I cannot stress enough the importance of updating the beneficiary designation on your life insurance policy.  So many people simply forget to change the designated beneficiary when they experience a death, marriage, divorce or other major life event.  As a result, the insured’s intended beneficiaries have to fight for what the insured would have wanted […]

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Calculating an Executor’s Commissions

There seems to be a great deal of confusion about the commissions that may be paid to the executor of an estate. Clients frequently ask me if they should specify in their Will the total commission that should be paid  to the executor or if it is better to have the commissions determined by the […]

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Should I Retain a Buyer’s Agent?

Facts: We are thinking about buying our first home. A number of people told us we should engage a buyer’s agent to assist us. Question: Is that really necessary? Answer: Although having a buyer’s agent is not “necessary,” there are many good reasons for engaging a buyer’s agent. Buyer’s agents are defined in the NYS […]

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How to Start a Small Businesss in NY

Facts: A friend of mine recently started his own business and is now running into all sorts of trouble since he did not properly file documents with the state or local governments or obtain the proper approvals. Question: Is there some trick to opening a new business in New York? Answer: There are no tricks […]

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What is the Role of the Executor in Settling an Estate?

The Facts: Some people who have been named as executors told me their jobs were quite simple while others complained about all the time and effort it takes to administer an estate. The Question: What are the responsibilities of an executor and why does the complexity of the process vary so much? The Answer: The […]

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A Healthcare Proxy is Not Enough

The Facts: I thought that the only legal document I would need in the event of a medical emergency was a healthcare proxy. However a friend told me that a power of attorney (“POA”) can play a critical role in a medical emergency. The Question: Is this true? The Answer: Absolutely! While the person you […]

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What if I Don’t Want My Inheritance?

The Issue: 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.  Is there a way I can accomplish that? If […]

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Will or Beneficiary Form: Which Controls?

The Facts: I was told that the money in the joint account I have with my son and the money in my IRA will not be distributed according to my Will when I die. The Question: Is that correct? The Answer: Yes, that is correct. Many people mistakenly believe that, following their death, the provisions in their Will […]

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Is the State Holding Your Money?

The Facts: After my mother died, I found the passbook for a savings account she had at a local bank. I contacted the bank and was advised that the account was closed and that the funds in the account were transferred to the state a few years before my mother’s death. The Questions: Can a bank simply […]

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Does Making Annual Gifts Impact on Medicaid Eligibility?

The Facts: I have been making gifts of $13,000 per year to my children for some time. I was told that as long as I did not give any of my children more than $13,000 a year, I would not be penalized when I applied for Medicaid benefits. A friend of mine who also gave gifts […]

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Is it Time for a Guardian?

The Facts: My lifelong friend Mary recently suffered a massive stroke. She has lost the ability to speak, cannot walk and cannot handle her affairs due to the cognitive impairment caused by the stroke. Mary is currently living in a nursing home. A few years ago Mary had her attorney prepare a Will as well as […]

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Who is Required to Get Notice of the Probate of My Will?

The Facts: My father died 2 years ago. My mother is receiving hospice care. In her Will my mother leaves her estate to me and my sister. Her Will provides that my estranged brother who has not been seen or heard from by anyone in the family for over a decade is not to receive anything. […]

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Do I Need a Certified Deed?

The Facts: I recently received a letter from a company suggesting that I should have a certified copy of my deed. The company offered to get the deed for me for about $85. The Question: Is this a scan? The Answer: Yes, it is a scam and one that is quite lucrative for the company making the offer. […]

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Should the House be Put in an Irrevocable Trust?

The Facts: My elderly father is putting his house into an irrevocable trust and naming me and my brother as beneficiaries of the trust. The Questions: If my father decides to move out of his house, will we be able to sell the house while my father is still alive? Would it be better if my father […]

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Remarrying? It May Be Time to Revise Your Will

The Facts: I am divorced and getting married for the second time. I have two children. The woman I am marrying, Sally, is a widow with two children. All of the children are grown and living independently. We are both fairly well off and each have some investments as well as IRAs. Sally and I are […]

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Children’s Inheritance When a Parent Dies

The Facts: I was married for 20 years and have two sons ages 19 and 13. I am now divorced and my ex-husband has remarried. Despite the settlement papers we signed in connection with our divorce, my ex never paid child support or contributed to my sons’ education expenses and has not been part of my […]

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What if a Beneficiary Dies Before Me?

The Facts: My mother’s brother, Frank, never married and did not have any children. He died with a Will that left everything to my mother. Although Frank and my mother had a brother, John, Frank did not mention John in his Will. Unfortunately, my mother died a year before Frank. I am my mother’s only heir. […]

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Money Judgment May Impact on an Inheritance

The Facts: When I was unable to pay my medical bills, my doctor obtained a money judgment against me. The judgment was docketed in the county clerk’s office a few years ago. My father just passed away and I inherited his house. The Questions: Can the doctor’s judgment lien attach to the property I am inheriting even […]

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What is Title Insurance and Why Do I Need It?

The Question: I am buying my first house and was told I need to get title insurance. What is title insurance and do I need it? The Answer:  That interest may take many forms including an ownership interest or a judgment or lien against the property. While you are not required by law to purchase title […]

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Is it Time for the Appointment of a Guardian?

The Facts: My aunt is widowed and living alone. Lately it has become clear that she cannot continue to live independently and cannot handle her finances. She is confused and does not appear to be eating well or bathing regularly. Unfortunately, there are no family members in a position to take care of my aunt. She […]

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Grandparents Have Rights Too

The Question: Despite a strained relationship with my daughter-in-law Jane, I have cared for my grandson in my home three days a week since he was born 5 years ago. My son died tragically a few months ago. Jane made new arrangements for my grandson’s care and will no longer allow me to see him. What […]

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All You Need to Know About Prepaid Funerals

The Question: Is it true that I can spend down my resources in order to become Medicaid eligible by paying for my funeral in advance? The Answer: Absolutely. Not only can you prepay all of your funeral expenses without triggering a penalty under the Medicaid guidelines, but there is no limit to how much you may prepay […]

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What Happens if the Trust is Not Funded?

The Question: What, if anything, can be done if someone created a trust but failed to transfer any assets into the trust? My father intended to transfer his house and the funds in his brokerage account into his revocable trust to avoid probate and a possible Will contest by my brother. Unfortunately, my father never signed […]

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Do You Make Too Much to be Medicaid Eligible?

The Question: I created an irrevocable trust to protect my assets in the event I needed nursing home care in the future. The trust was funded over five years ago so I know that the Medicaid look-back period is not a problem. However, I am concerned about the income I receive from the trust. Is it […]

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Third Party Recipients of Insurance Notifications

In November, 2010, a new law took effect in New York which allows senior citizens 65 years of age or older, to designate a third-party to be notified by insurance carriers in advance of the cancellation or non-renewal of the senior’s health insurance or long term care insurance policy. Recognizing that many seniors can no […]

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Eviction: What Tenants and Landlords Need to Know

Every news outlet has featured stories about the home foreclosure crisis but, little attention has been paid to the impact of the economic downturn on the residential rental market. Unfortunately, both landlords and tenants have been adversely impacted by job losses, as well as a marked decrease in the value of real estate. Whether you […]

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Options for Seniors to Terminate Their Residential Lease

Facts: I have a two year lease on the apartment where I live. Due to my deteriorating health, I want to move into an assisted living facility. Question: Can my landlord insist that I pay the rest of the money due on my lease? Answer:Depending on your age and the circumstances of your move, you may be […]

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The Who, What, Why Etc. of Contesting a Will

Clients often express concern that a dissatisfied family member may contest the probate of their Will. While a Will contest can be costly both in terms of money and time, only certain individuals can object to the probate of a Will and only certain grounds for objecting are acceptable. A person is able to file […]

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What Happens if you Die Without a Will?

Many people mistakenly assume that, if they die without a Will, all of their assets are taken by the government. Although seizing a person’s assets may be a great way for the government to raise revenue, unless a person owes the government money, the government will not step in and seize a person’s assets when […]

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Who is the Record Owner of Your Property?

With low interest rates and a glut of properties on the market, an increasing number of clients are looking to purchase real property. Many of those clients are purchasing the property with friends and family members and have questions about how best to take title to the property. Since joint ownership of property can take […]

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What is Probate?

As an attorney that focuses on estate planning, I am frequently asked what “probate” means. Technically, probate is the court procedure by which a decedent’s Will is either proved to be valid or found to be invalid and unenforceable. However, many people use the word probate in a more general sense to mean the process […]

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