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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Giving the gift of education

THE FACTS: I would like to help defray the cost of college for my grandson, Joe. My daughter and son-in-law are not in a position to pay full tuition, room and board. I don’t want them or Joe to borrow for his education. THE QUESTION: What is the best way to help out without hurting […]

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Children’s expectations

THE FACTS: My husband and I are in our sixties and have three grown children. All were given the same opportunities growing up, but they did not all take advantage of those opportunities or make wise decisions about their futures. Our two daughters are financially secure and doing very well. Our son, however, has struggled […]

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Including a pet trust in your will

THE FACTS: My mother has a dog, Fido, who means the world to her. When it comes to Fido, money is no object. She is very concerned about what will happen to Fido when she dies. Not only does she worry about who will care for Fido but also about who will pay for Fido’s […]

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Credit shelter trusts

THE FACTS: I had my will prepared years ago. The estate tax exclusion amount at the time was considerably less than it is now, so my will contains a provision that directs my executor to create a credit shelter trust to avoid estate taxes. The trust provision mandates that the credit shelter trust be funded […]

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Preventing an estate disaster

THE FACTS: My father and sister perished in a plane crash under circumstances making it impossible to determine the order of death. My sister is survived by her spouse, Joe, and two children. My father’s will leaves his entire estate in equal shares to me and my sister, per stirpes. He was under the impression […]

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When to appoint a guardian

THE FACTS: My elderly aunt never married and is living alone. During my recent visits with her, it has become evident that she cannot continue to live independently. She is not bathing regularly, there does not appear to be much food in the house, some of the food is past its prime and the mail […]

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Who pays estate taxes?

THE FACTS: After my mother’s death, my father met a woman, Mary, who was his partner for many years. They lived in my father’s house, which has a value in excess of $3 million. In his will my father left the house to Mary. He also named Mary as the beneficiary of his life insurance […]

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Medicaid eligibility

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 […]

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The rights of a grandparent

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 […]

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The legal significance of paternity

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 […]

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Life estate pitfalls

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: […]

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Are your affairs in order?

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 […]

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Can a will’s executor take the money and run?

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 […]

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End of the year gifting

THE 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 […]

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Apportionment of estate taxes

The Facts: I recently inherited a beachfront house that has been in my family for generations. Although it was quite modest when first built, the house has appreciated tremendously over the years.  As a result of the inheritance, the value of my estate is now in excess of the estate tax exclusion amount. I do […]

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Choosing a guardian for your minor children

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 […]

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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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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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