<?xml version="1.0" encoding="UTF-8"?><rss version="2.0"><channel><title><![CDATA[The Law Offices of Linda M. Toga, P.C.  | Setauket, NY]]></title><description><![CDATA[Articles]]></description><link>http://www.lmtogalaw.com/</link><copyright><![CDATA[Copyright The Law Offices of Linda M. Toga, P.C.  | Setauket, NY]]></copyright><generator>sNews CMS</generator><item><title><![CDATA[DO I NEED A CERTIFIED DEED?]]></title><description><![CDATA[    This article first appeared in the April 5, 2012 issue of the Times Beacon Newspapers.  

    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. The reason it is a scam is that most people will never need a certified copy of their deed. In the unlikely event a property owner needs to produce a certified copy of the deed to their house, they can easily obtain one either in person or by mail for a fraction of what the company is charging. Although companies like the one that sent you the letter often refer to an article published by the Federal Citizen Information Center (“FCIC”) to convince property owners that they must have a certified copies of their deeds, it is noteworthy that the FCIC website contains a warning about the deceptive practices of companies that send mass mailings like the one you received to unsuspecting property owners.   

  How It Works: When you purchased your property, the original deed signed by the seller should have been forwarded to the county clerk for recording. Once the deed was recorded in the county land records, the original deed would have been returned to you, as the new property owner, or to your attorney. If the original deed was not returned to you or your attorney, or if it has been lost, you can obtain a copy of the deed from the county clerk in the county where your property is located. Directions for how to obtain a copy of your deed are available by calling the Suffolk County Clerk’s Office at 631-852-2000. You can obtain a copy of a deed by making the request in person or by mailing in a request and supporting documentation. If, for some reason, you do need a certified copy of your deed, the county clerk can also provide you with a certified copy of your deed. Rather than paying the $85 charged by some private companies, you will only have to pay the county clerk about $5.00 to get a certified copy of a deed up to 4 pages long.   

  Once you have your deed, you should keep it in a safe place, along with other important documents like your birth and marriage certificates, will, power of attorney, healthcare proxy, titles to vehicles you own, insurance policies and passport.   

  Linda M. Toga, Esq. provides legal services in the areas of real estate, estate planning and litigation from her East Setauket office.     


]]></description><pubDate>Thu, 12 Apr 2012 14:57:00 +0000</pubDate><link>http://www.lmtogalaw.com/home/do-i-need-a-certified-deed/</link><guid>http://www.lmtogalaw.com/home/do-i-need-a-certified-deed/</guid></item><item><title><![CDATA[SHOULD THE HOUSE BE PUT IN AN IRREVOCABLE TRUST?]]></title><description><![CDATA[     This article first appeared in the March 8, 2012 issue of the Times Beacon Newspapers.   
 
    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 simply gifted the house to us now?  

    The Answers:   The answer to your first question is “NO.” Unless you and your brother are also named as trustees of the trust, you will not be able to sell the house until it passes to you after your father’s death. The authority to sell trust property is held by the trustee named in the trust document, not by the beneficiaries.   

  Whether it would be “better” for your father to simply gift the house to you and your brother now depends upon his goals. If the goal is to qualify for Medicaid benefits, it does not matter if your father transfers the house to an irrevocable trust or to you and your brother outright. While both transfers will terminate your father’s control over the house (necessary for Medicaid purposes), both will also trigger a penalty period if the transfer takes place less than five (5) years before your father applies for Medicaid. Once the five years passes, assuming your father is otherwise eligible for Medicaid, who owns the house will be irrelevant.   

  However, if your father’s goal is to maximize your inheritance, whether he gifts you and your brother the house now or puts it in an irrevocable trust will make a difference. If the house is in trust at the time of your father’s death, you and your brother will become the owners of the house and will get a step-up in basis. This will likely avoid significant capital gains taxes when you sell the house.   
However, if you are gifted the house during your father’s lifetime, your basis will be the same as your father’s. Assuming the house has appreciated a great deal since your father purchased it, your capital gains tax could be significant, effectively decreasing the size of your inheritance.   

  Another option open to your father is to transfer the house to an irrevocable trust and to retain a life estate. In this scenario, you and your brother will likely not incur any capital gains tax liability since you will get a step-up in basis when the house is transferred to you after your father’s death. In addition, retaining a life estate may make the transfer of the house into an irrevocable trust more palatable to your father because, although he gives up control over the house, his consent will be required to sell the house. As long as he is alive, your father will have an interest in the house and can block its sale.  

  There is, however, a downside to putting the house in an irrevocable trust with a retained life estate. Due to the passage of new Medicaid rules in September, 2011, if your father retains a life estate, upon his death, Medicaid can recover from you and your brother the value of your father’s life estate. For example, if the value of your father’s life estate is $60,000 and Medicaid made payments on your father’s behalf of $60,000 or more, Medicaid can assert a claim against the house after your father dies for the amount of the benefits paid out up to the value of the life estate. Unless the new recovery rules are amended or repealed, retaining a life estate will decrease the size of your inheritance by the amount of the benefits paid on your father’s behalf. Depending on the potential capital gains liability, this may make the life estate option more or less appealing to your father than the other options discussed above. It would be worthwhile to discuss this matter with an experienced elder law attorney and/or financial/tax advisor before deciding which option is “better” for your father.   

  Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate and litigation from her East Setauket office.   
  

]]></description><pubDate>Thu, 12 Apr 2012 14:56:44 +0000</pubDate><link>http://www.lmtogalaw.com/home/should-the-house-be-put-in-an-irrevocable-trust/</link><guid>http://www.lmtogalaw.com/home/should-the-house-be-put-in-an-irrevocable-trust/</guid></item><item><title><![CDATA[SELLING A HOUSE HELD BY AN IRREVOCABLE TRUST]]></title><description><![CDATA[    This article first appeared in the March 9, 2012 issue of the Times Beacon Record Newspapers.   

    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 simply gifted the house to us now?   

    The Answers:   The answer to your first question is “NO.” Unless you and your brother are also named as trustees of the trust, you will not be able to sell the house until it passes to you after your father’s death. The authority to sell trust property is held by the trustee named in the trust document, not by the beneficiaries.    

  Whether it would be “better” for your father to simply gift the house to you and your brother now depends upon his goals. If the goal is to qualify for Medicaid benefits, it does not matter if your father transfers the house to an irrevocable trust or to you and your brother outright. While both transfers will terminate your father’s control over the house (necessary for Medicaid purposes), both will also trigger a penalty period if the transfer takes place less than five (5) years before your father applies for Medicaid. Once the five years passes, assuming your father is otherwise eligible for Medicaid, who owns the house will be irrelevant.    

  However, if your father’s goal is to maximize your inheritance, whether he gifts you and your brother the house now or puts it in an irrevocable trust will make a difference. If the house is in trust at the time of your father’s death, you and your brother will become the owners of the house and will get a step-up in basis. This will likely avoid significant capital gains taxes when you sell the house. However, if you are gifted the house during your father’s lifetime, your basis will be the same as your father’s. Assuming the house has appreciated a great deal since your father purchased it, your capital gains tax could be significant, effectively decreasing the size of your inheritance.    

  Another option open to your father is to transfer the house to an irrevocable trust and to retain a life estate. In this scenario, you and your brother will likely not incur any capital gains tax liability since you will get a step-up in basis when the house is transferred to you after your father’s death. In addition, retaining a life estate may make the transfer of the house into an irrevocable trust more palatable to your father because, although he gives up control over the house, his consent will be required to sell the house. As long as he is alive, your father will have an interest in the house and can block its sale.   

  There is, however, a downside to putting the house in an irrevocable trust with a retained life estate. Due to the passage of new Medicaid rules in September, 2011, if your father retains a life estate, upon his death, Medicaid can recover from you and your brother the value of your father’s life estate. For example, if the value of your father’s life estate is $60,000 and Medicaid made payments on your father’s behalf of $60,000 or more, Medicaid can assert a claim against the house after your father dies for the amount of the benefits paid out up to the value of the life estate. Unless the new recovery rules are amended or repealed, retaining a life estate will decrease the size of your inheritance by the amount of the benefits paid on your father’s behalf. Depending on the potential capital gains liability, this may make the life estate option more or less appealing to your father than the other options discussed above. It would be worthwhile to discuss this matter with an experienced elder law attorney and/or financial/tax advisor before deciding which option is “better” for your father.    

  Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate and litigation from her East Setauket office.      


]]></description><pubDate>Mon, 12 Mar 2012 11:28:00 +0000</pubDate><link>http://www.lmtogalaw.com/home/selling-a-house-held-by-an-irrevocable-trust/</link><guid>http://www.lmtogalaw.com/home/selling-a-house-held-by-an-irrevocable-trust/</guid></item><item><title><![CDATA[REMARRYING? IT MAY BE TIME TO REVISE YOUR WILL]]></title><description><![CDATA[    This article first appeared in the February 9, 2012 issue of the Times Beacon Record Newspapers.  

    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 planning on selling our respective houses and buying a place that we will own as tenants in common. The idea is that we will each pass our 50% interest in the house to our respective children in our Wills.   

    The Question:   Are there issues relating to estate planning that we need to consider given the fact that we each want to pass to our respective children the bulk of our estates?  

    The Answer:   Absolutely! Even for couples that do not have children, a second marriage always raises estate planning issues ranging from whether to sign a pre-nuptial agreement (a “prenup”) to whether to be laid to rest next to the first or the second spouse. It is important to discuss all the issues in advance and to take steps to ensure that there are no unforeseen consequences to saying “I do.”   

  Although some people do not think of a prenup as part of an estate plan, a comprehensive prenup not only addresses the distribution of assets in the event of a divorce, but also touches on whether the surviving spouse will exercise a right of election (the right to receive approximately 1/3 of a deceased spouse’s estate regardless of the terms of a Will), whether the surviving spouse will be presumed to be the administrator of the estate of the first to die and whether the surviving spouse will be able to enforce spousal rights to his/her spouse’s pension and other types of benefits. If you and your fiancé want to be sure that your estates pass to your respective children, it would be helpful to enter into a prenup.   

  With or without a prenup, people who are remarrying need to consider if and how they are going to provide for their new spouse if that spouse survives them. For example, it the couple jointly owns their primary residence as tenants in common, one thing to consider is whether the surviving spouse will be allowed to live in the primary residence until he/she passes. If the surviving spouse is not given the right to reside in the residence but wishes to do so, he/she may be able to buy out the children of the first to die. Absent a buy out, the residence will likely be sold and the proceeds divided between the surviving spouse and the decedent’s children. If the surviving spouse is given the right to live in the residence, the couple will have to decide if the surviving spouse will be responsible for paying the carrying costs of the residence. Another issue to consider is what happens to the household furnishings and other tangible property that the couple may have purchased together. If the property is owned jointly with right of survivorship, the surviving spouse will own the residence outright upon the death of the first spouse, and the children of the first spouse to die will have no legal interest in the residence. Clearly, there are special considerations when the surviving spouse is not the parent of the beneficiaries named in the decedent’s Will.   

  Putting aside the issues relating to real property, a second marriage also raises questions about the extent to which the first spouse to die wishes to provide for the surviving spouse. Because the assets passing directly to a surviving spouse decreases the amount of assets that will pass to the decedent’s children of the first to die, some people limit their support of their second spouse by placing some or all of their testamentary assets into a trust for the benefit of the surviving spouse during his/her lifetime. Upon the death of the surviving spouse, the balance in the trust can pass to the children of the spouse who died first. The terms of the trust can be very generous or can be such that the funds in the trust are only available for necessities such as medical care and support. Couples must engage in a balancing act when they decide how to provide for their surviving spouse while insuring that the bulk of their assets pass to their own children. An assessment must be made of the available assets of both spouses, as well as their wishes and needs.   

  Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, real estate and litigation from her East Setauket office.   


  

]]></description><pubDate>Wed, 29 Feb 2012 16:14:00 +0000</pubDate><link>http://www.lmtogalaw.com/home/remarrying-it-may-be-time-to-revise-your-will/</link><guid>http://www.lmtogalaw.com/home/remarrying-it-may-be-time-to-revise-your-will/</guid></item><item><title><![CDATA[CHILDREN&#039;S INHERITANCE WHEN A PARENT DIES]]></title><description><![CDATA[    This article first appeared in the January 12, 2012 issue of the Times Beacon Record Newspapers.   

    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 sons’ lives for some time. I just learned that my ex is receiving hospice care.   

    The Question:   When their father dies, will my sons be entitled to a portion of his estate or will it all pass to his second wife?  
 
    The Answer:   The answer to that question depends on whether your ex has a Will at the time of his death.   

  If your ex dies with a Will, whether or not your sons inherit will be governed by the terms of the Will. In New York, you cannot disinherit your spouse but, you can disinherit your children. This is usually done by including in your Will a provision that states that you are not making a bequest for or otherwise providing for a specific child or children. However, even without this language, if your sons are not identified as beneficiaries in the Will, they will not share in his probate estate. Of course, if your ex named your sons as beneficiaries on a life insurance policy or a retirement plan, or they are named as joint holders on an account or deed, your sons will be beneficiaries of your ex’s non-probate estate.  
 
  As mentioned above, if your ex dies without a Will and he owns any assets individually (i.e.: not jointly with his new spouse or some other person), the intestacy statute will govern how those assets are distributed. Under the statute, the distributions made to each beneficiary are calculated after deducting from the gross estate all debts, administration expenses and funeral expenses, and removing from the available assets any assets that automatically pass to the decedent’s spouse and minor children. For purposes of the statute, both of your sons are minors and are entitled to a share of the assets that are exempt for the benefit of your ex’s family. Exempt property includes, among other things, a car with a value of up to $25,000, household furnishings with a value up to $20,000 and up to $25,000 in cash.  In addition to a share of the exempt property, your sons will be entitled to a share of your ex’s non-exempt assets provided the value of the assets available for distribution exceeds $50,000.   

  Under the intestacy statute, your ex’s new spouse is entitled to a share of the exempt property, an additional $50,000 and ½ of the balance of your ex’s probate estate. Assuming your sons are your ex’s only children, as mentioned above, they are entitled to a share of the exempt property plus the other ½ of their father’s estate.    

  Regardless of whether your ex dies with or without a Will, your sons, by virtue of the fact that they are your ex’s children, should receive notice of any proceeding commenced in connection with the administration of your ex’s estate.   

  Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, real estate and litigation from her East Setauket office.     


]]></description><pubDate>Fri, 20 Jan 2012 17:00:58 +0000</pubDate><link>http://www.lmtogalaw.com/home/childrens-inheritance-when-a-parent-dies/</link><guid>http://www.lmtogalaw.com/home/childrens-inheritance-when-a-parent-dies/</guid></item></channel></rss>
