<?xml version="1.0" encoding="UTF-8"?><rss version="2.0"><channel><title><![CDATA[The Law Offices of Linda M. Toga, P.C. ]]></title><description><![CDATA[Articles]]></description><link>http://www.lmtogalaw.com/</link><copyright><![CDATA[Copyright The Law Offices of Linda M. Toga, P.C. ]]></copyright><generator>sNews CMS</generator><item><title><![CDATA[DAD&#039;S HOUSE: TRUST VS. GIFT]]></title><description><![CDATA[    First published in Newsday Ask the Expert column on September 13, 2008             The Problem: My 63-year-old father is putting his house into an irrevocable trust and naming me and my two siblings as the beneficiaries. If he decides to move out of his house, will we be able to sell it while dad is still alive? Would it be better if my father gifted us the house?     The Expert: Linda M. Toga, estate planning and elder law attorney,   East Setauket.  
  The Rules: Assuming your father is creating the trust for Medicaid purposes, he must give up all control over the house. It will not be considered an available asset for Medicaid purposes as long as your father doesn't control it and it has been in trust at least five years before your father applies for benefits. Only the trustee has the authority to sell a house placed in a trust. ]]></description><pubDate>Thu, 25 Sep 2008 16:46:00 +0000</pubDate><link>http://www.lmtogalaw.com/home/dads-house-trust-vs-gift/</link><guid>http://www.lmtogalaw.com/home/dads-house-trust-vs-gift/</guid></item><item><title><![CDATA[ASSIGNING EMERGENCY POWERS]]></title><description><![CDATA[
    First published in Newsday Ask the Expert column on March 29, 2008.    

  The Problem: My friend Mary recently
suffered a stroke that left her mentally incapacitated in a nursing home. A few
years ago, she named me as her healthcare agent and her attorney in fact. Will
the court appoint a guardian for her now?  


  The Expert: Linda M. Toga, estate
planning and elder law attorney,   East Setauket  .  



  The Rules: No. The existence of a
health care proxy and a durable power of attorney naming competent  ,   qualified adults who are willing and
able to make decisions on behalf of an incapacitated individual usually negates
the need for a court-appointed guardian.   


  How it Works: Assuming that the health
care proxy and the power of attorney that Mary signed are valid, unambiguous
and properly drafted and executed, you now have the authority to make decisions
about Mary’s medical care and her assets.   



  The Strategy: If Mary’s health
care proxy states that you have authority to make decisions about, or are aware
of Mary’s wishes regarding artificial nutrition, hydration and cardiopulmonary
resuscitation, you can refuse these procedures on Mary’s behalf. Similarly, if
the health care proxy states that you can make decisions concerning organ
donation, you have the authority to donate Mary’s organs.  



  As for Mary’s assets, when Mary
signed the power of attorney, she indicated which types of transactions you had
authority to conduct. She could have given you the authority to deal with all
financial matters - from banking transactions to the sale of real estate to
engaging in estate planning on her behalf. Assuming you are competent to act as
Mary’s agent, and you have the authority under the power of attorney to conduct
all of the different types of transactions needed to manage and protect Mary’s
assets, there is no reason for a court to appoint a guardian to handle Mary’s
affairs.   



  The Results: By having the
foresight to execute a health care proxy and power of attorney, Mary not only
avoided the time and expense of a guardianship proceeding, but she insured that
her assets will be protected and her wishes with respect to end of life care
will be honored.           

]]></description><pubDate>Tue, 27 May 2008 12:25:16 +0000</pubDate><link>http://www.lmtogalaw.com/home/assigning-emergency-powers/</link><guid>http://www.lmtogalaw.com/home/assigning-emergency-powers/</guid></item><item><title><![CDATA[A Winding Road from Biology]]></title><description><![CDATA[    As Seen In July 13-19, 2007 Long Island Business News    
  ©2007, Long Island Business News, all rights reserved  
    
  
  Linda Toga, the new president
  of the Suffolk County
  Women’s Bar Association, has
  followed a twisting path.  
  
  The New Jersey native
  attended college in Maine
  before earning a master’s
  degree in biology – with a concentration
  in electron
  microscopy – from Boston
  College Graduate School of
  Arts and Sciences. She was
  involved in early neurological
  research into the causes of
  Alzheimer’s disease when she
  moved to Manhattan with her
  husband.  
  
  Toga left the biomedical field
  when her first child was born,
  and was living in Albany when
  she decided to attend law
  school. The jump from biomedical
  work to the law was shorter
  than one might think, Toga
  said, since both involve a
  research, reading and attention
  to detail.  
  
  Toga enrolled at Hofstra
  University School of Law in
  1995 and joined the Suffolk
  County Women’s Bar
  Association – a wise career
  move, she said.  
  
  “Through the SCWBA, I have
  met women who are always
  available to answer questions
  and to offer support as professional
  attorneys,” Toga said.
  “They’ve become mentors and
  longtime friends.”  
  
  After graduating law school
  in 1998, Toga first worked with
  the firm now known as Lazer
  Aptheker Rosella &amp; Yedid P.C.
  in Melville, doing mostly commercial
  litigation law. In 2005,
  she set out on her own, setting
  up shop in East Setauket.  
  
  Having her own practice
  allows her more flexibility and
  the ability to choose which
  clients she wants to work with,
  Toga said. She’s also shifted her
  legal focus to estate planning
  and elder law, where she felt
  she could do the most good,
  Toga said, listening to people,
  educating them about the law
  and helping them solve
  problems.  
  
  “I am not only an attorney,
  but a teacher and a therapist,”
  she said.  
  
  As president of the Women’s
  Bar Association, Toga said she
  plans to reach out to law school
  students and newly admitted
  attorneys to increase membership.
  “Those people are the
  future of our organization,”
  she said.  
  
  The organization has more
  than 250 attorneys and 70 law
  students as members. It offers a
  tremendous support system for
  new attorneys, with opportunities
  for networking and the
  chance to seek advice from more
  experienced attorneys who can
  “reach back and help the people
  behind you advance,” Toga said.  
  
  The bar is also important in
  that it addresses the legal needs
  of women in society on such
  issues as domestic violence, pay
  inequity and job discrimination.  
  
  Toga succeeds Robin
  Abramowitz as president.
  Abramowitz is a partner at
  Lazer Aptheker, where she cochairs
  the firm’s litigation practice
  group and works on matrimonial
  and bankruptcy issues.
  Abramowitz predicts a strong
  year for Toga, who has risen
  rapidly through the ranks of the
  organization.  
  
  “She’s a terrific attorney, very
  organized and very dedicated,”
  Abramowitz said. “She’s already
  off to a running start. She’s a
  person who takes charge. She’s a
  person who volunteers. You know
  that when she takes on a project,
  it’s going to get done. You give it
  to Linda, that’s it, it’s done.”  
    Ross Daly 631.913.4230
ross.daly@libn.com.  
    
download the pdf
    ]]></description><pubDate>Wed, 09 Jan 2008 16:50:48 +0000</pubDate><link>http://www.lmtogalaw.com/publications/a-winding-road-from-biology/</link><guid>http://www.lmtogalaw.com/publications/a-winding-road-from-biology/</guid></item><item><title><![CDATA[Frequently Asked Questions About Litigation]]></title><description><![CDATA[    WHAT IS THE DIFFERENCE BETWEEN A  PLAINTIFF AND A DEFENDANT?    
A plaintiff is the person or  entity that starts a lawsuit. The person or entity against whom the lawsuit is  brought is called the defendant. Generally, the plaintiff must set forth  his/her claims in written form in a complaint. The complaint and a summons must  then be delivered to or served upon the person or entity who the plaintiff is  suing.   

    CAN ANYONE SERVE OR DELIVER LEGAL  PAPERS?    
The person who delivers legal  papers such as a summons and complaint upon a defendant is called a process  server. A process server must be 18 or older and cannot be a plaintiff or a  defendant in the action.   

    CAN I PLACE A LIEN ON SOMEONE’S  PROPERTY IF I HAVE A MONEY JUDGMENT AGAINST THEM?    
The short answer is YES. If you  have a valid New York money judgment against a  person who has an ownership interest in real property in New York, you can file a lien against the  property. The person against whom you have a money judgment is called a  judgment debtor. If the judgment debtor owns ½ of the property and his share is  worth $200,000, your lien cannot exceed $200,000. While placing a lien on the  property does not force the judgment debtor to immediately sell the property,  if and when the judgment debtor does sell the property, all properly filed  liens will be included in a title report. Most buyers and/or their lenders will  require that all liens against the property be satisfied at the time the  property is transferred.    

    CAN I SUE SOMEONE WHO DOES NOT  LIVE IN NEW YORK?    
Depending on the basis for your  lawsuit and the extent of the person’s activities in New   York, you may be able to sue the person in New York. If the lawsuit relates to real  property in New York or to an accident that  occurred in New York, you can bring the action  in New York.  In addition, some lawsuits can be commenced in New York  against non-New York residents if they had  significant contact with New York.  The decision about where to commence a lawsuit should be made on a case by case  basis.   
  Back to the   "FAQ's"   Index  ]]></description><pubDate>Wed, 26 Dec 2007 14:06:20 +0000</pubDate><link>http://www.lmtogalaw.com/faqs/frequently-asked-questions-litigation/</link><guid>http://www.lmtogalaw.com/faqs/frequently-asked-questions-litigation/</guid></item><item><title><![CDATA[Frequently Asked Questions about Real Estate]]></title><description><![CDATA[
    CAN  I STOP PAYING RENT IF MY LANDLORD REFUSES TO MAKE NEEDED REPAIRS TO MY  APARTMENT?     
  Most leases state that the tenant  is required to continue making rent payments even if the landlord is in default  under the lease. If your lease contains a provision like this, and requires the  landlord to make certain repairs, your only option in the event the repairs are  not being made is to bring the landlord to court to enforce the lease. If you  stop paying the rent, the chances are that the landlord will bring you to court  to evict you from the premises for failure to pay your rent. 
  



    IF  I USE PROPERTY FOR MANY YEARS, DOES IT BECOME MINE?    
Whether  property that you have used for many years becomes yours as a result of  “adverse possession” depends on a number of factors, including whether you  believed the property was yours when you started to use it, whether your use of  the property was noticeable, whether you were the only one using the property  during the period in question and whether the record property owner allowed you  to use the property. In order to obtain title to real property through adverse  possession, a court must determine that your use of the property satisfies the  law.   

    SHOULD  I RETAIN AN ATTORNEY TO ASSIST ME WITH THE SALE  OF  MY HOUSE?    
Even if you are not a first time  seller, you should retain an experienced real estate attorney to represent your  interests and to protect your rights. The seller’s attorney generally drafts,  negotiates and finalizes the contract of sale.   She also reviews the brokerage agreement, escrows the down payment for  the seller, and coordinates site visits with the surveyor, appraiser or other  professionals who need access to the premises.   The seller’s attorney represents the seller’s interests in the event  issues arise in connection with the buyer’s title search, including questions  concerning certificates of occupancy, easements, property line deviations and  outstanding liens on the property. The seller’s attorney can provide the seller  with an estimate of his closing costs and generally determines how the proceeds  of the sale will be disbursed. In other words, the attorney obtains and  confirms the “pay off” amount on the seller’s existing mortgage and calculates  the adjustments to the selling price that must be made to account for prepaid  taxes, fuel and/or personal property that may be included in the sale.  The attorney must also calculate the transfer  tax due on the sale and prepare the necessary tax and reporting forms. The  seller’s attorney prepares the deed and all other closing documents on behalf  of the seller and schedules the closing.   Finally, the seller’s attorney attends the closing where she reviews all  relevant documents, supervises the execution of all documents by the seller and   insures that proceeds of the sale have  been properly dispersed. Following the closing the attorney generally prepares  a closing statement for the seller.   

    WHAT  IS TITLE INSURANCE?    
Title insurance is an insurance  policy that protects the homeowner against title defects to real property that  arise from errors or omissions in deeds, mistakes made in land records, liens  and undisclosed heirs. The prudent buyer should retain a title company to  prepare a report on the ownership history of the property. Any liens, judgments  and gaps in the “chain of title” that appear in the report should be addressed  before closing. Once they are resolved, the title company will issue a title  insurance policy that guarantees that the property has clear title. The  insurance company is obligated to defend the homeowner against covered claims  arising after the closing. Without title insurance, it is the obligation of the  homeowner to defend against claims based upon title defects.    

    AS A RENTER, AM I PROTECTED IN  THE EVENT MY LANDLORD'S MORTGAGE GOES INTO FORECLOSURE?    
While you may have to move if  your landlord is unsuccessful in defending against an action to foreclose his  mortgage, you likely will have at least 3 months and perhaps as much as a year  from the time you receive a copy of mortgage foreclosure papers before you have  to leave. When a lender commences a foreclosure action, it must give notice to  all residents of the property. Even if you have a lease, if the landlord loses  the court action and the lender does not want you to honor that lease, you will  be forced to leave.   

    HOW SHOULD MY NAME APPEAR ON THE  DEED WHEN I PURCHASE PROPERTY?    
How your name appears on a deed  will depend on whether or not you are purchasing the property alone. If you are  going to be the sole owner of the property, which means you alone can sell or  mortgage the property, your full legal name should appear as the grantee on the  deed. If you are purchasing the property with a spouse, both your name and your  spouse’s name should appear on the deed as grantees, followed by the words “as  husband and wife” or “as tenants in the entirety”. If you are purchasing the  property with another person who is not your spouse, and your intent is that  the property will pass to the survivor upon the first owner’s death, your name  and the co-buyer’s name should appear on the deed as the grantees, followed by  the words “as joint tenants with right of survivorship.” Finally, if you are  purchasing the property with others and each buyer is simply going to own a  specific percentage of the property, the deed should list the names of all of  the buyers as grantees, followed by the words “as tenants in common.”  To avoid any confusion, the percentage share  owned by each grantee should be indicated on the deed.  

    WHAT IS A QUITCLAIM DEED?    
A quitclaim deed is a deed by  which a seller or grantor transfers property to a buyer or grantee without making any warranties  or giving guarantees about the grantor’s ownership interest in the property. When a buyer accepts a quitclaim deed, he cannot be sure that the seller actually owned the property or had the authority to sell it.  




    WHY SHOULD A BUYER ARRANGE FOR A SURVEY?    
A survey is a drawing of property  that shows any improvements to the property such as buildings and driveways, the  boundary lines of the property and the existence of easements and encroachments  on the property, if any.  Depending on  the fee charged and the needs of the buyer, a licensed surveyor may certify  that the improvements on the property fall within the property boundary lines  and comply with applicable laws.  If the  surveyor identifies easements or encroachments, the buyer or his attorney  should address any issues that arise as a result of the easement/encroachment.  If the seller has a recent survey, the buyer may be able to avoid or minimize  the cost of having a new survey done by having the surveyor “recertify” the  seller’s survey.  

    WHAT IS AN EASEMENT?    
An easement is an interest in  land, such as the right of an individual to cross over his neighbor’s property  to reach a beach or a street. The property that is burdened, i.e.: being  crossed over is called the servient estate. The property owned by the  individual with the right of access is called the dominant estate.  An easement may last forever and may prevent the  owner of the servient estate from building on or altering his property in such  a way as to impair the rights of the party who holds the easement.     

    WHY IS IT IMPORTANT THAT BUYERS KNOW ABOUT PROPERTY TAXES?    
  It is important that buyers learn  about the property or real estate taxes on the residence they are thinking  about purchasing because the taxes could be the factor that makes the  difference between being able to afford the house and the house being beyond  the buyer’s means. For example, at the closing the buyer is often required to  reimburse the seller for prepaid property taxes and to give the lender a  portion of the taxes that will come due after the closing. It is not at all  unusual for the buyer to pay thousands of dollars in taxes at the closing, in  addition to all the other closing costs and the balance of the purchase price.  If the buyer does not inquire about the taxes, he may not be in a position to  close. Just as the taxes due at closing  may be more than the buyer is able to afford, the portion of the annual tax  bill that is often included as part of the monthly payment demanded by the  lender may put a house beyond a buyer’s reach. Before purchasing a house the  buyer must consider the impact of real estate taxes on the carrying costs of  the house.  

    HOW ARE PROPERTY TAXES  CALCULATED?    
Taxes are assessed based on a  formula developed by the municipality in which the property is located.  Some towns assess taxes based on the market  value of the property while others assess the property based on a number of  factors, including but not limited to the location of the property (i.e.:  waterfront as opposed to being adjacent to railroad tracks), the size of the  lot, how the property is zoned and whether or not it is improved. If property is  improved with a residence, additions or improvements to the residence may  result in an increase in real estate taxes.  

    HOW OFTEN ARE PROPERTY TAXES  RECALCULATED?    
How often property is assessed  varies from place to place. Some municipalities reassess property every time it  changes hands. This results in similar properties being assessed differently  based solely on how many people have owned the property rather than on  attributes of the property itself.  Other  municipalities periodically reassess all of the properties within their  borders, even if there has not been a change of ownership. Still other  municipalities reassess properties every time an owner improves the property.  As mentioned above, it is not unusual for a homeowner’s taxes to increase  following the addition of a bathroom or the renovation of a kitchen.  

    WHAT FACTORS ARE CONSIDERED WHEN  CALCULATING PROPERTY TAXES?    
Property taxes vary depending on  the location of the market, the zoning of the properties, the affluence of the  area, whether the property is improved i.e.: whether there is a building on the  property, the needs of municipality and whether the municipality has a large  commercial tax base. Owners in municipalities that have large shopping centers  or a number of industrial parks, for example, generally have lower real estate  taxes than owners with comparable properties in municipalities that are mostly  residential. Within a market, property taxes will vary based on the type and  frequency of reassessments.  Taxes also  vary depending on the factors mentioned above in the explanation of how often  property taxes are recalculated.  

    WHAT CAN I DO IF I THINK MY TAXES  WERE CALCULATED INCORRECTLY?     
A property owner who believes his  assessment is incorrect, i.e.: too high, generally has a limited time each year  during which he can “grieve” or dispute his assessment. Municipalities have  different procedures that must be followed by an owner if he wants his  assessment to be reconsidered. There are also companies that the owner may  retain to handle the request for a new assessment.  
  Back to the   "FAQ's"   Index  




]]></description><pubDate>Wed, 26 Dec 2007 13:52:53 +0000</pubDate><link>http://www.lmtogalaw.com/faqs/frequently-asked-questions-real-estate/</link><guid>http://www.lmtogalaw.com/faqs/frequently-asked-questions-real-estate/</guid></item></channel></rss>