<?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[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><item><title><![CDATA[WHAT IF A BENEFICIARY DIES BEFORE ME?]]></title><description><![CDATA[    This article first appeared in the December 8, 2011 issue of the Times Beacon Record Newspapers.  

    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. In an effort to determine if Frank had any other possible heirs, I hired a private investigator who located a great niece (John’s granddaughter) named Mary.      

    The Question:   Is Mary entitled to share in Frank’s estate or am I in line to inherit the entire estate?  
 
    The Answer:   Fortunately for you, there is an anti-lapse statute in New York which is applicable to your situation. Under the statute, you are the sole beneficiary of Frank’s estate.  

    How it Works:   In order to explain how the anti-lapse statute works, you need to understand the terminology used in the statute. The “testator” is the person whose Will is being probated. The people who receive assets under the terms of the Will are “beneficiaries”. “Issue” refers to the children, grandchildren and successive generations of individuals who can trace their blood line directly back to the testator. A “bequest” is a gift that is set forth in a Will. When a bequest “lapses”, the Will is read as if the bequest was never made and any assets set forth in the bequest are distributed to other beneficiaries.   

  The New York anti-lapse statute is designed to prevent the lapse of bequests made to certain groups of people. The statue governs when a testator makes a bequest in his Will and the beneficiary dies before the testator. If the deceased beneficiary is someone other than the testator’s own issue or siblings, the bequest lapses and the Will is read as if the bequest was not made. For example, if Frank made a $50,000 bequest in his Will to a friend and the friend died before Frank, the $50,000 bequest would lapse and the funds would not go to the friend’s children but, would go to other beneficiaries under the Will. If, as is the situation here, the testator makes a bequest to a sibling and the sibling dies before the testator, the bequest does not lapse. Instead, the bequest vests in the issue of the beneficiary. In other words, the assets allocated to the deceased sibling will pass to the sibling’s  children or grandchildren.   

  Since Frank and your mother were siblings, and your mother died before Frank, the bequest made to your mother will pass to you. However, if both your mother and John were mentioned in the Will as beneficiaries, Mary would, in fact, be entitled to a share of Frank’s estate since the anti-lapse statute would dictate that the share allocated to John would pass to her.   

  There is often confusion among the beneficiaries of a Will when one of the beneficiaries predeceases the testator. One way to avoid this confusion is to update your Will not only when the people you name as executors and trustees die, but also when a beneficiary dies.  Naming contingent beneficiaries in your Will also helps bring certainty and clarity to the probate process.  

  Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate and litigation from her East Setauket office.   

  
]]></description><pubDate>Wed, 04 Jan 2012 10:39:00 +0000</pubDate><link>http://www.lmtogalaw.com/home/what-if-a-beneficiary-dies-before-me/</link><guid>http://www.lmtogalaw.com/home/what-if-a-beneficiary-dies-before-me/</guid></item><item><title><![CDATA[WHAT IS A &quot;CONVENIENCE&quot; BANK ACCOUNT?]]></title><description><![CDATA[    This article first appeared in the November 10, 2011 issue of the Times Beacon Record Newspapers.   

    The Facts:   My mother opened a joint account with my sister Jane so Jane could pay my mother’s bills. At the time of her death, my mother had $100,000 in the joint account. Jane is claiming that the money in the account is hers since she is the joint account holder. My mother always said she wanted her estate to be divided between all of her children equally. Her Will provides for equal distribution to her four children.   

    The Questions:   Can Jane keep the money in the joint account or must she share it with me and my two brothers?  If she keeps the money, is Jane also entitled to a ¼ share of the rest of my mother’s estate?  

    The Answer:   Unfortunately for you and your brothers, unless you can prove that your mother opened the joint account solely for convenience and not as a means of transferring funds to Jane, your sister will be able to keep the money in the account.  In addition, Jane will be entitled to a ¼ share of your mother’s probate estate.    

  Many elderly parents open joint accounts with their children for the convenience of having someone who can pay bills and access funds when the parent is unable to do so. Since jointly held property like bank accounts are not considered part of a decedent’s probate estate, the funds in such accounts generally do not pass in accordance with the decedent’s Will. As you now know, the ownership of so-called “convenience” accounts can easily become the subject of litigation when a parent dies.   

  If you are unable to appeal to your sister’s sense of fairness and her desire to honor your mother’s wishes, you may have no choice but to seek court intervention to resolve the question of who is entitled to the money in the joint account. The proceeding should be brought in surrogate’s court where you will claim that the joint account was created as a convenience account and that the funds in the joint account are assets of the estate. As the surviving account holder, Jane will likely argue that your mother intended for her to have the money and that the account is not an estate asset. She will base her argument upon the fact that depositing funds into a joint account constitutes prima facie evidence (evidence that seems sufficient at first glance) and a presumption of an intent to create a joint tenancy. In other words, the law states that if someone creates a joint account, it is presumed, at first glance, that they intended the joint account holder to share in the money. When a joint tenancy is created, both joint tenants have unfettered access to use the funds in the account as they please. Upon the death of a joint tenant, the assets in the account automatically become the property of the surviving joint tenant.     

  Although Jane has prima facie evidence creating the presumption that your mother intended to share the money in the account with Jane, such evidence can be rebutted or disproven with contrary evidence. In the context of the litigation you have the opportunity to try to convince the court that the joint account was simply a convenience account. To do so, you must provide the court with direct proof that your mother did not intend to create a joint tenancy or substantial circumstantial proof that the joint account was opened solely as a convenience. Such proof may include a note from your mother about her reasons for putting your sister’s name on the account, a writing from your sister in which she acknowledges that the account was a convenience account or some reference to the account in your mother’s Will which explicitly states that the account is to be considered an estate asset. Testimony from disinterested parties about your mother’s intent with respect to the funds in the account may also be helpful. If you are able to rebut the presumption relied upon by Jane, the court will likely direct Jane to divide the funds in the account into four equal shares and to distribute one share each to you and your brothers. If you do not prevail, Jane will be allowed to keep the $100,000 and to claim her ¼ share of your mother’s probate estate.  

  Keep in mind that the type of litigation discussed here can be avoided if the intent of the parent creating the joint account is well documented and the child whose name appears on the account acknowledges that the joint account was opened solely as a “convenience” and not with an intent to create a joint tenancy.  Proper legal advise is often useful in ensuring such an outcome.   

  Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate and litigation from her East Setauket office.   

]]></description><pubDate>Wed, 04 Jan 2012 10:33:00 +0000</pubDate><link>http://www.lmtogalaw.com/home/what-is-a-convenience-bank-account/</link><guid>http://www.lmtogalaw.com/home/what-is-a-convenience-bank-account/</guid></item><item><title><![CDATA[MONEY JUDGMENT MAY INPACT ON AN INHERITANCE]]></title><description><![CDATA[  This article first appeared in the October 13, 2011 issue of the Times Beacon Record Newspapers.   
    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 though I did not own it when the judgment was obtained? Can the doctor force me to sell the property in order to collect the money I owe him?  

    The Answer:   Unfortunately for you, the answer to both questions is YES. People who obtain money judgments are called judgment creditors and they can collect against the debtor (the person against whom the judgment is docketed) at any time provided the judgment is still enforceable. While the doctor may be able to force a sale in order to collect the amount of his lien, a portion of the value of the house is exempt if you are residing there. In addition, the doctor is only entitled to collect the amount of the debt owed him. If he forces a sale and the proceeds exceed the amount of the judgment lien, you retain the surplus.   

    How it Works:   It is well-settled in New York that immediately upon the death of a property owner, judgments docketed against individuals inheriting the decedent’s real property will attach to that property. The attachment occurs regardless of whether the inheritance is pursuant to a Will or the intestacy statues. In other words, regardless of whether your father died with or without a Will, if you are your father’s only heir, or if he left the property to you in his Will, you immediately became the owner of the property at the time of your father’s death.   

  If the doctor learns of your inheritance, he may commence an action to foreclose on his lien. While he may be willing to negotiate a settlement for less than the full amount of his lien, the doctor can essentially force you to sell the property unless you are otherwise able to satisfy the judgment. As mentioned above, if you are residing in your father’s house, you may be entitled to a homestead exemption for a portion of the proceeds of the sale. The rest can be applied to the doctor’s lien.  If the proceeds are insufficient to satisfy all of the liens, they will remain on record.  

  With respect to the sale, if someone other than you has been appointed as the executor or administrator of your father’s estate, that person has the authority to sell the property even though title vested in you. Regardless of who actually carries out the sale of the property, if it is sold and the doctor’s judgment is not satisfied, the purchaser takes the property subject to the doctor’s docketed judgment lien.   

  Given the fact that the doctor is in a position to foreclose on his lien, you need to take the doctor’s judgment seriously. Ignoring a properly filed judgment lien can easily result in costly litigation.   

  Linda M. Toga, Esq. provides legal services in the areas of real estate, estate planning and litigation from her East Setauket office.   


]]></description><pubDate>Wed, 04 Jan 2012 10:31:00 +0000</pubDate><link>http://www.lmtogalaw.com/home/money-judgment-may-inpact-on-an-inheritance/</link><guid>http://www.lmtogalaw.com/home/money-judgment-may-inpact-on-an-inheritance/</guid></item><item><title><![CDATA[WHAT IS TITLE INSURANCE AND WHY DO I NEED IT?]]></title><description><![CDATA[     This article first appeared in the September 15, 2011 issue of the Times Beacon Record Newspapers.   

    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:   Title insurance protects you in the event other people claim to have an interest in your property after you purchase it. 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 insurance, lenders will not provide financing for the purchase of the property if you do not have a title search done and purchase title insurance.  

    How it Works:   Once you have a fully executed contract of sale for the property you are buying, a title search and title insurance should be ordered from a reputable, licensed title insurance company or abstract company. While both the title insurance company and the abstract company can search the public records for irregularities in the chain of title (the history of who has owned the property in the past) and liens against the property, the title insurance policy you purchase is issued by the title insurance company.   

  Although most purchasers have their attorney order the title search and insurance from a provider of the attorney’s choosing, purchasers have the right to choose the title insurance company with which they wish to do business.  

  Once the public records are reviewed, a title report is prepared that sets forth exceptions to title that must be addressed before the title insurance policy can be issued. An exception to title may be anything from a tax lien or judgment against the property to the placement of a neighbor’s fence inside your property line to a break in the chain of title or an irregularity in a deed. Generally, judgments and liens are paid off at or before the closing and other title issues such as misplaced fences or ownership claims asserted by entities other than the sellers must be resolved to the satisfaction of the title company before it will omit the exception and issue a policy insuring a clean title.   

  Unlike auto or homeowners insurance policies that provide protection from the day you purchase the policy going forward, title insurance protects against losses or claims that arose prior to the date of the policy. Claims that arise after you purchase the property are not covered. For example, if a tax lien is docketed again the property five years before you buy it, and the lien was not uncovered by the title search, the title company is required to indemnify your lender for any losses the lender may suffer. If, on the other hand, a tax lien is docketed against the property based upon your failure to pay real estate taxes after you purchase the property, the title company has no obligation to defend or indemnify the lender. Title insurance   

  Title insurance is paid for at or before the closing and coverage continues indefinitely. There are no annual premiums to pay. If you refinance the property, coverage up to the date of your original closing remains intact but, the title company will require that additional searches be conducted to insure that no title exceptions arose since you first purchased the property.    

  The cost of title insurance is set by statute. However, abstract companies and title insurance companies may set their own fees for searches and other services they provide. In 2010 a new law took effect in New York that requires abstract companies and title insurance companies to collect sales tax on the fees they charge for many kinds of searches and services. Although the sales tax adds to the cost of obtaining title insurance, neither you nor your lender will want to do without the important protection provided by title insurance.  

  Linda M. Toga, Esq. provides legal services in the areas of real estate, estate planning and litigation from her East Setauket office.     

]]></description><pubDate>Wed, 05 Oct 2011 12:56:30 +0000</pubDate><link>http://www.lmtogalaw.com/home/what-is-title-insurance-and-why-do-i-need-it/</link><guid>http://www.lmtogalaw.com/home/what-is-title-insurance-and-why-do-i-need-it/</guid></item></channel></rss>
