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Linda Stravalaci Grear

Linda Grear’s Answers

6 total

  • Does a daughter or son have legal rights to their father's ashes if his girlfriend paid for the funeral?

    Insurance policy for her son was purchased and paid for by his mother, Somehow beneficiary was transfered from the mother to the girlfriend's name. So girlfirend made all funeral arrangesment without regard to his children (from previous marria...

    Linda’s Answer

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    Unless the decedent left a valid legal document (such as a Last Will and Testament or a Disposition of Remains) designating who shall control his cremated remains, New York’s Public Health Law Section 4201 addresses the matter. By statute, the priority to control the cremated remains of a decedent is as follows: surviving spouse, formal domestic partner, surviving adult children, surviving parents, etc… Unless the girlfriend can prove they were formal domestic partners, she would not have priority to control the cremated remains. The statute defines domestic partner. and it can include a person who was dependent or mutually independent on the decedent for support (including but not limited to a common household, shared income and shared expenses).

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  • Legal document to get temporary guardianship of my grandson in the event something should happen to his mother (my daughter)

    My grandson is three...his father is currently serving 18 months in jail. I would like legal documentation that would give me temporary guardianship of my grandson in the event something happens to my daughter (should she become hospitalized, etc...

    Linda’s Answer

    In New York, the natural parents are required to receive notice and service of process in infant guardianship proceedings pursuant to Surrogate’s Court Procedure Act Section 1705(a); however, service of process is not required if a parent has abandoned the child or if the parent has been deprived of custody by court order. Abandonment is usually defined as the parent’s failure to support the child or to maintain contact.

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  • Does NY state take a percentage in an estate where there is no will? I am the only child, my mother is a widow.

    My mother was a bit reclusive, I don't know if she paid her taxes in the past 5 years. She had two homes, neither of which are liveable. I am told by my uncle she had at least 2 term life insurance policies, but cannot find any paperwork for them

    Linda’s Answer

    No, New York State law prescribes who receives the proceeds of an estate (in your example, you would be the sole recipient of your mother's estate which would include anything she held in her name alone) where there is no will but the state takes no percentage (other than estate taxes if due). In your example, the life insurance proceeds pass directly to a named beneficiary (NY State law has no impact on this).

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  • I have been asked to appear at a hearing as a witness to a will. What happens if I fail to attend?

    I witnessed a last will and testament of a friend while he was in the hospital, and now I'm being asked to appear at a hearing regarding same.

    Linda’s Answer

    The examination / questioning / testimony of the attorney-draftsperson and the witnesses of a Last Will and Testament is customary in contested probate proceedings.

    If you are unavailable on the specific date and time of the hearing, you can contact the attorney for the estate and/or the Court directly and request an adjournment to another date. If you have been subpoenaed to appear as a witness and you fail to appear, you can be held in contempt of Court and fined.

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  • Estate planning under NY state law for terminally ill person

    My father was recently diagnosed with terminal cancer and given approximately six months to live. I am concerned that we don’t have everything in order to make the process of handling his estate go as smooth as possible. Here are the facts: my f...

    Linda’s Answer

    Sorry to hear about your father's illness.

    This can be a tricky situation given (1.) the separation of spouses and (2.) the mortgaged property.

    First, New York State statute does not allow a decedent to disinherit a spouse (still considered spouses until legally divorced) without the written and acknowledged waiver by the surviving spouse. Therefore, Dad cannot leave everything to children unless Mom consents in writing. Even if Dad does a new Will to disinherit Mom, that will not be enough without a waiver by Mom.

    Second, probate proceedings only govern assets held in the decedent's sole name; therefore, assets owned by a trust or joint owners are not subject to probate (although they may be subject to the surviving spouse's claim). A trust could work to convey title ownership and avoid probate, but, trusts can be expensive. A cheaper and easier way would be to have Dad execute a Deed conveying his interest in the real estate to the children before he dies. That would avoid probate following Dad's death because the children would already own the real estate; HOWEVER, you need to keep in mind that the real estate is still subject to a mortgage and the conveyance of real estate from Dad to any person or a trust could violate the terms of the mortgage, causing the loan to be called due and payable. If a mortgage refinance is completed, all title owners would have to apply for the new mortgage. If Dad conveyed the property to 2 kids, both kids would have responsibility for the mortgage.

    Third, Dad should make sure he signs a Durable Power of Attorney and Health Care Proxy / Living Will so that he may appoint an agent to handle his affairs when he is no longer able to do so.

    Durable Power of Attorney: A Durable Power of Attorney is a legal document in which you appoint an agent to make financial decisions on your behalf during your lifetime in the event you become incompetent or disabled. A Durable Power of Attorney often avoids the necessity of costly and protracted guardianship proceedings. A Durable Power of Attorney terminates upon your death.

    Living Will/Health Care Proxy: A Living Will/Health Care Proxy is appropriate for anyone who is concerned about being kept alive in an unconscious or vegetative state when there is no reasonable likelihood of recovery. A Living Will allows you to document your wishes concerning treatment in the event you become terminally ill while a Health Care Proxy allows you to designate an agent to make health care decisions in the event you are unable to do so.

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  • Under NY laws after my death would my wife be forced to pay off my student loans that were incurred before marriage

    If I died, would my wife be forced to pay off school loans I incurred before marriage?

    Linda’s Answer

    The loans would be debts of the deceased person’s estate. As long as the surviving spouse did not personally obligate himself / herself to re-pay the student loans (i.e. sign a promissory note), the surviving spouse does not have a personal obligation to use his/her own assets to re-pay the loans. However, the assets of the deceased person’s estate would need to be used to re-pay the debt.

    An estate’s fiduciary has an obligation to identify and marshal the assets of the deceased person’s estate and determine if the estate probate assets are sufficient to pay all debts, expenses and/or claims. If there are not sufficient assets to pay the expenses, debts and claims, the estate is “insolvent.” In that case, the fiduciary must pay the claims in the order of preference set forth in NYS Surrogate’s Court Procedure Act §1811.

    Generally, the priority for payment preference of an estate is:
    1. Exemption set-offs for the surviving spouse or minor children (some cash and personal items are exempt for the family);
    2. Reasonable Funeral expenses;
    3. The ordinary and necessary expenses of administration of the estate;
    4. The secured debts of the deceased person;
    5. The unsecured debts of the deceased person (usually, student loans would fall into this category).

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