Linda Stravalaci Grear’s Answers

Linda Stravalaci Grear

Getzville Estate Planning Attorney.

Contributor Level 6
  1. Under NY laws after my death would my wife be forced to pay off my student loans that were incurred before marriage

    Answered about 6 years ago.

    1. Linda Stravalaci Grear
    2. Alexander Korotkin
    2 lawyer answers

    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...

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

    Answered almost 2 years ago.

    1. C L Huddleston III
    2. Linda Stravalaci Grear
    2 lawyer answers

    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...

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

    Answered about 2 years ago.

    1. Linda Stravalaci Grear
    1 lawyer 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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  4. Estate planning under NY state law for terminally ill person

    Answered about 6 years ago.

    1. Linda Stravalaci Grear
    2. Stephen Jay Silverberg
    2 lawyer answers

    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...

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

    Answered over 5 years ago.

    1. Linda Stravalaci Grear
    2. Edward Joseph Smeltzer II
    2 lawyer answers

    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).

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

    Answered over 5 years ago.

    1. Linda Stravalaci Grear
    2. Michael Hassen
    2 lawyer answers

    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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