New Jersey Probate Lawyer E. Gregory M. Cannarozzi - Probate Law
- Estate Planning
- Estate Administration (Probate)
- Wills
- Wills Contest Litigation
- Trusts
- Probating Estates
- Real Estate Trust Litigation
- Real Estate and Family Dispute Resolution
- Beneficiary Representation
- Powers of Attorney
- Guardianships
- Tax Planning
- Charitable Trusts
- Family Limited Partnerships
- Medical Directives
- Testamentary Trusts
- Estate Litigation
Probate is the legal process of transferring property following a person's death. Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes his or her intentions as to the transfer of his or her property at the time of his or her death (typically through a Will) after which his or her property is collected, certain debts are paid from the estate, and the property is distributed as accordingly specified.
A Will is a written instrument containing directions on how the assets and property of the testator (individual creating the Will) shall be divided upon his or her death. Wills can also contain instructions regarding the care of minor children, gifts to charity, and formation of posthumous Trusts. In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses, and he or she must be mentally competent and not acting under duress or under the controlling influence of another. For more information related to Wills, contact probate lawyer E. Gregory M. Cannarozzi.
A Will Contest is a type of litigation that challenges the admission of a Will to probate. Issues that are likely to spur the contesting of a Will include:
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the testator lacked mental capacity, i.e. was senile, delusional, or of unsound mind at the time the documents were created
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the testator was subjected to fraud, coercion or undue influence during its creation and implementation
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there are ambiguities in the document, or
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the Will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.
Trusts are estate-planning tools that can replace or supplement Wills, as well as help manage property during life. A Trust manages the distribution of a person's property by transferring its benefits and obligations to different people. There are many reasons to create a Trust, making this property distribution technique a popular choice for many people when creating an estate plan.
Estates are categorized as probate or non-probate property. Probate property is property that is transferred by the provisions of a Will. Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a Trust.
In addition to these practice areas, probate Attorney E. Gregory M. Cannarozzi also handles matters related to:
- Municipal Law
- Traffic Violations
- Personal Injury Law
- Employment Law
- Civil Rights Law
- Social Security Appeals
Real Estate Trust:
One of the purposes a real estate trust (RET) is to preserve a home or other real estate interests and transfer them to another party. Holding title to property in a real estate trust helps ensure that your wishes for the orderly transfer of property are carried out. In the absence of an RET, property can unintentionally transfer to a spouse or other party.
Properly structured, some of the benefits of having a RET include asset protection privacy, avoiding guardianship of the property if you become incapacitated, and ease of assigning an interest in real estate. Further, without changing public records alternate and successor trustees can be appointed if the Trustee ceases to act. In addition, Living Trusts allow Trust property to pass directly to beneficiaries without the necessity of going through probate process.
Marital Issues: Sometimes ownership and control of real estate is at the heart of family legal disputes. In the case of a divorce, marital property acquired during marriage utilizing marital assets, regardless of whose name it is under is subject to equitable distribution between the husband and wife. Marital property can include real estate (including a home bought in contemplation of marriage), pension plans, vehicles, bank accounts, income tax refunds and/or household furnishings.
However, property that is inherited by one spouse and not comingled with marital assets is usually not considered marital property. If you are contractually jointly bound with your ex-spouse on a debt, a creditor can require the entire payment of the debt from your share of the marital property even though the divorce decree assigns the debt to your ex-spouse. Depending on the terms of your divorce decree, you may be obligated to pay certain support obligations under the divorce decree that are not non-dischargeable in a bankruptcy proceeding or otherwise.
Beneficiary Representation:
If you are a beneficiary of a trust or estate, the machinery of receiving your full and intended share may work smoothly. However, there is a chance, however, that you will need legal representation to assure, protect and safeguard your rights and ensure that the wishes of the Grantor of the Trust or decedent are carried out.
Sometimes a complicating factor in this process is vague and unclear wording in a Last Will and Testament or other estate planning document. At other times the issues may arise with an Executor or Trustee who may not be fulfilling his or her legal responsibilities and duties. An Executor or Trustee is required to administer an estate in accordance with certain legal and procedural guidelines. He or she is also responsible to keep you informed as to the administration of the estate. In fulfilling his or her fiduciary duties all actions taken are reasonably required to be in the best interests of the beneficiaries. If you are an aggrieved person, it is important to bring such issues before a court as soon as possible, as statutes of limitation apply. This is true in the case of both probate and non-probate estates and trusts.
Power of Attorney:
A Power of Attorney is a document utilized in cases where one person has to act on another's behalf to conduct their business or personal affairs.
It is very important in the event that a person becomes incapacitated either mentally or physically and is incapable of carrying out their personal and business affairs.
In that event of alleged mental incapacity, there has to be a legal proceeding and hearing in order to adjudge the person as incompetent. The Court in its sound discretion appoints someone to represent and make legal decisions for the incapacitated person.
A properly drawn Power of Attorney can avoid this type of proceeding.
Also to be considered are living wills and/or medical directives which relate to health and medical treatment issues that might arise.
Estate Planning:
Estate planning may involve more than just a simple Will, depending upon your personal desires and financial circumstances. Proper Estate Planning addresses your particular lifetime needs and testamentary desires in the context of your best interests having first priority. Some of the areas to be considered include but are not limited to establishment of living and testamentary trusts, minimization of Federal and State taxes, transfers of real and personal property, transfers or sale of business interest and Powers of Attorney both general and limited, Living Wills and Medical Directives and the like.
Also Estate Planning includes assuring, that the implementation and structuring of the necessary documents do in fact accomplish what you want done and the caretaking of beneficiaries that you determine is their best interests.
Federal Estate and State Inheritance & Estate Taxes:
As a general rule the amount of your assets, your degree of control of assets, gifts or transfers within 3 years of the date of your death having monetary value in excess of the allowable exemptions you or your Estate may be subject both Federal and State taxes.
Federal Estate Tax & Gift Tax:
The Federal Government will tax you or your Estate if the monetary value is more than the applicable exclusion and exemption amounts for gifts or Estate assets in excess of the exemption amount for the year of death.
Although certain studies have shown that only that only 2% of all Estates are subject to Federal Estate Taxes, it is in your best interest to determine if you are in that category since the tax rates are substantial.
State Inheritance and Gift Taxes:
Depending on the State where you permanently live and reside or where your real property is located, you may be subject to an Inheritance Tax, an Estate Tax or both. Again, it is in your best interest to determine if you are in that category since the tax rate can be substantial.
Possible Estate Planning Strategies
Depending on your circumstances, goals and desires some other estate planning documents and tools that may be employed are: General and Limited Powers of Attorney, Family Partnerships, Irrevocable Trusts, Revocable Trusts, Life Insurance Trusts, Disclaimers, Powers of Appointment, Lifetime Gifts, Charitable Trusts and the like.
Lifetime Planning:
There are a class of documents sometimes described as Advance Health Care Directives, Advance Directives, Living Wills, Medical Proxies, Health Care Proxies and documents bearing similar names.
All to often people become fixated on what will happen to their assets upon their demise and ignore taking care of themselves while they are alive. Essentially the purpose of these documents are to direct what course of action is to be followed in the event for what ever reason they can no longer make health decisions for themselves.
Generally, they fall into three categories, (1) direction(s) and expression(s) to all concerned parties with their medical treatment as to what treatment is to be rendered or withheld, (2) A direction and authorization empowering a third party to act on there behalf or an integration and combination of both.
Needless to say that when a person is not longer capable in making their own health decisions, third party conflicting opinions abound. The utilization of these types of documents carries out the exact wishes and desires of the person involved. It avoids disharmony, disputes and discord between caretakers.
Guardianships:
Generally, in the event a person is incapable of taking care of himself or herself with respect to financial affairs due to, infancy, mental or physical incapacity, abuse or domestic disputes a Guardianship Proceeding or Conservativeship may be required.
Upon proof of the foregoing, a Court has the power to act on behalf of an adjudged incompetent and will appoint a Guardian of the incompetent person's property, Guardian of the incompetent's person or both.
The Guardian appointed fulfills the ward's needs and protects the Ward's personal well-being and financial interests.
The Court also has the power to limit and structure the appointments as circumstances dictate.
Living, Testamentary, Revocable and Irrevocable Trusts:
Trusts come in all sorts of shapes, sizes and kinds and have a myriad uses and purposes.
The best analogy to use is that they are custom made suits that are tailored to meet an individuals needs, desires and personal circumstances. They can be valuable and useful planning tools that are not to be summarily dismissed or ignored. There purposes can be severally restricted or alternatively broad and extensive as in a Trustee being able to decide at its sole discretion what is necessary for another person's care, comfort, support, maintenance, health, education and well-being.
Estate Litigation:
Increasingly, over the years, litigation involving Estates, heirs, relatives and beneficiaries has increased.
Factors prompting this sort of activity are changes in societal practices and morays, estrangement of family units and members, greed, jealousy, undue duress, coercion and the ravages of time on people living longer.
Other contributing factors also include, Documents inappropriate for the decedent's personal and financial circumstances and imprecise, ambiguous and inapplicable documents.
Nowadays, it is not only imperative that you have a suitable Estate Plan but also the practices and procedures as required by Law must be strictly followed in the implementation and the execution of these documents.
If you or someone you know in the New Jersey or New York Metropolis needs the assistance of an experienced probate lawyer, contact Attorney E. Gregory M. Cannarozzi of the Law Office of E. Gregory M. Cannarozzi at 866-264-7710 or complete his contact form to begin a free consultation with an experienced New Jersey probate lawyer.
