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 generally is the legal process whereby the real and personal property owned by the Decedent is transferred to another. Essentially the initial step is to authenticate the writing as the Decedent's Last Will and Testament. If the Will appoints an Executor the person named then has to qualify for the office. Thereafter, the Surrogate issues Letters Testamentary which is the written authorization for the person to lawfully act on behalf of the Estate. The Executor then inventories all of the assets owned by the Decedent and identifies all debts. Once this is accomplished s/ he pays any taxes, debts an expenses incurred during administration of the Estate, renders an accounting to the heirs named in the Will and then distributes the assets in accordance with the terms and provisions of the Will.
If the Decedent dies "intestate" (without a Last Will and Testament) the Court will appoint a person to lawfully act on behalf of the Estate. That person is called an Administrator. The person named then has to qualify for the office. If s/he qualifies then the Surrogate issues Letters of Administration which is the written court authorization for that person to lawfully act on behalf of the Estate. The Administrator then inventories all of the assets owned by the Decedent and identifies all debts. Once this is accomplished s/he pays any taxes, debts and expenses incurred during administration of the Estate, and renders an accounting to the heirs. The heirs are those persons entitled to inherit as defined by State Law (Intestacy Statutes)
A Will is a written instrument containing directions on how and when the Decedent's assets are to be distributed upon his or her death. Wills can also contain a variety of other directives such as: naming a Guardian to take care of a minor's person and property; creating a trust known as a "testamentary trust for the benefit of third parties", or creating a trust for an individual's unique medical/physical circumstances, known as a "special needs trust". In order for a Will to be legally valid, it must meet certain statutory requirements such as: signing the Will in the presence of two or more witnesses; being mentally competent; not acting under duress or under the controlling influence of another. For more information related to Wills, contact probate lawyer E. Gregory M. Cannarozzi.
Contesting a Will is the process whereby an aggrieved person challenges: the form of the Will, as in failing to fulfill the statutory requirements regarding the execution of a will; or, the validity of the writing; and/or the competency of the Decedent at the time the writing was executed. Issues that are likely to spur the contesting of a Will include but are not limited to the Decedent's lack of mental capacity, i.e. was senile, delusional, or of unsound mind, intoxicated, or under the influence of legal or illegal drugs; fraud, coercion or undue influence during its creation and implementation, thus creating ambiguities in the document itself.
Trusts are estate-planning tools that can replace or supplement Wills, as well as help manage property during life. The person who manages the Trust is called a Trustee. The Trustee follows the mandates of the Trust in making the distribution of a person's property by transferring its benefits and obligations to different people either through payment of income or payment of principle. There are many reasons to create a Trust, making this property distribution technique a popular choice for many people when creating an estate plan.
The assets of a Decedent's Estate are categorized as probate or non-probate property. Probate property is property that is solely in the name of the Decedent that is to be transferred by the provisions of a Will. Non-probate property is property that is either jointly held or passes by operation of Law. For instance, a right of survivorship in a Deed, or when an individual is named specifically by the Decedent to be the beneficiary of e.g. an IRA, or a life insurance policy, or when property passes according to the terms of a Trust created by the Decedent before death.
Real Estate Trust:
One of the purposes a real estate trust (RET) is to preserve a home or other real estate interests and transfers them to another party. Holding title to property in a real estate trust helps ensure that one's 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 commingled 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.
As related to spousal death, in certain jurisdictions being a surviving spouse does not automatically entitle the surviving spouse to acquire all of the assets that were in the Decedent's name alone where there are surviving children of the Decedent and there is no Last Will and Testament. As an example, a surviving spouse may only be entitled to one half of the Decedent's assets and the children of the Decedent the other half. It is to be noted that this does not mean only "children" born of the marriage between the Decedent and the surviving spouse. They include" children" born of other marriages, adopted and acknowledged persons. Further," children" include both adults and minors.
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, that you will need legal representation to assure, protect and safeguard your rights, obtain an accounting for all of the Trustee's financial activities, compel distribution of income or corpus and insure 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 in another estate planning document. At other times 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. An Executor and Trustee must invest Estate Assets and securities, as a reasonably prudent person would do. Failure to do otherwise may expose the Executor to liability or removal as a fiduciary. S/he 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 (the agent) has to act on another's (the principal) behalf to conduct the principal's business or personal affairs.
It is very important to have a Power of Attorney in place in the event that a person becomes incapacitated either mentally or physically and is incapable of carrying out his/her personal and business affairs.
In the 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.
Traditionally Powers of Attorney only addressed financial issues. However, good practices should include among other matters the right to consent to medical treatment, the right to have access to and receive medical reports and records, and the right to obtain information that would otherwise be precluded by financial privacy laws. Consideration should also be given to name a successor person to have the power to act in the event the initially named agent cannot act.
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 (HIPPA) issues that might arise.
Estate Planning:
Estate planning may involve more than just a simple Will, depending upon one's personal desires and financial circumstances. Proper Estate Planning addresses one's 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.
Every person's circumstance is different and must be treated as such.
As Lincoln proclaimed, " the man who tries to be his own lawyer has a fool for a client".
Worse than that, he risks incurring very substantial legal fess to correct and mend his errors.
Also Estate Planning includes assuring that the implementation and structuring of the necessary legal documents do in fact implements what one wishes to accomplish such as for the caretaking of the best interests of named beneficiaries.
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.
It is to be noted that Congress is currently considering the enactment of new Federal Estate Tax Laws and this situation should be given due deference.
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.
It is also very important that if you have dwellings in several States that a "domicile" be established. If a "domicile" is not clearly established or is questionable an estate can be subject to double taxation or taxation by two or more states depending upon the particular circumstances.
Possible Estate Planning Strategies
Depending on your goals, desires and circumstances 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, Spendthrift Trusts, Special Needs Trusts and the like.
Lifetime Planning:
There is 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 (3) 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. The Court may require that Fiduciary Bond(s) be posted which can become very expensive as premiums must be paid annually.
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 in 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.
RIGHTS TO CONTROL FUNERAL, DISPOSITION OF HUMAN REMAINS:
With the advent of multiple marriages and divorces, sibling rivalry, children born of different marriages and societal changes in practices and morays there often arises the situation of " who has the lawful authority to arrange wakes, funerals, burials, interments, cremations"? Additionally, who is entitled to possession of the remains of a Decedent or disposal thereof? State Statute generally sets forth these determinations.
A person in a Last Will and Testament can appoint a person to control the funeral and dispose of the Decedent's remains. The appointed person need not be the Executor. The current reality is that more often than not it is neither accomplished nor considered.
In some instances this can lead to litigation, cause unnecessary vendettas, fights, (physical and otherwise), name calling, emotional trauma, strain, distress and pain between and among the surviving spouse, children siblings, relatives, friends and current and past domestic partners.
In New Jersey, for instance, State Law sets forth the chain of authority that would apply in this instance:
If the Decedent did not provide otherwise, the funeral as well as the disposition of human remains shall be in the following order, unless a Court of competent jurisdiction provides otherwise:
- The surviving spouse of the Decedent or the surviving domestic partner.
- A majority of the surviving adult children of the Decedent (note includes children from former marriages)
- The surviving parent or parents of the Decedent
- A majority of the brothers and sisters of the Decedent (note includes half brother and half sisters)
- Other next of kin of the Decedent according to the degree of consanguinity.
- If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the Decedent.
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.
