By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Guardianship Attorney
I was recently asked a question about the title of this blog wherein the Judgment of Incapacity and Appointment of Guardian did not have a specific provision authorizing the Guardian of the Estate of an incapacitated person to complete a beneficiary designation form for the person’s inherited IRA.
In this case, the person had no estate plan and he inherited a substantial account from his predeceased spouse but now he was incapacitated.
The judgment approving the guardianship did not specify an estate planning power for non-probate assets. In my research, I cannot find any broad power which permits a guardian to designate beneficiaries. In one case I read, N.J.S.A. 3B:12-48 , a bank apparently accepted the beneficiary designation form submitted by the Guardian but when the ward died, it then required a “consent and hold harmless” agreement from the beneficiaries, who are all heirs at law because it cannot determine if the Guardian was authorized to execute the beneficiary form. The bank wants this Release, Indemnification from Consent from anyone who might be adversely affected by the beneficiary designation. This includes the IRA intestate heirs at law.
A Release and Indemnification Agreement covers the possibility that there’s a Will that leaves the decedent’s estate to persons other than the heirs. It also covers the possibility, however slight, that there might come a time when the IRA owner has testamentary capacity and signs a new Will.
Note that different financial institutions have different default provisions if an account owner doesn’t designate beneficiaries. Some default to the spouse, or if none, then to their children, or if none, then to their estate.
To discuss your NJ Guardianship, Power of Attorney and Probate Estate Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at email@example.com. Please ask us about our video conferencing consultations if you are unable to come to our office.