A client’s father’s estate is in probate. His son is the personal representative. Dad’s will leaves everything to his two sons (brothers) to share equally. One of the brothers claim they need money now, and they’re pushing the executor to distribute the funds to them now, even though the estate isn’t settled. He has assured the estate’s representative he will give back the money if it’s needed to pay estate’s debts. Can and/or should this request be granted? Unless the estate is small and/or family members are in total agreement, executors should be working with a probate attorney who can advise them before disbursing estate assets. I would be cautious but reasonable about distributing funds before the debts are settled, …
If You Have a Trust, Do You Also Need a Last Will?
If you have a living trust in place, why would a person need a will? The answer straightforward : You need a last will to address what is to be done with any asset that you may have unintentionally left out of your living trust. Some examples of how this could happen: You buy property, (say a house), then die or become incapacitated before you can transfer the property into your trust. You co-own a bank account with someone else with rights of survivorship (say a child). The co-owner predeceases you and you forget to name a new co-owner. Your credit card company returns money to you for a trip that was canceled because of your death and it needs …
Adult Estranged Child Not Entitled to Anything From Parent’s Estate
A client’s late mother and daughter were estranged for years, but she was still shocked to learn mom cut her out of her will and gave her brother everything. The client thinks he poisoned her mind against his sister. Is this legal? Can the daughter sue for her share of mom’s estate? Here’s the Answer Probably not. A parent is not legally obligated to leave anything to an adult child. Moreover, challenging a will is no small task. You must have a legally sound reason, which can include one or more of the following: Undue influence: Was your mother subjected to coercion to make out her will this way? Was it your brother’s idea? Did he select her lawyer, …
New Jersey Medicaid Not Repaid From Third Party Trust
Recently, I met with new clients who are grandparents to many grandchildren, one of which is special needs. I was asked if Medicaid will be able to take whatever funds are left over in the grandchild’s trust if he receives public benefits. They want to create a special needs trust for their grandchild since he is not expected to live beyond 30 and is seriously disabled. They are hoping any money left over at that time can be distributed to their other grandchildren and not taken by the government. Let me be clear with my answer. There will be no Medicaid payback required if you create, fund and establish a special needs trust. In other words, you can fund this …
Should New Jersey’s Department of Motor Vehicles Be Alerted to An Aging Parent’s Unsafe Driving?
Many clients want to avoid going to the DMV about their parent(s). He or she may be mentally sharp, but their vision is deteriorating. There are fresh dents on their car and he/she caused an accident just a few weeks ago. They refuse to talk about their driving skills though, and neither will forgive themselves if he/she hurts someone else. Is there a way to anonymously report their unsafe driving to the DMV? I have had these discussions with many clients. I have some clients who recognize that their driving skills are declining and voluntarily give up their car keys. They are far and few in between though. It’s emotionally tough to give up driving and touch getting around NJ …
Medicaid Gifting Rules and the Annual Federal Gift Tax Exclusion Are Unrelated: Don’t Be Confused!
I’ve written numerous posts about Medicaid gifting and the misconceptions surrounding the annual gift tax exclusion rules. Generally, I’m asked the question whether New Jersey Medicaid looks at the gifts a person gives to his/her kids if the gift is valued under $15,000 each year. It’s the person’s understanding these gifts won’t have an impact on their qualifying for Medicaid benefits if they ever need a nursing home. Beware! These folks are incorrect. They are confusing the Medicaid gifting rules and the annual exclusion for federal gift tax purposes. Let me explain. The $15,000 referred to above is the annual federal estate tax/gift tax exclusion. That’s the amount that you may give away each year, to as many individuals as …
Becoming Guardian for an Elderly Father Should Be Last Resort
Questions about how to go about becoming a parent’s legal guardian are asked every week. Often by siblings who are at odds with other siblings over a parent’s care. A child believes Dad needs assisted living and the others think he belongs at home where he is comfortable. He’s very frail but has his faculties. The sister won’t listen and Dad won’t comment because he doesn’t want to play favorites. Brother and sister are constantly fighting about this. In this emotionally charged discussion motivated by genuine parental concern, either child could pursue becoming their father’s legal guardian, but I would only reluctantly recommend it. It’s an expensive process, would be traumatizing for everyone, and probably damage your relationship with the …
An Incapcaitated Mother’s Successor Trustee is Overwhelmed by Duties. So What Can They Do?
Here’s an unfortunate story. Mom is incapacitated. She can no longer serve as trustee of her living trust. As successor trustee, the job has fallen to her daughter who is finding the job too difficult and time-consuming. She doesn’t want to do it anymore. Although her brother is backup trustee, the mother named him reluctantly because he is not a responsible person. There are concerns that he is not up to the responsibility. Can the existing trustee remove the brother from the list and designate someone else to serve, maybe a trusted cousin who is a CPA? Well, this is a tough question. Now that the daughter has taken over as trustee from her incapacitated mother, her authority is limited …
Commercial Leases: Does it Matter if You Fail to Give Notice of Intent to Renew Your Lease?
A common provision in commercial leases is an option requiring the tenant to notify the landlord of their intention to renew the lease or purchase the property by a specific date. What happens, however, if the tenant fails to provide the landlord with timely notice? In New Jersey, courts generally enforce the lease as written. Therefore, if the tenant fails to renew by the deadline, courts will likely strictly enforce the lease terms. Exceptions to the General Rule: When a Tenant’s Late Notice is Permitted There are a few narrow exceptions to the general rule of strict enforcement of the option provision. There are five special circumstances: (1) the tenant would sustain substantial harm if it were forced to relocate; …
Monmouth/Middlesex Adult Protective Services Presents In-House Training Seminar to the Attorneys and Staff at Hanlon Niemann & Wright
It was our pleasure on June 18, 2019 to welcome Ms. Jessica Reyes, Director of the Monmouth/Middlesex County Adult Protective Services, to Hanlon Niemann & Wright for an in-house training seminar. Ms. Reyes presented a comprehensive Powerpoint presentation on the services provided by this non-profit agency on behalf of elderly persons who are the victims of abuse and/or financial exploitation. On behalf of Hanlon Niemann & Wright, we thank Ms. Reyes for her thorough and very informative presentation. We will be able to benefit all of our clients when there are issues involving the topic of elder abuse and financial exploitation being present. Contact me personally today to discuss your New Jersey elder abuse and/or financial exploitation matter. I …