A Dispute Over an Executor’s Commission:  What is a Permissible Commission Rate?

HNW Elder Law, Estate Administration and Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold New Jersey Estate Administration Attorney I just read a new case and wanted to share it with you.  The issue involved executor’s commission and whether the commission under NJ law is calculated as a percentage of the gross fair market value, or the net value, after subtracting the outstanding mortgages payable at the time the administrator sold the real estate. In this case, a bank became the Administrator of the estate and sold the property for $172,500.  After paying off the principal mortgage and interest of $132,017.94, the net value of the property was $40,482.06. The bank filed the Estate’s transfer inheritance tax return, which included an administration expense deduction of …

Profile of an Elder Abuse Victim, Up Close and Personal

HNW Elder Abuse and Financial Exploitation, Elder Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County NJ Elder Abuse Lawyer Robert, 88 years old, lives with his adult children in Hackensack, Bergen County,  whom are in their 50’s.  Robert was a child growing up just after the Great Depression, so he is afraid of banks and risky investments.  His don’t understand him and his fears.  They are underachievers and unmotivated in work and in life.  Every day, Robert gets called a “silly old man” and “a dinosaur” by those around him.  Robert is also called names by his grandchildren.  He is blamed for everything that goes wrong in the house.  This constant taunting, insults and name calling makes Robert depressed, which is often confused with sadness by …

Making Public the Difference Between Elder Abuse Stories in Nursing Homes vs. Elder Abuse and Financial Exploitation in the Community?

HNW Elder Abuse and Financial Exploitation, Elder Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County New Jersey Elder Abuse and Financial Exploitation Attorney Elder abuse in New Jersey nursing homes is likely to result in criminal prosecutions or other governmental investigations. Elder abuse within a private home is often not reported and rarely results in a successful criminal prosecution. In both forums, newspapers and other forums are concerned about libel.  If the police don’t prosecute and there are no official documents to confirm the abuse, how can newspapers and reporters publish a story without risks of a defamation lawsuit? There is a public perception that nursing homes are not popular and are therefore easy to attack. The same is not true of family abuse of elderly …

Standby Guardianship in NJ:  An Interesting Concept

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County NJ Guardianship Attorney I was reading an article about guardianship that I thought was worth summarizing for my readers.  The article was about a Standby Guardian.  A Standby Guardianship is an individual appointed by a parent for the benefit of his/her child in the event the parent dies, or becomes incapacitated or is unable to care for the child while alive. Think of a Standby Guardian as a person who is “on call,” ready to take over or help with the care of a child or disabled adult. A Standby Guardian serves on a temporary basis until a permanent Guardian is appointed by the court. A Standby Guardian is appointed …

What if Your Financial Records Are Vague and Incomplete and Your Medicaid Application is Denied?

HNW Applying for Medicaid Long Term Care Benefits, Elder Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County NJ Appealing Medicaid Denial Lawyer Often applicants are denied NJ Medicaid or if approved, assessed with a significant penalty period because there is not a clear paper trail of asset and property transfers.  This means that a family will be liable for months of a nursing home bill at a total cost of approximately $9,000 – $12,000 per month. Most families insist that they have legitimately spent a parent’s assets on care costs while the parent was living at home.  The problem is that they don’t have the documentation to prove it when the State is evaluating their application.  Anything that can’t be proven will be treated as a transfer for …

Must a Doctor or Hospital Comply with a Patient’s Living Will and Advance Healthcare Directive Under New Jersey Law

HNW Elder Care Law, Elder Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County, New Jersey Elder Law and Healthcare Directive Attorney This recent case raises issues concerning the legal obligations imposed on health care providers when a patient’s health care directive conflicts with the healthcare providers’ professional opinion(s) that the requested care is medically ineffective and may cause harm. Here are the facts, Elizabeth Alexander, a 70 year old woman suffering from end stage terminal pancreatic cancer, died four days after she was transferred from a skilled nursing facility to a hospital.  Elizabeth had an advance health care directive stating she wanted all measures taken to prolong her life.   Defendants declined to provide Elizabeth with certain advanced life support measures on the basis …

Disputes Regarding the Validity and Interpretation of Wills and Trusts

HNW Elder Law, Estate Administration and Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Will Contest and Probate Dispute Attorney Procedural Issues; Standing to Contest a Last Will or an Estate A party contesting a will must have standing to challenge the will. Generally, a contestant must be injured, or “aggrieved,” by the probate of the will he or she contests. R. 4:85-1. Someone who feels aggrieved economically has to have a direct interest in seeking to block the probate of a Last Will – (here’s an example, she or he would receive a greater share of the decedent’s assets if the will were not probated). The burden of proof is on the contestant to prove he …

Can You Get an Injunction to Stop a Threatened Breach of a Covenant Not To Compete?  

HNW Business Law, Covenants Not to Compete and Restraints Against Competition

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Covenant Not to Compete Attorney The Applicable Law and Legal Standard to Obtain an Injunction Over time, the court has crafted a four-part framework for use in determining whether the grant or denial of preliminary injunctive relief is appropriate. Under this formulation, trial courts must consider (1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the non-movant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public …

A Gift to Minor’s Account (UGMA) Is Exempt From New Jersey Medicaid After 5 Years

HNW Applying for Medicaid Long Term Care Benefits, Elder Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County New Jersey Medicaid Application Attorney I’ve commented about the case of a resident denied Medicaid because in her Medicaid application she listed a Minor’s Account as a resource.   In this case, the client provided the Medicaid caseworker five (5) years of financial records and was told that his father (Granddad) still had to spend down the balance of $30,000.00 from 529 accounts that the applicant never knew existed. Upon further review of the statements given to Medicaid, it was clear that the $30,000.00 in question was in two (2) Uniform Gift to Minors Act accounts, which the applicant/grandparent was acting as custodian for his grandchildren.   She was asked why she …

Can a Creditor Execute a Judgment Against a Life Estate in New Jersey Real Estate?

HNW Elder Care Law, Elder Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County NJ Elder Law Attorney A client has a life estate in his home with the remainder interest (a remainder interest is an “ownership interest”) having been given to family members, specifically his children. I was asked to determine if a legal judgment would attach to his real estate during his life time or after his demise. The answer is:  A life estate does not give a creditor of a person who has a life estate a right to execute their judgment against his life estate and certainly no right to execute against the remainder interest of his real estate.  The reason is that the holder of the life estate’s interest dies …