Can I Give My Dead Father’s Long Time Girlfriend a Gift if She is Not Mentioned in His Will?

HNW Elder Law, Estate Administration and Probate

NJ imposes an inheritance tax to non-exempt beneficiaries. A girlfriend of a deceased NJ resident is not an exempt beneficiary. How can the estate representative honor a decedents dying wish that a portion of his estate go to his girlfriend? I was recently asked to comment about the following case. A client is the only child of her deceased Dad, who died unmarried and without a Will, making the estate intestate because there is no signed Last Will.  His daughter has been appointed Administrator of his estate. She intends to honor her father’s dying wish that many of his assets go to his long-time girlfriend and companion. The value of the gift will be around $300k going to the girlfriend. …

How is a Self-Cancelling Promissory Note Treated in Estate Death Tax Administration?

HNW Elder Law, Estate Administration and Probate

Understanding What a Self-Cancelling Note Means Under federal law “[t]he value of a gross estate shall include the value of all property to the extent of the interest therein of the decedent at the time of his death.”  I.R.C. § 2033.  In the context of the estate tax, when properly written, a self-cancelling installment note (“SCIN”) functions to remove from the estate the property that is the subject of the installment note leaving no taxable asset in its place. An installment note reflects an agreement related to an installment sale.  As defined by the code, “‘installment sale’ means a disposition of property where at least 1 payment is to be received after the close of the taxable year in which …

When Can a Court Award Legal Fees Against an Estate in Connection with Probate Litigation

HNW Elder Law, Estate Administration and Probate

In probate litigation, it is common for one or all sides to ask for reimbursement of their legal fees and the costs of prosecuting/defending the case.  So, what is the law on this subject?  Do the parties get reimbursed their legal fees and costs? Under Rule 4:42-9 (a) 2 – Fund in Court.  A Probate court can allow legal fees from a “fund in court” under certain circumstances.  So what is a “fund in court”?  A “fund in court” is when there are assets, money and property interest in the hands of a fiduciary who is a party before the court.  A court may grant an award when a party, in the interest of not just himself or herself but …

Who Has Priority to be Appointed Administrator of the Estate of a Deceased Adult, a Parent or the Decedent’s Ex-Spouse or Their Minor Child?

HNW Elder Law, Estate Administration and Probate

An adult parent dies.  It’s tragic.  Now his or her estate needs to be probated and administered.  The person was divorced at the time of his/her death.  Who is legally eligible to handle the estate? The appointment statute gives first priority to the “surviving spouse or domestic partner” and if there is no surviving spouse” then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration.”  N.J.S.A. 3B:10-2.  Based on the intestacy statute N.J.S.A. 3B:5-4, a minor child (under age 18) inherits the entire estate.  Therefore, it would follow that he or she would have the highest priority of appointment.  But if he or she is a minor, neither …

Are You Really Married in New Jersey If There is a Religious Wedding But No Marriage License?

HNW Elder Law, Estate Administration and Probate

I recently read a series of posts about the title of this blog post.  In all truth, I hadn’t really thought about it or had the issue come up.  Here’s what happened. A person died with an estate where the decedent left a handwritten Will.  He has a “common law wife” of 30 years.  They were married in New York state.  The common law wife says they were married by a Rabbi in a traditional Jewish service but not in a civil service.  Is she arguably his wife and a class A beneficiary or a mere class D beneficiary for purposes of New Jersey death tax? The decedent’s Last Will leaves his “spouse” one-third of his estate with two-thirds going …

Widow in Second Marriage Has Legal Rights to Deceased Spouse’s Estate

HNW Elder Law, Estate Administration and Probate

A client’s dad was in a second marriage when he died recently.  The couple did not have a prenuptial or postnuptial agreement.  Dad always told the kids not to worry; they were protected, because he had signed a revocable living trust and pourover last will leaving everything to his kids.  The stepmother, however, says she’s entitled to the house and much more.  She threatens to sue if the family doesn’t agree.  Does she have a legal leg to stand on? Your father may have been well-intentioned, but he was wrong on the facts.  Without a prenuptial or postnuptial agreement, the marriage gives his widow many rights to his estate.  Notwithstanding the trust provisions, she may have the right to live …

Distribute Probate Estate Funds Cautiously, But Don’t Be Unreasonable

HNW Elder Law, Estate Administration and Probate

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, …

Adult Estranged Child Not Entitled to Anything From Parent’s Estate

HNW Elder Law, Estate Administration and Probate

  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, …

Bank Accounts Must Go Through Probate If There Is No Beneficiary Designated

HNW Elder Law, Estate Administration and Probate

Many banks have strict policies regarding accounts that are subject to probate. They demand that the surrogate court provide “letters testamentary” before they’ll release a deceased person’s account to the executor/administrator. Many unknowing persons think that a death certificate and a Will alone be enough to gain access to the decedent’s account, especially if the Will says he or she receives all his/her assets. The bank will always say that is not sufficient. If a person does not name a beneficiary to an account making it payable to a person on death, then it must go through probate. If the parent had designated a beneficiary, it would be as simple as presenting the bank with a death certificate for the …

Don’t Blow It! You Can Still Make a Late and Inexpensive Portability Election to Eliminate and/or Reduce Future Estate Death Taxes

HNW Elder Law, Estate Administration and Probate

“Portability” (I’ll explain its definition later in the blog) allows the personal representative of an estate to preserve a deceased spouse’s unused federal estate and/or gift tax exemption amount for later use by the surviving spouse which may be applied against future gifts by the spouse and/or his or her federal taxable estate upon death. In order to preserve portability, a personal representative is required to make an election on a timely filed IRS Form 706, following the death of the first spouse. If Form 706 is not filed within nine months of a decedent’s death or within 15 months if a request for an extension of time to file the return was timely obtained, a personal representative may be …