The Ins and Outs of a Lawsuit Because of the Wrongful Death of a Person

HNW Elder Law, Estate Administration

By Fredrick P. Niemann, Esq. of Hanlon, Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Estate Administration Attorney When a person dies because of someone else’s intentional or negligent conduct, a lawsuit often follows: This type of legal claim is called a “Wrongful Death Action” N.J.S.A. § 2A:31-l sets forth when an action for wrongful death exists.  Specifically, a cause of action for wrongful death exists when a person’s death is caused by a wrongful act, neglect, or default, such that the· person injured would have been entitled to maintain an action for damages resulting from the injury if death had not ensued. The estate representative has a two-year statute of limitations for a wrongful death action following …

What If the Estate Is Broke?  Who Gets Paid First? Understanding the Priority of Unpaid Claims in Estate Administration

HNW Elder Law, Estate Administration, Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate & Probate Administration Attorney What if estate assets are insufficient to pay all the claims that need to be paid in full? What is the personal representative of the estate to do? Well he/she is required to pay claims in the following order: (Please note that this order is non-negotiable so read it closely).   Reasonable funeral expenses; Administration costs and expenses; Debts and taxes with preference under Federal law or the laws of New Jersey, including debts for the reasonable value of services rendered to the decedent by the Office of the Public Guardian for Elderly Adults; Reasonable medical and hospital expenses associated …

Understanding What Posting a Bond Means When Administering an Estate

HNW Elder Law, Estate Administration, Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate & Probate Administration Attorney Many individuals when faced with probating an estate are required to post a bond but few really understand what this means or what is involved. Let me explain the process to you in this blog. As a general rule a court or surrogate will require that a fiduciary post a bond to protect against theft, embezzlement, fraud etc. and to ensure him or her diligently performs of his/her statutory responsibility to the estate or trust. This law also sets forth other circumstances when posting a bond is warranted.  These circumstances include: When any written instrument creates a fiduciary relationship …

An Insolvent Estate Escapes Responsibility for Funeral Expenses After Receiving Millions of Dollars

HNW Elder Law, Estate Administration, Probate

By Fredrick P. Niemann, Esq., a Freehold Township, Monmouth County NJ Estate & Probate Administration Attorney In this case an action was filed by a funeral director against decedent’s representative, and others, to recover the balance of his bill for services rendered at the funeral of decedent. The Superior Court, Appellate Division, held that money received by decedent’s representative in settlement of suit for decedent’s wrongful death did not become an asset of decedent’s estate and hence was not available for payment of funeral or burial expenses although the assets of decedent’s estate were practically nonexistent. The Background of the Case The plaintiff, a funeral director, brought suit to recover $960.34, representing the balance of his bill for services rendered …

How Long Does an Executor/Administrator Have to Pay Creditors of an Estate

HNW Elder Law, Estate Administration

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Estate and Probate Administration Attorney I get asked often how much time an estate fiduciary has to pay the bills of a decedent.  The answer is generally straightforward but has a few twists. If a creditor isn’t presented within nine months of the decedent’s death, the law states that “the personal representative shall not be liable to the creditor with respect to any assets which the personal representative may have delivered or paid in satisfaction of any lawful claims, devises or distributive shares, before the presentation of the claim.” N.J.S.A. Section3B:22-4.  Now that doesn’t mean the creditor is screwed.  A creditor can still file …

Disputes as to Administration of the Estate

HNW Elder Law, Estate Administration, Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Estate and Probate Dispute Attorney Sometimes deputes occur concerning who will administer an estate. In such cases, when there is a dispute the decision rests in the court’s discretion, but several standards apply nonetheless. Where the decedent dies intestate (meaning without a last will), the statutes define the priority for the appointment of an administrator of the estate. N.J.S.A. § 3B:10-2 sets forth an order of priority for those eligible to receive letters of administration the statue reads: If any person dies intestate, administration of the intestate’s estate shall be granted to the surviving spouse of the intestate, if he or she will …

I’m Disinheriting My Son, Daughter & Spouse If You Challenge My Will!

HNW Elder Law, Estate Administration, Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Estate and Probate Dispute Attorney Can you include in your will a clause which provides for the revocation of an inheritance if your beneficiary contests the will? The answer is yes and no. Here’s Why, N.J.S.A. § 3B:3-47 states: “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.” The statute was originally enacted in 1977 and its enforceability has been addressed in a number of cases over the years. The New Jersey Supreme Court addressed the enforcement of these clauses …

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

HNW Elder Law, Estate Administration

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 …

Disputes Regarding the Validity and Interpretation of Wills and Trusts

HNW Elder Law, Estate Administration, 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 …

How to Defeat the NJ Inheritance Tax

HNW Elder Law, Estate Administration

By Fredrick P. Niemann, Esq. a NJ Estate Administration Lawyer New Jersey is looking to raise revenue from everybody, everywhere, especially the estates of moderate to wealthier New Jersey residents.  In one case, a decedent had a will that poured-over estate assets to a revocable trust. The Trust distributed the funds in 3 equal shares to the son & daughter-in law, another son and daughter-in -law and a daughter and son-in-law.   The documents were originally drafted in Florida.  Decedent died a NJ resident.  A NJ Inheritance tax auditor has taken the position that a portion of the trust given to the son/daughter as a class A beneficiary is exempt from NJ inheritance tax but to the daughter and son-in-law it …