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 …
Level of Capacity With Respect to Wills, Trusts, and Powers of Attorney Under NJ Law
By Fredrick P. Niemann, Esq. a NJ Elder Law Attorney Legal Capacity is required for the legal execution of a will and/or a testamentary trust under New Jersey law. a. What is legal capacity and what does it mean under New Jersey Law? Legal capacity (sometimes called Testamentary Capacity) requires:A person to be at least 18 years old, and b. A person who is of sound mind and memory. So what do these terms mean? An easy way to establish that a person is of “sound mind and memory,” is to demonstrate that the person who signed their Last Will or trust at the time of his or her signing: i. Knows that he/she was/is making a will; ii. He or …
Gifts, Wills, and Guardians: A Case Study (Part 3 of a 3-Part Post)
By Fredrick P. Niemann, Esq. a New Jersey Guardianship Attorney So far, in my last two blog entries, I have discussed the fight over Henrietta’s estate plan, who prior to being declared incapacitated in 1997, established an estate plan designed to benefit both of her boys and their families, and was specifically designed to place her one child’s, Howard’s, share in trust to bypass his wife Jacqueline. After being declared incapacitated, the settlement placed on the record included a gifting plan that specifically includes a distribution to Jacqueline to be placed into trust for her, through which she could access a portion of the funds right away. Jacqueline’s stepdaughter, Michele, contested this plan, arguing there was no settlement consented to …
Gifts, Wills, and Guardians: A Case Study (Part 2 of a 3-Part Post)
By Fredrick P. Niemann, Esq. a New Jersey Guardianship Attorney In my last blog, I started talking about the case of In re Cohen, which focused on the issue of a guardian making gifts on behalf of his or her ward that directly contradicted an estate plan created previously by a ward. Our ward in this matter, Henrietta, specifically left one half of her estate in trust for her one son, Howard, and his two children, Douglas and Michelle, because she was afraid of her son’s new wife, Jacqueline, and what would happen if Howard received everything outright and made it all available to Jacqueline. Four years after the estate plan was made, Jacqueline and Howard retain a lawyer to …
What to Do When a Duel Resident of New Jersey and Citizen of Greece Dies with Two Wills?
By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Estate Administration and Probate Attorney Recently, we applied to the County Surrogate to admit for ancillary probate the Last Will of a deceased client who was a dual citizen of both the United States and Greece. The Will was probated by the Justice of the Peace Court of Greece, and our office requested the appointment of the Petitioner, a daughter of the deceased to be the Administrator CTA of the Estate. The decedent, a dual United States and Greek citizen, died testate in Greece. His 2012 Will was published and validated by the Justice of the Peace Court in Greece (the “Greek Will”). A true copy of the original …
What Happened to Mom’s Diamond Earrings
By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Wills Attorney I have drafted many hundreds if not thousands of Last Wills and Testaments for clients over the years. I have represented executors and administrators in the estates of individuals who have passed on. Based upon my experience, I can say with certainty that one common issue that often presents itself had to do with “personal property”. Why is it that personal property becomes the source of so many problems since often the property has little to no monetary value. I can’t answer that except to tell you that personal property is the property that causes the most mess! Personal property is typically comprised of items such as …
NEW HEALTHCARE LAW WILL EXPAND HOSPICE OPTION
By Fredrick P. Niemann, Esq. a New Jersey Hospice Lawyer About this time last year, voters and politicians were discussing legislation that would establish “death panels” of government bureaucrats who could “pull the plug on Grandma” if she needed costly care. The new health care law would have paid for voluntary consultations between physicians and Medicare beneficiaries about end-of-life care: living wills, hospice benefits and the like, until it was repealed. End of life care has been mostly out of the news spotlight. But 36% of seniors still believe that healthcare reform creates “death panels”. Many people may not realize that, in some ways, the new law will expand options for patients at the end of life, through hospice. With …
NEW JERSEY LAW NOW HOLDS EXECUTORS AND TRUSTEES POTENTIALLY LIABLE FOR DAMAGES
Punitive Damages Okayed in Probate Dispute Case: By Fredrick P. Niemann, Esq. a New Jersey Probate Dispute attorney Our New Jersey Supreme Court has ruled under what circumstances punitive damages can be awarded against a fiduciary involved with Wills, Trusts, Probate proceedings and lifetime transfers. A lawsuit was filed against a doctor who was alleged to have persuaded an elderly woman to transfer a large home in Spring Lake, New Jersey to him in lieu of the local Volunteer First Aide Squad who was the prior testamentary beneficiary under her Last Will and Testament. In its analysis, the Court concluded that the remedy of punitive damages is limited to situations where an individual (who is essentially a stranger to …
Picking the Right Executor as your Estate Fiduciary Under your Last Will and Testament? Beware: A Wrong Decision Does Matter
By Fredrick P. Niemann, Esq., a NJ Will Attorney When creating your last will and testament as part of estate planning, an important decision you will have to make is who to name as your executor fiduciary. By fiduciary, I mean your Executor under your Last Will and Testament. An estate fiduciary is a fancy legal term for the person who will take care of your assets and Estate if you are unable to do it yourself, such as the 1) executor of an estate, 2) the trustee of a trust, or 3) an attorney-in-fact under a power of attorney. Your first reaction might be to name one of your children as a fiduciary, but if you want to avoid …
The Story of a Real Life Disaster Caused by an Inadequately Written Last Will and Testament – Learn from This Mistake
Fredrick P. Niemann, Esq., a NJ Wills Attorney Several years past, a husband died leaving a last will and testament with assets, one of which was a 401k. The marriage was a second marriage for her husband, who had two sons from his first marriage. While he was single he had changed the beneficiaries of his life insurance and 401k plan to his sons and had redone his will. After his second marriage, the husband and his new wife bought a home together. They asked their real estate attorney, who handled the purchase for them, to draft a new will as well. The husband listed the assets he wanted to pass to his sons and which assets to his wife. …
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