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
“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 …
Does a Guardian of an Estate Have the Power to Execute a Beneficiary Designation Form?
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Guardianship Attorney I was recently asked a question about the title of this blog wherein the Judgment of Incapacity and Appointment of Guardian did not have a specific provision authorizing the Guardian of the Estate of an incapacitated person to complete a beneficiary designation form for the person’s inherited IRA. In this case, the person had no estate plan and he inherited a substantial account from his predeceased spouse but now he was incapacitated. The judgment approving the guardianship did not specify an estate planning power for non-probate assets. In my research, I cannot find any broad power which permits a guardian to designate …
What If the Estate Is Broke? Who Gets Paid First? Understanding the Priority of Unpaid Claims in Estate Administration
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
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
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 …
Disputes as to Administration of the Estate
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!
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 …
Disputes Regarding the Validity and Interpretation of Wills and Trusts
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 …
An Equitable Adoption? You Are Either Legally Adopted or You Are Not. There is No In-Between. (Part 2)
By Fredrick P. Niemann, Esq., a Freehold Township, Monmouth County, NJ Probate Attorney Part 2 of a 2 Part Series In my previous post, I discussed a case which involves the death of a biological parent in which a child was never formally adopted but raised as if the biological child of a stepparent. I continue my discussion in this post. When told the news about this birth father, GA Jr. was stunned; although resistant, he eventually commenced a casual relationship with his father that consisted of only occasional telephone calls and even fewer visits. It is fair to assume (particularly when viewing the facts in the light most favorable to GA Jr.) that a true psychological parental relationship never …