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 …

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 …

Does a Guardian of an Estate Have the Power to Execute a Beneficiary Designation Form?

HNW Elder Law, Guardianship Law

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

HNW Elder Law, Estate Administration and 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 and 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 …