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 …

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 …

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 …

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, …

  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, …

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 …

“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 …

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 …