Thursday, July 28, 2016
3B:12-73. Immediate assumption of duties of appointed standby guardian; revocation in writing
7. a. Upon the occurrence of a triggering event set forth in a decree appointing a standby guardian, the standby guardian shall be empowered to assume the duties of his office immediately.
b. If the triggering event is the incapacity or debilitation of the parent or legal custodian, the attending physician shall provide a copy of his determination to the appointed standby guardian if the guardian's identity is known to the attending physician.
c. Within 60 days following the assumption of guardianship duties, the appointed standby guardian shall petition the court for confirmation. The confirmation petition shall include a determination of incapacity or debilitation or a death certificate, as appropriate.
d. The court shall confirm an appointed standby guardian named in accordance with this act and otherwise qualified to serve as guardian pursuant to N.J.S.3B:12-1 et seq. unless there is a judicial determination of unfitness with regard to the appointed standby guardian.
e. A standby guardian appointed pursuant to section 6 of this act may decline appointment at any time before the assumption of his duties by filing a written statement to that effect with the court, with notice to be provided to the petitioner and to the minor child if the latter is 14 years of age or older.
f. Commencement of the duties of the standby guardian shall confer upon the appointed standby guardian shared authority with the custodial parent or legal custodian of the minor child, unless the petition states otherwise.
g. A parent or legal custodian may revoke a standby guardianship by executing a written revocation, filing it with the court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation. An unwritten revocation may be considered by the court if the revocati
c. Within 60 days following the assumption of guardianship duties, the appointed standby guardian shall petition the court for confirmation. The confirmation petition shall include a determination of incapacity or debilitation or a death certificate, as appropriate.
d. The court shall confirm an appointed standby guardian named in accordance with this act and otherwise qualified to serve as guardian pursuant to N.J.S.3B:12-1 et seq. unless there is a judicial determination of unfitness with regard to the appointed standby guardian.
e. A standby guardian appointed pursuant to section 6 of this act may decline appointment at any time before the assumption of his duties by filing a written statement to that effect with the court, with notice to be provided to the petitioner and to the minor child if the latter is 14 years of age or older.
f. Commencement of the duties of the standby guardian shall confer upon the appointed standby guardian shared authority with the custodial parent or legal custodian of the minor child, unless the petition states otherwise.
g. A parent or legal custodian may revoke a standby guardianship by executing a written revocation, filing it with the court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation. An unwritten revocation may be considered by the court if the revocati
3B:12-58. Gifts to charities and other objects.
If the estate is ample to provide for the purposes implicit in the distributions authorized by this article, a guardian for the estate of an incapacitated person may apply to the court for authority to make gifts to charity and other objects as the ward might have been expected to make.
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3B:11-16. Pooled trust accounts
1. Prepaid funeral expense moneys used to fund a prepaid funeral agreement may be deposited into a pooled trust account in a federally insured State or federally chartered bank, savings bank or savings and loan association pursuant to a written trust agreement the beneficiaries of which shall be the purchasers or intended funeral recipients. Any such trust agreement shall assure that the following terms and conditions are clearly and conspicuously disclosed in writing to purchasers and intended funeral recipients prior to the acceptance of any moneys by the trustees:
a. The right to immediately withdraw on demand any moneys plus accrued interest paid into the trust, except as provided in section 1 of P.L.1991, c.502 (C.2A:102-16.1).
b. The right to receive periodic statements not less than once per year reflecting the amount of principal and accrued interest, if any, in the trust.
c. The amount or rate of commissions to be taken.
d. The identity and location of the trustees.
e. The location of the trust agreement and the conditions under which it may be examined.
All such trust agreements entered into by a provider on or after the effective date of this 1993 amendatory and supplementary act shall comply with the provisions set forth in sections 1 through 13 of P.L.1993, c.147 (C.45:7-82 to 45:7-94).
26 USC 704. Partners distributive share
| (a)Effect of partnership agreement A partners distributive share of income, gain, loss, deduction, or credit shall, except as otherwise provided in this chapter, be determined by the partnership agreement. (b)Determination of distributive share A partners distributive share of income, gain, loss, deduction, or credit (or item thereof) shall be determined in accordance with the partners interest in the partnership (determined by taking into account all facts and circumstances), if (1)the partnership agreement does not provide as to the partners distributive share of income, gain, loss, deduction, or credit (or item thereof), or (2)the allocation to a partner under the agreement of income, gain, loss, deduction, or credit (or item thereof) does not have substantial economic effect. (c)Contributed property (1)In general Under regulations prescribed by the Secretary (A)income, gain, loss, and deduction with respect to property contributed to the partnership by a partner shall be shared among the partners so as to take account of the variation between the basis of the property to the partnership and its fair market value at the time of contribution, (B)if any property so contributed is distributed (directly or indirectly) by the partnership (other than to the contributing partner) within 7 years of being contributed (i)the contributing partner shall be treated as recognizing gain or loss (as the case may be) from the sale of such property in an amount equal to the gain or loss which would have been allocated to such partner under subparagraph (A) by reason of the variation described in subparagraph (A) if the property had been sold at its fair market value at the time of the distribution, (ii)the character of such gain or loss shall be determined by reference to the character of the gain or loss which would have resulted if such property had been sold by the partnership to the distributee, and (iii)appropriate adjustments shall be made to the adjusted basis of the contributing partners interest in the partnership and to the adjusted basis of the property distributed to reflect any gain or loss recognized under this subparagraph, and (C)if any property so contributed has a built-in loss (i)such built-in loss shall be taken into account only in determining the amount of items allocated to the contributing partner, and (ii)except as provided in regulations, in determining the amount of items allocated to other partners, the basis of the contributed property in the hands of the partnership shall be treated as being equal to its fair market value at the time of contribution. For purposes of subparagraph (C), the term built-in loss means the excess of the adjusted basis of the property (determined without regard to subparagraph (C)(ii)) over its fair market value at the time of contribution. (2)Special rule for distributions where gain or loss would not be recognized outside partnerships Under regulations prescribed by the Secretary, if (A)property contributed by a partner (hereinafter referred to as the contributing partner) is distributed by the partnership to another partner, and (B)other property of a like kind (within the meaning of section1031) is distributed by the partnership to the contributing partner not later than the earlier of (i)the 180th day after the date of the distribution described in subparagraph (A), or (ii)the due date (determined with regard to extensions) for the contributing partners return of the tax imposed by this chapter for the taxable year in which the distribution described in subparagraph (A) occurs, then to the extent of the value of the property described in subparagraph (B), paragraph (1)(B) shall be applied as if the contributing partner had contributed to the partnership the property described in subparagraph (B). (3)Other rules Under regulations prescribed by the Secretary, rules similar to the rules of paragraph (1) shall apply to contributions by a partner (using the cash receipts and disbursements method of accounting) of accounts payable and other accrued but unpaid items. Any reference in paragraph (1) or (2) to the contributing partner shall be treated as including a reference to any successor of such partner. (d)Limitation on allowance of losses A partners distributive share of partnership loss (including capital loss) shall be allowed only to the extent of the adjusted basis of such partners interest in the partnership at the end of the partnership year in which such loss occurred. Any excess of such loss over such basis shall be allowed as a deduction at the end of the partnership year in which such excess is repaid to the partnership. (e)Family partnerships(1)Recognition of interest created by purchase or gift A person shall be recognized as a partner for purposes of this subtitle if he owns a capital interest in a partnership in which capital is a material income-producing factor, whether or not such interest was derived by purchase or gift from any other person. (2)Distributive share of donee includible in gross income In the case of any partnership interest created by gift, the distributive share of the donee under the partnership agreement shall be includible in his gross income, except to the extent that such share is determined without allowance of reasonable compensation for services rendered to the partnership by the donor, and except to the extent that the portion of such share attributable to donated capital is proportionately greater than the share of the donor attributable to the donors capital. The distributive share of a partner in the earnings of the partnership shall not be diminished because of absence due to military service. (3)Purchase of interest by member of family For purposes of this section, an interest purchased by one member of a family from another shall be considered to be created by gift from the seller, and the fair market value of the purchased interest shall be considered to be donated capital. The family of any individual shall include only his spouse, ancestors, and lineal descendants, and any trusts for the primary benefit of such persons. (f)Cross reference For rules in the case of the sale, exchange, liquidation, or reduction of a partners interest, see section706(c)(2). |
2015 update Wills and Estate Planning Seminar materials
1. Federal Estate Tax exemption now permanently increased so no tax for Estates under$5,340,000., and will be adjusted annually for inflation. However, New Jersey taxes estates over $675,000.
2. Gifts permitted without Federal Estate & Gift tax was increased to $14,000 per person.
3. We recommend Self- Proving Wills since witnesses often move or pass away
4. Non-formal writings could be Wills under the New Probate Law
5. Undue influence: Recent cases can void Will signed under suspicious circumstances
6. NJ Inheritance tax
7. Power of Attorney
8. Federal Health Privacy Law (HIPAA)
9. Competency required to sign a Will or Power of Attorney
10. Taxpayer relief act
1. Federal Estate Tax exemption is now permanently increased so no tax for Estates under $5,340,000, and will be adjusted annually for inflation. However, New Jersey taxes estates over $675,000.
Federal Exemption Amount for Non-Citizen Spouses is $145K up from $143K.
New Jersey has an Estate Tax on amounts over $675,000. So, even if no Federal Estate Tax due, the estate must still file a Federal Estate Tax Return, plus NJ Estate Tax Return.
So, for an unmarried or widowed person with assets of $1,000,000, there is No Federal Estate Taxes, but
the Estimated State Estate Tax:$33,200.00
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For an unmarried or widowed person with assets of $1,500,000, estimated NJ Estate Tax is over $60,000.
The Federal Tax rate on estates over $5,340,000 has been increased from 35% to 40%.
How to avoid NJ Estate Tax- hire an attorney to set up a personal residence trust or irrevocable trust and have the assets taken out of your name and put into a trust or given to children and grandchildren in the trust. Minimum fees for trust are $3,000. This is probably not something a non-attorney can do on their own. It is illegal for a non-attorney to provide legal advice or prepare most legal documents.
2. Gifts permitted without Federal Estate & Gift tax was increased to $14,000 per person.
However, the amount permitted for Medicaid transfers is zero.
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3. We recommend Self- Proving Wills since witnesses often move or pass away
An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogates office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmothers Will was not self- proving, and the witness to Will extorted a $500 fee.
The New Jersey Legislature later passed a law to create a type of Will called a Self-Proving Will. In such a Will, the person for whom the Will is made must sign. Then two witnesses sign.Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving. Beware of online documents not prepared by an attorney
When done properly, the executor does not have to locate any witnesses. This usually saves time and money. If your Will is not self-proving or if you are unsure, schedule an appointment with an elder law attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows old methods and does not do a self-proving Will.
4. NJ SENATE Law No. 708 made a number of substantial changes to the NJ Probate Law.
Non-formal writings could be Wills under the Revised provisions governing the administration of estates and trusts in New Jersey. So make sure you have a Formal Will drafted by an estate attorney.
The law expanded situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. Possibly a Christmas card with handwritten notes could be presented as a Will or Codicil.
To present a non-formal Will or writing requires an expensive Complaint and Order to Show Cause to be filed in the Superior Court, and a hearing in front of a Superior Court Judge.
Be careful; have a Will done properly by an experienced attorney.
Beware of the Elective share rights of a new spouse. Have a Prenuptial Agreement if entering into a 2nd marriage
The elective share provisions of the present Code has still not been changed yet. Currently, the new spouse who is not given money in a Will can challenge the terms of the Will. This is called electing against the Will by a spouse. A spouse could receive up to 1/3 of the estate, even if only married for 2 weeks. The spouse must file a Caveat or lawsuit in Superior Court. We suggest a formal prenuptial agreement in 2nd marriage situations.
A Testator now means both male and female individuals, removing the term Testatrix. Will forms that say executrix should not be used.
The law provides a statute of limitations with respect to creditor claims against a decedents estate. There is no longer a need to publish a Notice Limiting Creditors.
5. NJ Supreme Court held a Will could be void if signed under suspicious circumstances
When there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the Will proponent to overcome the presumption.
If there is undue influence in making of Will and transfer by Deed of a house by persons in Confidential relationship, this could subject those persons to punitive damages in some instances, plus voiding of the Will. In the Matter of the Estate of Madeleine Stockdale, Deceased196 NJ 275 (2008)
A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account.SeeEstate of DeFrank, 433N.J. Super.258, (App. Div. 2013) Accordingly,
if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.
[Estate of Ostlund v. Ostlund,391 N.J. Super. 390, 401 (App. Div. 2007).]
Although perhaps difficult to define, the concept encompasses all relationships whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists. Pascale v. Pascale,113 N.J. 20, 34 (1988) (internal citation omitted). And while family ties alone may not qualify, parent-child relationships have been found to be among the most typical of confidential relationships.DeFrank,supra, slip op. at 13 (citingOstlund,supra, 391N.J. Super.at 401).
In the context of inter vivos gifts, a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor or when a confidential relationship exists between the donor and done.Pascale,supra, 113N.J.at 30 (internal citations omitted). Where parties enjoy a relationship in which confidence is naturally inspired or reasonably exists, the person who has gained an advantage due to that confidence has the burden of proving that no undue influence was used to gain that advantage,In re Estate of Penna,322 N.J. Super. 417, 423 (App. Div. 1999), and the donee has the burden of showing by clear and convincing evidence not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.In re Estate of Mosery,349 N.J. Super. 515, 522-23 (App. Div. 2002) (citingIn re Dodge,50 N.J. 192, 227 (1967)).
The person receiving gifts and greater benefit had a burden to show no deception was practiced and that all of the transactions were fair, open and voluntary, and that they were well understood.
Wills should be prepared without undue influence. No one other than the person who is signing the Will should be in the room. We usually request the person who wants the Will to fill out the interview form themselves.
6. NJ Inheritance tax
The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms were revised. Dont use old forms. Even if no inheritance tax due, a Tax Waiver on a house must still be obtained and filed if the house was not co-owned by the spouse.
7. Power of Attorney- Do not use a form purchased online.
A Power of Attorney should contain reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11).
8. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients.
The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues.
Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.
Powers of attorneys and Living Wills should be updated to reference this new law. More information on the HIPAA law at http://www.njlaws.com/hipaa.htm
After you sign the Living Will in your attorneys office, provide a copy to your doctor and family.
9. Competency required to sign a Will or Power of Attorney
My law office cannot prepare a Power of Attorney, Will or any other legal document unless a person is mentally competent. If someone is unable to come into our office, we require the client or clients family to have the treating Doctor sign the Doctor Certification of Patient Capacity to Sign Legal Documents It is the client or clients familys responsibility to contact the doctor, obtain the signed Certification at the clients expense, and then provide the law office with the original signed Certification. The law office cannot accept phone calls stating someone is competent. Therefore, it is wise do have your documents drafted while you can drive and are healthy.
2014 update Wills and Estate Planning Seminar materials
1. Federal Estate Tax exemption now permanently increased so no tax for Estates under $5,340,000., and will be adjusted annually for inflation. However, New Jersey taxes estates over $675,000.
2. Gifts permitted without Federal Estate & Gift tax was increased to $14,000 per person.
3. We recommend Self- Proving Wills since witnesses often move or pass away
4. Non-formal writings could be Wills under the New Probate Law
5. Undue influence: Recent cases can void Will signed under suspicious circumstances
6. NJ Inheritance tax
7. Power of Attorney
8. Federal Health Privacy Law (HIPAA)
9. Competency required to sign a Will or Power of Attorney
10. Taxpayer relief act
1. Federal Estate Tax exemption is now permanently increased so no tax for Estates under $5,340,000, and will be adjusted annually for inflation. However, New Jersey taxes estates over $675,000.
Federal Exemption Amount for Non-Citizen Spouses is $145K up from $143K.
New Jersey has an Estate Tax on amounts over $675,000. So, even if no Federal Estate Tax due, the estate must still file a Federal Estate Tax Return, plus NJ Estate Tax Return.
So, for an unmarried or widowed person with assets of $1,000,000, there is No Federal Estate Taxes, but
the Estimated State Estate Tax:$33,200.00
| ||
For an unmarried or widowed person with assets of $1,500,000, estimated NJ Estate Tax is over $60,000.
The Federal Tax rate on estates over $5,340,000 has been increased from 35% to 40%.
How to avoid NJ Estate Tax- hire an attorney to set up a personal residence trust or irrevocable trust and have the assets taken out of your name and put into a trust or given to children and grandchildren in the trust. Minimum fees for trust are $3,000. This is probably not something a non-attorney can do on their own. It is illegal for a non-attorney to provide legal advice or prepare most legal documents.
2. Gifts permitted without Federal Estate & Gift tax was increased to $14,000 per person.
However, the amount permitted for Medicaid transfers is zero.
| ||
3. We recommend Self- Proving Wills since witnesses often move or pass away
An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogates office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmothers Will was not self- proving, and the witness to Will extorted a $500 fee.
The New Jersey Legislature later passed a law to create a type of Will called a Self-Proving Will. In such a Will, the person for whom the Will is made must sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving. Beware of online documents not prepared by an attorney
When done properly, the executor does not have to locate any witnesses. This usually saves time and money. If your Will is not self-proving or if you are unsure, schedule an appointment with an elder law attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows old methods and does not do a self-proving Will.
4. NJ SENATE Law No. 708 made a number of substantial changes to the NJ Probate Law.
Non-formal writings could be Wills under the Revised provisions governing the administration of estates and trusts in New Jersey. So make sure you have a Formal Will drafted by an estate attorney.
The law expanded situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. Possibly a Christmas card with handwritten notes could be presented as a Will or Codicil.
To present a non-formal Will or writing requires an expensive Complaint and Order to Show Cause to be filed in the Superior Court, and a hearing in front of a Superior Court Judge.
Be careful; have a Will done properly by an experienced attorney.
Beware of the Elective share rights of a new spouse. Have a Prenuptial Agreement if entering into a 2nd marriage
The elective share provisions of the present Code has still not been changed yet. Currently, the new spouse who is not given money in a Will can challenge the terms of the Will. This is called electing against the Will by a spouse. A spouse could receive up to 1/3 of the estate, even if only married for 2 weeks. The spouse must file a Caveat or lawsuit in Superior Court.We suggest a formal prenuptial agreement in 2nd marriage situations.
A Testator now means both male and female individuals, removing the term Testatrix. Will forms that say executrix should not be used.
The law provides a statute of limitations with respect to creditor claims against a decedents estate. There is no longer a need to publish a Notice Limiting Creditors.
5. NJ Supreme Court held a Will could be void if signed under suspicious circumstances
When there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the Will proponent to overcome the presumption.
If there is undue influence in making of Will and transfer by Deed of a house by persons in Confidential relationship, this could subject those persons to punitive damages in some instances, plus voiding of the Will. In the Matter of the Estate of Madeleine Stockdale, Deceased 196 NJ 275 (2008)
A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account.SeeEstate of DeFrank, 433N.J. Super.258, (App. Div. 2013) Accordingly,
if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.
[Estate of Ostlund v. Ostlund,391 N.J. Super. 390, 401 (App. Div. 2007).]
Although perhaps difficult to define, the concept encompasses all relationships whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists. Pascale v. Pascale,113 N.J. 20, 34 (1988) (internal citation omitted). And while family ties alone may not qualify, parent-child relationships have been found to be among the most typical of confidential relationships.DeFrank,supra, slip op. at 13 (citingOstlund,supra, 391N.J. Super.at 401).
In the context of inter vivos gifts, a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor or when a confidential relationship exists between the donor and done.Pascale,supra, 113N.J.at 30 (internal citations omitted). Where parties enjoy a relationship in which confidence is naturally inspired or reasonably exists, the person who has gained an advantage due to that confidence has the burden of proving that no undue influence was used to gain that advantage,In re Estate of Penna,322 N.J. Super. 417, 423 (App. Div. 1999), and the donee has the burden of showing by clear and convincing evidence not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.In re Estate of Mosery,349 N.J. Super. 515, 522-23 (App. Div. 2002) (citingIn re Dodge,50 N.J. 192, 227 (1967)).
The person receiving gifts and greater benefit had a burden to show no deception was practiced and that all of the transactions were fair, open and voluntary, and that they were well understood.
Wills should be prepared without undue influence. No one other than the person who is signing the Will should be in the room. We usually request the person who wants the Will to fill out the interview form themselves.
6. NJ Inheritance tax
The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms were revised. Dont use old forms. Even if no inheritance tax due, a Tax Waiver on a house must still be obtained and filed if the house was not co-owned by the spouse.
7. Power of Attorney- Do not use a form purchased online.
A Power of Attorney should contain reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11).
8. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients.
The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues.
Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.
Powers of attorneys and Living Wills should be updated to reference this new law. More information on the HIPAA law athttp://www.njlaws.com/hipaa.htm
After you sign the Living Will in your attorneys office, provide a copy to your doctor and family.
9. Competency required to sign a Will or Power of Attorney
My law office cannot prepare a Power of Attorney, Will or any other legal document unless a person is mentally competent. If someone is unable to come into our office, we require the client or clients family to have the treating Doctor sign theDoctor Certification of Patient Capacity to Sign Legal Documents It is the client or clients familys responsibility to contact the doctor, obtain the signed Certification at the clients expense, and then provide the law office with the original signed Certification. The law office cannot accept phone calls stating someone is competent. Therefore, it is wise do have your documents drafted while you can drive and are healthy.
17:12B-85. Rights of beneficiary on death of fiduciary; effect of laws requiring valid testamentary disposition
When an account is maintained in a form described in section 82 of this act the right of the named beneficiary to be vested with sole and indefeasible title to the moneys, to the credit of the account on the death of the fiduciary, shall not be denied, abridged, or in anywise affected because such right has not been created by a writing executed in accordance with the laws of this State prescribing the requirements to effect a valid testamentary disposition of property.
17:12B-83. Applicability to moneys paid to account by trustee under will, other fiduciary instrument, court order or decree
17:12B-82 Membership trust accounts
When a membership trust account is opened in the manner provided in the Multiple-party Deposit Account Act , and,
a. Where a trustees death terminates the trust under the provisions of section 5c(2) of the Multiple-party Deposit Account Act and where the named beneficiary or all of the beneficiaries so named are 16 years of age or over at the time of termination of such trust, the association shall pay the moneys to the credit of the trust, less all proper set-offs and charges, to the named beneficiary or beneficiaries or upon his or their order, and such payment by the association shall be valid, notwithstanding any lack of legal age of the named beneficiary or beneficiaries;
b. If the named beneficiary or all of the beneficiaries so named are under 16 years of age at the time of termination of such trust, the association shall pay the moneys to the credit of the trust, less all proper set-offs and charges,
(1) When or after the named beneficiary becomes 16 years of age, to the named beneficiary or upon his order, or
(2) When more than one beneficiary is named, the association shall pay to the beneficiary so named his proportionate interest in such account as he becomes 16 years of age, or
(3) To the legal guardian of the named beneficiary wherever appointed, or where more than one beneficiary is named, the association shall pay such beneficiarys proportionate interest in such account to his legal guardian wherever and whenever appointed, or
(4) If a certificate of appointment of a legal guardian is not filed with the association to a person authorized to receive such moneys or proportionate interest thereof pursuant to sections 3A:6-31 and 3A:6-32 of the New Jersey Statutes.
c. Where a trustees death terminates the trust under the provisions of section 5c(2) of the Multiple-party Deposit Account Act and where one or more of the named beneficiaries are under 16 years of age and the remainder of the named beneficiaries are 16 years of age or over, the association shall pay the moneys to the credit of the trust, less all proper set-offs and charges to:
(1) The named beneficiaries 16 years of age or over at the time of termination of said trust pursuant to subsection a of this section, and
(2) The named beneficiaries under 16 years of age at the time of termination of said trust pursuant to subsection b of this section.
10 Estate Planning Ideas for Single Moms
There may come a time when a parent is unable, due to physical or mental incapacity, to take care of her minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children, as well as the courts will need direction. By writing and executing a Will, which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for moms with minor children as they are for senior citizens.
Where there’s No Will …
If you do not write a Will, the State has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself! A Will should be a statement to the things you truly care about: your children, your parents, your friends, your Church and charities. You can consider remembering your church or school.
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian upon their death. National statistics indicate that more than 50% of Americans die without leaving a will. In the absence of a will or other legal arrangement to distribute property at death, the State must step in to administer the estate and decide who gets custody of your children and handles your money. This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.
If You Have No Will:
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
1. People you dislike or people who dislike and ignore you may get some of your assets.
2. State law determines who gets assets, not you
3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees
4. You Lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes
5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.
6. It probably will cause fights and lawsuits within your family
7. The procedure to distribute assets becomes more complicated
8. The father of your children may try to control the assets of your children and not properly spend the money
In planning, make sure your assets go to your loved ones or favorite charity, not an ex. Therefore, you may wish to do the following:
1) Have an Elder Law attorney prepare a Will to distribute your assets to the people you care about the most. If you already have a Will, prepare a new Will and have the old Will revoked. (Your estate planning attorney will explain this to you.)
2) Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old power of attorney revoked.
3) Select the correct beneficiary on assets you may own, such as stocks, bank accounts, IRA, and other financial assets.
4) Change your beneficiary under your own life insurance, whether whole life insurance or term insurance.
5) Contact your employers human resources and change the beneficiary on life insurance, pension, stock options or other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.
6) If you are not divorced or separated from the father, keep your personal papers at a location where an ex-spouse or the childs parent cant destroy them.
7) If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody.
8) Make sure the trustee for any funds designated for your children is the right trustee.
9) Have your attorney prepare a prenuptial agreement, if you decide to get married, so your children can inherit your assets. ) If you get married, have a formal prenuptial agreement prepared by an attorney so your children, not new spouse, receives your assets if you pass away.
10) In New Jersey, if you are still married and living with a spouse, under certain instances the surviving spouse has a right to elect against the will. The disinherited spouse may like to elect against the Will and try to obtain one third of the estate. Your attorney can explain how you can protect yourself and your children.
ESTATE PLANNING TO PROTECT YOUR CHILDREN
Guardians
Most individuals appoint the parent to act as Guardian of the person and property of their minor children. It is suggested that your Will include a clause which provides that in the event the father predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.
Trustee
Select a trusted person, a close relative or friends, who will invest and hold your childrens money. In your Will you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select.
Children born after you sign the Will
Many people direct that the provisions of their Will also applies to afterborn children. Accordingly, if you have any additional children subsequent to the execution of this Will, then wherever you have designated only your named children, you intend that all of your children shall share equally in the relevant provisions of your Will.
In addition to having a formal Last Will and Testament individuals are encouraged to have a Power of Attorney and also Living Will. Moreover, we also recommend they plan ahead and write messages to their family and anticipated executor detailing their specific desires regarding funeral and burial. Written instructions to your family and executor containing information and guidance will minimize uncertainty, confusion, and possible oversights following your death.
Conclusion
While the preceding article contains possible items to be discussed with your family, attorney and executor, the article is by no means exhaustive. A number of these items may not be applicable in your situation, and probably there are many others that are applicable. The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.
About the Author:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 19 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on legal topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested hearings.
He is also a popular speaker for the American Bar Associations General Practice Section and Law Practice Management Section.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
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