By
Kenneth A. Vercammen (c) 2005
As
average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In
spite of all the resources and assets we earn, the vast majority of us do not
take the time to create a Will. National statistics indicate that 80% of
Americans die without leaving a will. There are several reasons for this: fear
of death; procrastination; and misinformation (people presume that only the
rich or married with children need to have wills). Whatever the excuse, it is
clear that people would benefit from having a Will.
In
the absence of a Will or other legal arrangement to distribute property at
death, your partner cannot receive any assets and cannot administer your
estate. The result can be lengthy delays and other problems. Individuals in gay
or lesbian relationships need properly drafted Wills and estate planning
documents more than straight persons. The probate laws generally provide if a
person dies without a Will, their property goes to family, rather than a
partner they had a relationship with for years or decades.
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: * State law determines who gets
assets, not you * Additional expenses will be incurred and extra work will be
required to qualify an administrator * Possible additional State inheritance
taxes and Federal estate taxes * If you have no spouse or close relatives the
State may take your property * The procedure to distribute assets becomes more
complicated-and the law makes no exceptions for persons in unusual need or for
your own wishes. * It may also cause fights and lawsuits between your partner
and your family When your loved ones are grieving and dealing with death, they
shouldn¹t be overwhelmed with disputes over property and Financial concerns.
Careful estate planning helps take care of that.
THE
FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE
INCLUDED IN A WILL FOR UNMARRIED PERSON:
1ST:
DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC 3RD:
DISPOSITION TO PARTNER 4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS
PREDECEASED 5TH: CREATION OF TRUSTS FOR PARTNER 6TH: DISTRIBUTION TO CHILDREN
OR TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH:
TRUSTEES 10TH: GUARDIANS OF CHILDREN 11TH: NO SURETY OR BOND REQUIRED 12TH:
POWERS 13TH: SELF PROVING WILL 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT
OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE A
Will must not only be prepared within the legal requirements of the New Jersey
Statutes but should also be prepared so it leaves no questions regarding your
intentions.
WHY
PERIODIC REVIEW IS ESSENTIAL Even if you have an existing Will, there are many
events that occur which may necessitate changes in your Will. Some of these
are: * Domestic Partnership, Marriage, death, birth, divorce or separation
affecting people named in your Will *Significant changes in the value of your
total assets or in any particular assets which you own * Changes in your
relationships * A change in your State domicile * Death or incapacity of a
beneficiary, or death, incapacity or change in residence of a named executor,
or of one of the witnesses to the execution of the Will if the Will is not
self- proving
*Annual
changes in tax law MAY I CHANGE MY WILL? Yes. A Will may be modified, added to,
or entirely changed at any time before your death provided you are mentally and
physically competent and desire to change your Will. You should consider
revising your Will whenever there are changes in the size of your estate.
Beware, if you draw lines through items, erase or write over, or add notations
to the original Will, it can be destroyed as a legal document. Either a new
Will should be legally prepared or a codicil signed to legally change portions
of the Will.
SAVE
MONEY Probate in New Jersey is not difficult. Your estate will be subject to
probate whether or not you have a Will and in most cases, a Will reduces the
cost by eliminating the requirements of a bond. When you meet with your
attorney to draft a Will, you may also learn ideas to reduce death taxes and
other expenses. Dont pinch pennies now to the detriment of your Partner and
beneficiaries. We have attempted to briefly explain in this article some of the
issues, techniques, and decisions involved in Wills, Estate Planning, and
Administration of an Estate. Because the matters covered are complicated and
the Federal and New Jersey laws frequently change, this article can only
outline some of the many legal issues you should consider.
The
cost of a Will depends on the size and the complexity of the estate and the
plans of the person who makes the Will.
A
properly drawn Simple Will without Trust costs approximately $200.00 to
$500.00. It is one of the most important documents you will ever sign, and may
be one of the best bargains you will ever have. Also, ascertain if your Will is
self-proving, which would dispense with having to find the Wills witnesses after
death.
WHAT
IS A WILL? A Will is a Legal written document which, after your death, directs
how your individually owned property will be distributed, who will be in charge
of your property until it is distributed. You should remember that the term
³property² under the law includes "real estate as well as other
possessions and rights to receive money or items of value.² Everyone who has at
least $3,000 in assets should have a Will. You do not have to be wealthy,
married, or near death to do some serious thinking about your Will.
ADMINISTRATION
OF AN ESTATE If you are named the executor or executrix, you must visit the
County Surrogate to probate the Will. You will need the following items: 1. The
Death Certificate 2. The Original Will 3. Names and Addresses of decedents next
of kin and will beneficiaries 4. Minimum of $80.00 for Surrogate fees
A
state inheritance tax return must be filed and the tax paid on the transfer of
real or personal property within eight months after death. OTHER ITEMS OF
CONCERN TO BE PREPARED BY YOUR ATTORNEY -Power of Attorney- to allow your
partner or another person to administer your assets during your lifetime,
either upon disability or now -Living Wills/ Advance Directive- to state your
wishes concerning medical care in the event of your serious illness and to
allow your partner or another person to make medical decisions.
In
the absence of a Power of Attorney or other legal arrangement to distribute
property if you become disabled, your partner cannot pay your bills or access your
assets. The result can be lengthy delays.
Reasons
to have a Power of Attorney What are these powers of attorney?
A
Power of Attorney is a written document in which a competent adult individual
(the "principal") appoints another competent adult individual (the
"attorney-in-fact") to act on the principals behalf. In general, an
attorney-in-fact may perform any legal function or task which the principal has
a legal right to do for him/herself. You may wish to sign a Power of Attorney
giving your partner the power to handle your affairs if you become ill or
disabled.
The
term "durable" in reference to a power of attorney means that the
power remains in force for the lifetime of the principal, even if he/she
becomes mentally incapacitated. A principal may cancel a power of attorney at
any time for any reason. Powers granted on a power of attorney document can be
very broad or very narrow in accordance with the needs of the principal.
Why
is Power of Attorney so important? Every adult has day-to-day affairs to manage,
such as paying the bills. Many people are under the impression that, in the
event of catastrophic illness or injury, a live-in partner, or child can
automatically act for them. Unfortunately, this is often wrong, even when joint
ownership situations exist. Even under the "new" NJ Domestic Partner
Act, you cannot act on behalf of a partner if they become disabled. A Power of
Attorney allows your partner or another person to administer your assets during
your lifetime, either upon disability or now.
The
lack of properly prepared and executed power of attorney can cause extreme
difficulties when an individual is stricken with severe illness or injury
rendering him/her unable to make decisions or manage financial and medical
affairs. New Jersey has a detailed, expensive legal procedures, called
Guardianships or conservatorships, to provide for appointment of a Guardian.
These normally require lengthy, formal proceedings and are expensive in court.
This means involvement of lawyers to prepare and file the necessary papers and
doctors to provide medical testimony regarding the mental incapacity of the
subject of the action. The procedures also require the involvement of a
temporary guardian to investigate, even intercede, in surrogate proceedings.
This can be slow, costly, and very frustrating. In addition, the domestic
partner can be challenged in a guardianship by the incapacitated persons family
members. Advance preparation of the Power of Attorney could avoid the
inconvenience and expense of guardianship proceedings. This needs to be done
while the principal is competent, alert and aware of the consequences of his /
her decision. Once a serious problem occurs, it is usually too late. The Power
of Attorney can be effective immediately upon signing or only upon disability.
Some examples of legal powers contained in the Power of Attorney are the
following: 1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages,
notes, checks, drafts, money orders, and to lease, collect rents, grant,
bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and
adjust all matters pertaining to real estate.
2.
ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any
and all bills of exchange, checks, drafts, notes and trade acceptances.
3.
PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that
may hereafter be owing by me upon any bill of exchange, check, draft, note, or
trade acceptance, made, executed, endorsed, accepted, and delivered by me, or
for me, and in my name, by my Agent.
4.
STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or
other securities now or hereafter, belonging to me, that may be issued by an
association, trust, or corporation whether private or public, and to make,
execute, and deliver any assignment, or assignments, of any such shares of
stock, bonds, or other securities.
5.
CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make,
sign, execute, and deliver, acknowledge, and perform any contract, agreement,
writing, or thing that may, in the opinion of my Agent, be necessary or proper
to be entered into, made or signed, sealed, executed, delivered, acknowledged
or performed.
6.
BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to
or withdraw any amounts from any of my bank accounts, Certificates of Deposit,
Money Market Accounts, etc. on my behalf or for my benefit. To make, execute,
endorse, accept and deliver any and all checks and drafts, deposit and withdraw
funds, acquire and redeem certificates of deposit, in banks, savings and loan
associations and other institutions, execute or release such deeds of trust or
other security agreements as may be necessary or proper in the exercise of the
rights and powers herein granted; Without in any way being limited by or
limiting the foregoing, to conduct banking transactions.
7.
TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and
municipal tax returns, insurance forms and any other documents and to represent
me in all matters concerning the foregoing.
You
should contact your attorney to have a Power of Attorney Prepared, together
with a Will, Living Will and other vital Estate Planning documents.
Gay
and Lesbians- Living Will/ Advance Directives Planning Ahead For Your Health
Care:
Compiled
by Kenneth Vercammen
In
the absence of a Living Will or other legal arrangement if you become disabled,
your partner generally has no say regarding medical care or life support. Your
partner cannot access your assets. Your partner cannot receive information on
your medical status or medical care. Advance directives are very personal
documents and you should feel free to develop one which best suits your own
needs. All States have declared that competent adults have the fundamental
right in collaboration with their health care providers, to control decisions
about their own health care. States recognize in their law and public policy,
the personal right of the individual patient to make voluntary, informed
choices to accept, to reject or to choose among alternative courses of medical
and surgical treatment. If you have a Living Will, you can designate your
partner as a decision maker.
WHY
LIVING WILLS
Modern
advances in science and medicine have made possible the prolongation of the
lives of many seriously ill individuals, without always offering realistic
prospects for improvement or cure. For some individuals the possibility of
extended life is experienced as meaningful and of benefit. For others,
artificial prolongation of life may seem to provide nothing medically necessary
or beneficial, serving only to extend suffering and prolong the dying process.
States recognize the inherent dignity and value of human life and within this
context recognize the fundamental right of individuals to make health care
decisions to have life-prolonging medical or surgical means or procedures
provided, withheld, or withdrawn. States recognize the right of competent
adults to plan ahead for health care decisions through the execution of advance
directives, such as Living Wills and durable powers of attorney, and to have
their wishes respected, subject to certain limitations.
PURPOSE
OF LIVING WILLS In order to assure respect for patients previously expressed
wishes when the capacity to participate actively in decision making has been
lost or impaired; to facilitate and encourage a sound decision making process
in which patients, health care representatives, families, physicians, and other
health care professionals are active participants; to properly consider
patients interests both in self-determination and in well-being; and to provide
necessary and appropriate safeguards concerning the termination of
life-sustaining treatment for incompetent patients as the law and public policy
of this State, the Legislatures have enacted Living Will/ Advance Directives
for Health Care Acts.
REQUIREMENTS
OF STATUTE The advance directive for health care (Living Will) requires a
writing executed in accordance with the requirements of the state law. It must
be either signed and dated in front of an attorney at law or other person
authorized to administer oaths, or in the presence of two subscribing adult
witnesses. If the two adult witnesses are used, they both must attest that the
declarant is of sound mind and not under undue influence. A designated health
care representative shall not act as a witness to the execution of the advance
directive. Since this is a legal document, it must be executed properly to be
valid under the statute.
HEALTH
CARE REPRESENTATIVE The declarant must designate one or more alternative health
care representatives. "Health care representative" means the person
designated by you under the Living Will for the purpose of making health care
decisions on your behalf.
WHEN
DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE An advance directive becomes
operative when (1) it is transmitted to the attending physician or to the
health care institution, and (2) it is determined pursuant to the Act that the
patient lacks capacity to make a particular health care decision.
Treatment
decisions pursuant to an advance directive shall not be made and implemented
until there has been a reasonable opportunity to establish and where appropriate
confirm, a reliable diagnosis for the patient which shall include the attending
physicians opinion concerning the nature, cause, extent, and probable duration
of the patients incapacity, and shall be made a part of the patients medical
records. For additional information or to have a "Living Will"
prepared, see your attorney. In addition, be certain your Last Will and
testament is up to date.
As
Americans, we take it for granted that we are entitled to make decisions about
our own health care. Most of the time we make these decisions after talking
with our own physician about the advantages and disadvantages of various
treatment options. The right of a competent individual to accept or refuse
medical treatment is a fundamental right now fully protected by law.
But
what happens if serious illness, injury or permanent loss of mental capacity
makes us incapable of talking to a doctor and deciding what medical treatments
we do or do not want? These situations pose difficult questions to all of us as
patients, family members, friends and health care professionals. Who makes
these decisions if we cant make them for ourselves? If we cant make our
preferences known how can we make sure that our wishes will be respected? If
disagreements arise among those caring for us about different treatment
alternatives how will they be resolved? Is there a way to alleviate the burdens
shouldered by family members and loved ones when critical medical decisions
must be made?
Living
Will:
By
using documents known as advance directives for health care, you can answer
some of these questions and give yourself the security of knowing that you can
continue to have a say in your own treatment. A properly prepared Living Will
permits you to plan ahead so you can both make your wishes known, and select
someone who will see to it that your wishes are followed.
After
all, if you are seriously ill or injured and cant make decisions for yourself
someone will have to decide about your medical care. Doesnt it make sense to
?
Have your partner or another person you trust make decisions for you,
?
Provide instructions about the treatment you do and do not want, or
?
Both appoint a person to make decisions and provide them with instructions.
_____
Rights and Obligations of Domestic Partners Procedural Requirements:
Establish
Eligibility
A
domestic partnership shall be established when all of the following
requirements are met:
1.
Both persons have a common residence within the State of New Jersey, or have a
common residence in another jurisdiction and at least one of the persons is a
member of a New Jersey State-administered retirement system, and both persons
are otherwise jointly responsible for each others common welfare as evidenced
by joint financial arrangements or joint ownership of real or personal
property, which shall be demonstrated by at least one of the following:
a.
a joint deed, mortgage agreement or lease; b. a joint bank account; c.
designation of one of the persons as a primary beneficiary in the other persons
will; d. designation of one of the persons as a primary beneficiary in the
other persons life insurance policy or retirement plan; or e. joint ownership
of a motor vehicle;
2.
Both persons agree to be jointly responsible for each others basic living
expenses during the domestic partnership;
3.
Neither person is in a marriage recognized by New Jersey law or a member of
another domestic partnership;
4.
Neither person is related to the other by blood or affinity up to and including
the fourth degree of consanguinity;
5.
Both persons are of the same sex and therefore unable to enter into a marriage
with each other that is recognized by New Jersey law, except that two persons
who are each 62 years of age or older and not of the same sex may establish a
domestic partnership if they meet the requirements of this section.
6.
Both persons have chosen to share each others lives in a committed relationship
of mutual caring;
7.
Both persons are at least 18 years of age;
8.
Both persons file jointly an Affidavit of Domestic Partnership; and
Neither
person has been a partner in a domestic partnership that was terminated less
than 180 days prior to filing of the current Affidavit of Domestic Partnership,
except that this prohibition shall not apply if one of the partners died; and,
in all cases in which a person registered a prior domestic partnership, the
domestic partnership shall have been terminated in accordance with the
provisions shown below under terminating a Domestic Partnership.
For
more information, go to http://njwillsprobatelaw.com/probate_estate_planning_for_gay_and_lesbian_couples.html?id=1286&a=
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