Timesheets on hourly basis in Probate cases

    Timesheets on hourly basis in Probate cases

         Probate is usually handled on an hourly basis, rather than on a 5% of estate or $25,000 flat fee. The Law Office will need to prepare timesheets and send out timely bills.

Suggestions for new staff preparing timesheets

         

1. We Type what you did for retained Client.  

 

2. Date for each item.

3. Put both client last name and adversary name or town that is listed on outside of file.    

 

4. Description of Services-  

       ex. Hearing, etc.  If you are preparing a letter to a client advising them of a specific event, such as a hearing, trial, deposition, arbitration, on your timesheet put the date, time, and location. Your details are used to update the calendar, the client to do list, and occasionally the statement of services to client. Therefore, make sure date and time you write down is correct.  The description should be result oriented - what did you achieve.  The description should be legible and able to be understood by our client, your teacher and parents.

 

 

     Use this where beneficiary objects to Will or challenges the way the Executor is handling the Estate.

Why the Attorney Charges a consult fee for Probate issues when caller is not the Executor

 

Why the Attorney Charges a consult fee for Probate issues when caller is not the Executor 

         Our office will often receive calls from disgruntled children or persons who did not inherit under the Will or who do not believe they are receiving there fair charge. We Charge then a consult fee. Remember if they are unwilling to pay an initial consult fee they will not want to pay a retainer.

             The same for beneficiaries who are not happy with the way the estate is being handled. We charge a consult fee. We do not charge a consult fee if the Executor contacts since you want to be retained to represent the estate. 

 

  We email this to potential client

         

 

1. Office Call to schedule appointment for consultation

2. Set up folder for appointment

3. Review Questionnaire filled out by client. 

4. Obtain information such as name, address and telephone number and any specific wishes.  

5. Interview with client,   

6. Discuss information regarding value of real estate, life insurance and other assets. 

7. Discuss distribution of estate and selection of beneficiaries. 

8. Obtain information regarding names of family members. 

9. Discuss duty of Executor. 

10. Discuss Power of Attorney, Probate and Living Will, 

11. Answer legal questions.   

Consult fee is $200 and is due prior to initial consultation.

   Visa, Master Card and American Express accepted. Please make Checks payable to:

The Trust within a Will if minors will inherit- Testamentary Trust

The Trust within a Will if minors will inherit- Testamentary Trust

 

     The Will usually provides for a trust to hold money for children or beneficiaries under age of 21. If the Will provides for a Trust, the Trustee will have to sign paperwork with the Surrogate/ Probate Court. For example, in NJ when a Testamentary Trust needs to be set up, the named Trustee under the Will must sign an Acceptance of Testamentary Trusteeship and an Authorization To Accept Service of Process (Power of Attorney).  The Surrogate, prior to preparing the forms will need:  1) the name and residing address of the named Trustee and 2) names and addresses of the beneficiaries and their interest under the Testamentary Trust 3) Article under which the Testamentary Trust appears and 4) the title of the Testamentary Trust.  The Surrogate will issue Letters of Trusteeship and a Trustee Short Certificate. 

 

        A Substitute Trustee occurs when the first appointed Trustee dies or resigns or is removed before completing his/her duties as Trustee, as required.  This action must be brought to the Superior Court Probate Part.  The papers are filed with the Surrogate’s Court in the County of original procedure.  After the Superior Court Probate Part enters a Judgment appointing a Substitute Trustee, the appointed Substitute Trustee must go to the Surrogate’s Court to sign an Acceptance of Substitute Trusteeship and an Authorization To Accept Service of Process (Power of Attorney). The Surrogate will issue Letters of Substitute Trusteeship and a Substitute Trustee Short Certificate Source http://nj.gov/counties/mercer/officials/surrogate/s_trusteeships.html

 

     The Uniform Probate Code addresses Testamentary Trusts for children. SECTION 3-913. DISTRIBUTIONS TO TRUSTEE.

(a) Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee informs the beneficiaries as provided in [Section 813 of the Uniform Trust Code]. 

(b) If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if he apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and he may withhold distribution until the court has acted. 

(c) No inference of negligence on the part of the personal representative shall be drawn from his failure to exercise the authority conferred by subsections (a) and (b). 

Comment 

This section is concerned with the fiduciary responsibility of the executor to beneficiaries of trusts to which he may deliver. Normally, the trustee represents beneficiaries in matters involving third persons, including prior fiduciaries. Yet, the executor may apprehend that delivery to the trustee may involve risks for the safety of the fund and for him. For example, he may be anxious to see that there is no equivocation about the devisee’s willingness to accept the trust, and no problem of preserving evidence of the acceptance. He may have doubts about the integrity of the trustee, or about his ability to function satisfactorily. The testator’s selection of the trustee may have been based on facts which are still current, or which are of doubtful relevance at the time of distribution. If the risks relate to the question of the trustee’s intention to handle the fund without profit for him, a conflict of interest problem is involved. If the risk relates to the ability of the trustee to manage prudently, a more troublesome question is posed for the executor. Is he, as executor, not bound to act in the best interests of the beneficiaries? 

In many instances involving doubts of this sort, the executor probably will want the protection of a court order. Sections 3-1001 and 3-1002 provide ample authority for an appropriate proceeding in the court, which issued the executor’s letters. Absent a court order, the personal representative should consider demanding that the trustee notify the trust beneficiaries of the distribution as authorized by subsection (a). States that have not enacted the Uniform Trust Code should substitute a reference to their local statute on a trustee’s duty to keep the beneficiaries informed. 

In other cases, however, the executor may believe that he may be adequately protected if the acceptance of the trust by the devisee is unequivocal, or if the trustee is bonded. The purpose of this section is to make it clear that it is proper for the executor to require the trustee to register the trust and to notify beneficiaries before receiving distribution. Also, the section complements Section 702 of the Uniform Trust Code by providing that the personal representative may petition an appropriate court to require that the trustee be bonded. 

The Uniform Probate Code is an excellent source for Trust and Will language even in states that still have not adopted it. Source: https://www.uniformlaws.org/viewdocument/final-act-with-comments-135?CommunityKey=35a4e3e3-de91-4527-aeec-26b1fc41b1c3&tab=librarydocuments

Beneficiaries need to Sign Release & Refunding Bond-Sample letter

 

Approval of the Court and/or Beneficiaries prior to distribution

        When the estate is ready to be distributed, the Executor or the accountant should prepare an income and expense report. In NJ we often provide a copy of the NJ Inheritance Tax Return, plus the estate account checkbook ledger. If all the beneficiaries sign the release and refunding bond, then the Executor can send them their checks.

 

                                        Date

             Estate of ______

Beneficiaries need to Sign Release & Refunding Bond-Sample letter

Dear 

 

      Under __ law it is the duty of the fiduciary [Executor or Administrator] to make arrangements to pay bills and other estate expenses and carry out instructions under the Will. NJSA 3B:23-24 provides the fiduciary shall take a Release and Refunding Bond from each beneficiary.

 

      Please read the enclosed draft Release and Refunding Bonds and estate accounting. If you have any questions regarding the accounting, please call the executor directly since they have the bank records. The law office does not have bank records. Every beneficiary will need to sign his or her Release and Refunding Bond. If any beneficiary does not sign their release and refunding bond, then the estate funds cannot be distributed to anyone until approved by the Superior Court. An Accounting and Court approval under Rule 4:87-1 would take many months.  law office is requesting all beneficiaries to immediately make arrangements to sign the Release and Refunding Bond, and return it to my office. Please also note under Federal law each beneficiary must certify they do not owe child support. Please fill out the child support section by hand.

 

      The Release & Refunding Bond must be filed with the County Surrogate and a fee paid.  

sample Release and Refunding Bond

 

Release and Refunding Bond 

___

COUNTY SURROGATE COURT

 

IN THE MATTER OF THE ESTATE OF

 

d1

                                            Deceased.

____________________________

 

KNOW ALL MEN BY THESE PRESENTS, That I, b1

residing at  ______ 

                                        herein designated as the Obligor, am hereby held and firmly bound unto  ___  Executor herein designated as the Obligee,

in the sum of $ ____

 

       lawful money of the United States of America, to be paid to the Obligee or to Obligee's certain Attorney, successors in office or assigns, for which payment well and truly to be made I bind myself, my heirs, executors and administrators firmly by these presents.  Sealed with my seal and dated the _____________    day of    ____________________________

 

      The Condition of the above Obligation is such, that whereas the Obligor has received from the Obligee the sum of $__________  representing the net proceeds of the estate of d1as my bequest under the Last Will and Testament of d1.

 

      And in Consideration Therefore, the Obligor has remised, released and forever discharged and by these presents does remise, release and forever discharge the Obligee, the Estate, Executor, Attorneys and Accountants for the Estate and other Agents of the Estate from all claims and demands whatsoever, in law or in equity, on account of or in respect to the estate of the said deceased and of Obligor's interest herein.

 

      Now Therefore, if the Obligor be a devisee, then and in that case if any part or the whole of such devise shall at any time hereafter appear to be wanting to discharge any debt or debts, devise or devises, which the said executor or administrator may not have other assets to pay, the Obligor will return said devise or such part thereof as may be necessary for the payment of the said debts or for the payment of a proportional part of the said devises; or

 

      If the Obligor be a distributee, then and in that case if any debt or debts, truly owing by the intestate, shall be afterwards sued for and recovered or otherwise duly made to appear, and which there shall be no other assets to pay, Obligor shall refund and pay back to the administrator, the Obligor's ratable part of such debt or debts, out of the part and share so 

 to the Obligor.

 

      Then the above obligation to be void, or else to be and remain in full force and virtue.

 

      The words "debt or debts" wherever used herein shall be deemed to include all taxes imposed upon or chargeable to the estate or owed by the deceased, including but not limited to Federal, __ or State or Sovereignty transfer inheritance, estate, death, transfer and income taxes, together with interest, penalties, costs, expenses and counsel fees, if any.

 

      If more than one person executes the within instrument, then words used in the singular shall be considered plural, and wherever herein any particular gender is used, it shall be inclusive of the masculine, feminine and neuter gender, where the text so requires.

      Pursuant to the NJ Civil Award Withholding Bill, L.1995, c. 334, I am submitting this certification that the above matter has been resolved and that I am entitled to receive money.

      a. Full name:                          b1

      b. Address:                            __________________________________

      c. Social Security number:  _______________________________

      d. Date of Birth:                     __________________________________

      

        Pursuant to the statute Public Law 1995, c334,  I certify that I do not have to pay child support.

     I hereby certify that the foregoing statements are true and I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

__________________________________LS    b1

Signed, Sealed and Delivered    

in the presence of

 

_______________________________                        

 

State of ___________________, County of   _________________  SS:  Be it Remembered, that on

 

_______________  before me, the subscriber, 

personally appeared  b1  who, I am satisfied,  is  the person  named in and who executed the within Instrument, and there upon  acknowledged that  b1 signed,  sealed and delivered the same as their act and deed, for the uses and purposes therein expressed.

                  

     _________________________________________

      NOTARY  SEAL  or ATTORNEY              

What is a Release & Refunding Bond in Probate

 What is a Release & Refunding Bond in Probate

 

         Under New Jersey law it is the duty of the fiduciary [Executor or Administrator] to make arrangements to pay bills and other estate expenses and carry out instructions under the Will. NJSA 3B:23-24 provides the fiduciary shall take a Release and Refunding Bond from each beneficiary.

 

         The Attorney will prepare Release and Refunding Bonds and accountant or executor prepare an informal estate accounting. If a beni has any questions regarding the accounting, please call the executor directly since they have the bank records. The law office does not have bank records.

          Every beneficiary will need to sign their Release and Refunding Bond. If any beneficiary does not sign their release and refunding bond, then the estate funds cannot be distributed to anyone until approved by the Superior Court. An Accounting and Court complaint for approval must be filed under Rule 4:87-1. This would take many months. 

      We request all beneficiaries to immediately make arrangements to sign the Release and Refunding Bond in front of a notary, and return it to the office so all beneficiaries can receive their funds. Please also note under Federal Law and New Jersey law each beneficiary must certify they do not owe child support.   NJ Law makes child support a lien and to be paid by the estate by the Executor. The notary must sign on last page at end to be valid.

 

         The Release & Refunding Bond must be filed with the County Surrogate and a fee paid.  

Finalizing the Estate after Debts paid, house sold and assets ready to be divided

Finalizing the Estate after Debts paid, house sold and assets ready to be divided

     After all tax returns filled, debts and expenses paid and real estate sold, the Executor should get ready to distribute they assets. The taxes have been paid and the executor has received tax clearances from the IRS and the state. But first they either need Court approval or in many states simply approval from all of the beneficiaries. 

         When such a formal proceeding is not required in your state, it is nevertheless good practice to require all beneficiaries to sign a document, prepared by an attorney, in which they approve of your actions as fiduciary and acknowledge receipt of assets due them. This protects the fiduciary from later claims by a beneficiary. A final income tax return must be filed and a reserve kept back for any tax that may be due.

     Below are the forms used in New Jersey so all the beneficiaries can approve can receive money without court approval. The beneficiary will eventually be requested to sign a Release and Refunding Bond. If they have evidence of misappropriation, they may consider asking the executor for an informal accounting prior to signing the Release and Refunding bond. If they have concern regarding the handling of an estate, the beneficiary should schedule an appointment to consult an estate administration attorney.