The following article about Having a Will Prepared Does Not Have to Be Expensive! is featured on New-Jersey-Lawyers.com

The below article has 40 topics. We are posting topics 21-30 today. You can read the entire article on New Jersey Lawyers under Having a Will Prepared Does Not Have to Be Expensive!

By Theodore Sliwinski, Esq.

21. What are some points to know when making a will?

a. You don’t need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.

b. You can change it at any time you wish, as your assets, beneficiaries or desires change.

c. Your will is not recorded before death; no one need know of it if that is your wish.

d. The existence of the will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.

22. How is my estate distributed if I don’t have a will?         

If you die without a will, or “intestate,” your assets and estate are divided according to New Jersey’s intestate laws. The Surrogate will determine whether or not an administrator needs to be appointed depending on the size of the estate.

The laws of New Jersey state provide that;

a. If you die leaving a spouse and children, who are also the children of the spouse, the spouse receives 100% of the estate and no bond is required to be posted.

  b. If you die leaving spouse and children of a prior marriage, the spouse receives the first 25% (but not less than $50,000 and no more than $200,000) plus ½ of the balance of the estate. The children of the decedent share the remaining balance of the estate. If a child predeceased the parent and that child produced grandchildren, the grandchildren share the balance that would have been their parent share.

 c. If you die leaving spouse and no children, but are survived by a parent(s) the spouse receives first 25% (but not less than $50,000. and no more than $200,000.) plus 3/4 of the balance. Surviving parent(s) receive all other assets of the estate.

If you die leaving child or children but no spouse, children will take equally. Grandchildren will take their deceased parent’s share.   

d. If you die leaving no spouse or children, parent(s) will take all. If no parent survives, brothers and sisters of decedent will take equally. If a sibling predeceased the decedent then the nieces and nephews will take their deceased parent’s share.

e. If you die leaving a spouse and children and the surviving spouse has children from a previous relationship, the spouse receives the first 25% (but no less than $50,000. and no more than $200,000.) children of the decedent share the remaining balance of the estate. The stepchildren do not share in the estate.

  you die leaving a surviving spouse and only step‑children, the surviving spouse receives 100% of the estate.

g. If you die without a surviving spouse who had children from a previous relationship and you have no other descendents, such as parents, siblings, grandparents or other direct descendants, the step‑children share 100% of the estate.

23. What is the interplay between a will and life insurance?

A life insurance policy is a contract between the policyholder and the company. The life insurance proceeds are paid according to the terms of each contract. It is important to emphasize that the proceeds of life insurance pass outside of the will. Therefore, the life insurance contract will determine who receives the proceeds instead of the terms of the will.

Life insurance should be payable specifically to a designated beneficiary. An alternate beneficiary or beneficiaries as well as a primary beneficiary should be named in each life insurance policy. An alternate beneficiary is important in case of simultaneous death of both the policyholder and the beneficiary, or if the beneficiary dies first. If there is no alternate beneficiary named, then the life insurance money passes to the estate. Consequently, these monies are subject to New Jersey inheritance tax and the executor’s or administrator’s commission.

24. What are the type of taxes that can influence your will?                   

There are three kinds of taxes that can influence the provisions of your will: inheritance, estate and gift. An inheritance by will, by law, by surviving joint owner, or from life insurance is not income and is not subject to income tax.

25. What is the New Jersey inheritance tax?

The inheritance tax is a tax payable by an heir or beneficiary for the right to acquire the property of a deceased person. The tax is determined by the amount inherited and by the relationship of the individual to the deceased.

26. I don’t own much property. Can’t I just make a handwritten will?

No, this is a horrible idea. Handwritten, unwitnessed wills, are called “holographic” wills. It is very uncertain if a holographic will can be admitted to probate. To be valid, a holographic will must be written and signed in the handwriting of the person making the will.

A holographic will is better than nothing if it’s valid in your state. However, a valid will signed in front of witnesses is much better to have. If a holographic will goes before a probate court, then the court may be unusually strict when it examines it to be sure it’s legitimate. Moreover, many holographic wills can be written very ambiguously, and your estate could eventually be distributed to people that you did not want to receive your hard earned savings.

27. Can I use my will to name a guardian for my young children and to manage their property?

Yes. One of the best parts of having a will is that you can name a guardian to care for your young children if you should die. If both parents of a child die or become otherwise unable to care for a minor child, another adult who is called a guardian must step in. The guardian will be responsible for raising your children until they become legal adults.

You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a “property guardian,” a “custodian,” or a “trustee” to manage the property. In most cases one guardian raises the children, and also manages any inheritance(s) left for the children.

28. Am I legally required to leave an inheritance to my spouse and children?

If a spouse dies, then the surviving spouse may elect to take a one‑third share of their estate. This is called an elective share. Basically, a spouse can’t be disinherited. The surviving spouse has a right to an elective share of the deceased’s estate. The only way that a surviving spouse can be completely disinherited is if the parties execute a prenuptial agreement. In a prenuptial agreement both spouses can agree to waive any claims to an elective share of each other’s respective estates.

Your elective estate not only includes property in your name alone, but it also includes most assets with beneficiary designations such as bank accounts, securities, IRA accounts, your interest in jointly held property, annuities, certain interests in trusts, the cash value of life insurance, and even property that you might transfer to a child during the one‑year period preceding your death. In other words, you cannot easily ignore your spouse’s rights to his or her elective share of your estate. Many clients ask me how the surviving spouse will be able to claim his or her share if the assets are left in trust for a child. The answer is that the surviving spouse can file a probate proceeding, and then force the child to return the assets to satisfy the elective share obligation.

Generally, it’s perfectly legal to disinherit a child. There is no law that requires a parent to leave an inheritance for their child.

30. Can someone try to challenge my will after I die?

Very few wills are ever challenged in court. It is a very expensive and time-consuming process to challenge a will. When a will is subject to challenge, it is usually done so by a close relative who feels somehow cheated out of a share of the deceased person’s property. The legal standard to invalidate a will is then it must be proven that the will suffers from a fatal flaw; a) the signature was forged; b) you weren’t of sound mind when you made the will; c) or you were unduly influenced by someone.

For all practical purposes, a person must be pretty far gone before a Probate Court will rule that the testator lacked the capacity to make a valid will. The mere fact that the testator may have been forgetful or he had the inability to recognize friends doesn’t, by itself incapacity. A will can also be declared invalid if a Probate Court determines that it as procured by “fraud” or “undue influence.” This type of cause of action usually involves some evil heir manipulating a person of unsound mind to leave allo, or most, of his property to the evil heir. Will contests based on these grounds are very hard to prove, and are rarely filed.

To Read the balance of this article or find a New Jersey Lawyer for wills, estates and trust visit www.New-Jersey-Lawyers.com or go to NJLawFirms.net for more listings of NJ lawyers dealing with wills, estates and trust.

 

 

The following article about Having a Will Prepared Does Not Have to Be Expensive! is featured on New-Jersey-Lawyers.com

The below article has 40 topics. We are posting topics 16-21 today. You can read the entire article on New Jersey Lawyers under Having a Will Prepared Does Not Have to Be Expensive!

By Theodore Sliwinski, Esq.

 

16. What is a guardian?

If a person dies with minor children, and if he leaves no spouse, then a guardian may be appointed by the court for minor children. A guardian will basically safeguard the interests of the children, and ensure that their inheritance is not squandered by the adults. In order to sell or dispose of a minor’s interest in a parent’s land, a guardian must be appointed by the Probate Court to sign the deed for them. Any expense of having the guardian appointed, bond for the guardian, appraisals, court costs and attorney’s fees are charged to the minor, and deducted from his share of the estate.

In some cases, the guardian applies to the Probate Court for permission and approval to sell and/or to spend the children’s money for their support or education. The guardian must also account for income and disbursements ‑ by the court action if necessary.

17. What are the New Jersey probate requirements?

The requirements to admit a will into probate are very basic. There are three general requirements:

a. The decedent must be a resident of the specific County  Surrogate, or if a nonresident, must have owned real property in New Jersey.

b. A certified death certificate must be provided to the surrogate.

c. The original will must be given to the County Surrogate.

d. The executor must fill out the probate application and pay the filing fees.

18. How is a will probated?

Upon the death of the testator or testatrix, the will is probated. This is the legal process which establishes the genuineness of the will. It is done by the County Surrogate or the Probate Court in the county where the testator or testatrix resides at the time of death. Many people have the erroneous conception that probate is a costly and lengthy procedure. In most cases this conception is untrue. New Jersey probate laws are basic and very “user friendly.”

About five years ago there was a major fad in the legal world. Many lawyers were advertising that living trusts were the “best thing since sliced bread.” Living trusts were advertised everywhere, on TV, in the newspaper, and at seminars. The bar basically outlawed lawyers from misrepresenting the benefits of living trusts to the public in their advertisements. Probate can be a very basic legal process. The component that can make the probate process expensive is when the heirs start to fight. If the heirs start to litigate during the probate process, then these costs can be very expensive.

The executor or the executrix is appointed by going to the Surrogate Court with the original will, and a certified death certificate. If the will is not self‑proven, at least one of the witnesses who signed the will must prove his or her signature on the will.

If the will, for any reason is not properly executed, then the County Surrogate can advise the executor as to the proper procedure in order to allow the will to be admitted to probate.

19. What are the guidelines for an executor/administrator?

If you have just probated a will and have been named Executor, or if you have qualified as Administrator for an estate with no will, then you may be asking yourself the question, “What do I do next?” Here are some basic guidelines to assist you.

a. A Notice of probate of the will must be served on all interested parties within sixty days of probate. The Notice of Probate of the will must advise them of the name and address of the Executor. A copy of the will should accompany this notice. If the will contains to any charitable bequests, then the notice must also be given to the Attorney General of the State of New Jersey, Division of Law, P.O. Box 112, Trenton, NJ 08625. After you send out the Notices of Probate of the will, then you are to file a proof of service by filing an affidavit that all parties were served by personal service, or regular and certified mail. The proof of service is filed with the County Surrogate.

b. The Executor/Administrator is responsible for determining and marshaling all assets of the estate. An estate checking account must be opened from which bills are paid. A bank will not open up an estate account unless a Federal ID number for the estate is obtained. You can call the IRS AT 800‑829‑1040 for an ID number. Moreover, an IRS form entitled SS4 must be completed to obtain a Federal ID number for the estate.

c. The Executor/Administrator is responsible for all debts, last illness expenses, inheritance and estate taxes, and administrative expenses from the decedent’s assets.

d. The Executor/Administrator is responsible for filing appropriate State and Federal tax forms as applicable, and forwarding any tax payments due.

e. The Executor/Administrator is entitled to a commission of 5% of the value of the gross estate (for estates up to $200,000.00) and 6% on income.

f. The Executor/Administrator may be required to prepare an accounting of the estate assets and disbursements and proposed distribution. There are two types of accountings. The first type is called an informal accounting, and it is used when the heirs are friendly and they don’t dispute the distribution plan or how the estate was handled. If the estate administration becomes adversarial, then another type of accounting must be prepared, and it is called a formal accounting. A formal accounting is usually prepared with the assistance of an accountant, and it is typically very expensive.

g. The Executor has the obligation to distribute the net estate in a timely manner, in accordance with the terms of the will. The Administrator distributes in accordance with the intestacy laws of the State of New Jersey.

h. Before any heir receives his share of the estate, he must  execute a form called a Refunding Bond and Release. Basically, this form specifies that if any new bills become due for the decedent, then the heir will return any monies paid to the estate. Once the executor receives the executed Release and Refunding upon, then the Executor/Administrator will send a check to the heir for his share of the estate. The original refunding Bonds and Releases are filed with the County Surrogate. The filing fee is $5.00 per page.

i. The Executor/Administrator is required by New Jersey law to initiate a child support enforcement order for any beneficiary receiving in excess of $2,000, prior to distribution of any money to the beneficiary. The search shall be conducted by a private judgement search company that will verify results.

20. What types of property are not distributed under a will?

It is important to emphasize that all of a person’s property is not distributed under his will upon death. Some types of real estate ownership, 401K plans, life insurances, pay on death bank accounts, are assets that are often not part of the decedent’s probate estate. Therefore, these types of assets pass outside of the will and the estate.

Another way to transfer property is through joint ownership. Real Estate that is owned by both husband and wife automatically becomes the sole property of the survivor.

If two or more persons other than husband or wife own real estate together, each owns an undivided share as tenants in common, unless the deed states they are to own “as joint tenants and not as tenants in common.” Generally, real estate held in joint ownership goes to the survivor or survivors when one of the joint owners dies. An interest in real estate owned by tenants in common passes to the heirs of the deceased.

Personal property may be owned jointly with right of survivorship, the survivor becoming the sole owner. Checking accounts, saving accounts, or stocks and bonds may be held in joint ownership with right of survivorship, or as tenants in common.

Finally, it is important to note that 401K plans and life insurance polices pass outside of the will. Even if you specify in your will that an heir shall receive the proceeds from your 401K plan and your life insurance policy, this will not control how these assets are distributed. In a 401K plan, the beneficiary that you name will control who receives this asset upon your death. Moreover, a life insurance policy is a separate contract. The beneficiaries listed in the policy will receive the life insurance proceeds regardless what the will specifies.

21. What are some points to know when making a will?

a. You don’t need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.

b. You can change it at any time you wish, as your assets, beneficiaries or desires change.

c. Your will is not recorded before death; no one need know of it if that is your wish.

d. The existence of the will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.

To Read the balance of this article or find a New Jersey Lawyer for wills, estates and trust visit www.New-Jersey-Lawyers.com or go to NJLawFirms.net for more listings of NJ lawyers dealing with wills, estates and trust.