Clients and Conflicts in Probate

Over the next few articles, we’ll take a step back and look at some ethical issues that can arise when dealing with probate. We’ll only look at a few and then take some time to figure out how to handle such situations. In our first article, we’ll look at clients, who they are and how to avoid potential conflicts. If that sounds appealing, please continue reading. We hope it is both informative

Understanding the Attorney Roles

In most cases, the executor (or personal representative) of an estate believes that the attorney representing the estate is their own. However, as previously stated, this is an incorrect belief. In the majority of cases, the attorney represents only the estate. This does not include the beneficiaries.

The probate attorney, on the other hand, has a fiduciary duty to any estate beneficiaries. In fact, a will can be declared invalid due to “undue influence” if a beneficiary has a too-close relationship with an estate’s attorney! As you can see, it’s best to keep things strictly professional.

Conflicts of Interest in Probate

Any attorney who represents both the deceased and any beneficiaries may be in violation of conflict of interest rules. Please keep in mind that while an attorney may represent executors individually, there must be no hint of a potential conflict of interest.

A trustee may also have a conflict of interest if they are the parent of a remainderman who is their own child, which is especially true if the child is an infant. In the event of a conflict of interest, appointing a Guardian for the child would be far more beneficial.

Scott Counsel Is Here to Help

“There is certainly a lot to consider when dealing with all manner of things related to estates, rules and regulations, and a host of other things,” says Justin Scott, a probate attorney in New Jersey. And, to be honest, it can be overwhelming at times, and all that information can end up doing more harm than good, making already difficult decisions even more difficult.

If you have any questions about any of these rules, or if you are unsure whether or not there may be a conflict of interest, please come and speak with me or one of my colleagues. We would be happy to explain all of this to you in greater detail and clear up any confusion you may have. We know the road ahead will be difficult enough without adding more obstacles. We want to assist you in avoiding those roadblocks

As you are aware, dealing with the aftermath of a person’s death can be difficult. It would be extremely beneficial to be aware of, and at least have a basic understanding of, the pitfalls and unseen obstacles that can befall someone if they are not cautious, and we hope that this article has shed some light on the situation. Contact us today to speak with our experienced and ethical probate attorneys.

I’ve Got the Power, of Attorney!

Okay, okay, you got me. I apologize for my 80s T.V. reference, but I thought it was rather fitting, as sometimes attorneys can (and do) seem like superheroes. That said, the term Power of Attorney doesn’t necessarily mean that the person you have chosen to trust with your affairs is going to dress up in spandex and spend their nights fighting crime in your name. Although you do have to admit it’d be pretty awesome if they did!

What is a Power of Attorney?

Power of attorney isn’t actually referring to a person at all! Rather, it is a written document that says you have given permission to another adult to tell other people what to do with all of your things since you are unable to do it yourself. This includes things like real property (i.e. land) or even bank accounts, as well as handling all the rest of your financial or legal matters.

It also doesn’t necessarily mean you have to be dead. Generally, it is used when someone is incapacitated by some physical or mental reason and can’t speak for themselves, or do all the things that need to be done. So, in review, the power of attorney allows your spouse, a friend, or a family member (also known as an agent), to act on behalf of you (also known as the principal).

Types of Power of Attorneys

So, okay, power of attorney! That’s fantastic! But you might be confused. You might be asking yourself, “Hey, is there more than one kind of power?” And the answer to that question is indeed a resounding YES! There are in fact two types of power of attorney, and we’ll look at them now.

Limited Power of Attorney

Limited: With limited power of attorney, that means that a person has the authority to do one thing and one thing only (like selling your house, for example). If you can’t do it yourself, you’d definitely want to have someone you can trust help you. If that’s the case, then the “Limited” option is probably the best choice for you.

General Power of Attorney

General: According to Justin Scott, a New Jersey attorney, “The general power of attorney allows the representative assigned by the principal the ability and authority to act in any way necessary on anything and everything, should the principal become mentally incompetent or otherwise disabled.” It’s important to note that these general powers of attorney usually have a provision that will allow the representative (or agent) to act even in the event that the principal becomes disabled. However, it automatically ends when the principal person dies.

So now you know a little bit more about power of attorney—who it is and what it does. Hopefully now, if you weren’t before, you will be able to feel at least a little more confident when it comes to matters like these. I know I am, and I hope that you are too!

Trusts, and the Probate Process

It is likely that you’ve heard of a trust. In case you’re unsure what it is, though, a trust is simply this: A trust is an arrangement where things like property, money, etc. are held in safekeeping. What kind of trust should you set up if you’re thinking about it? In this article, we’ll answer that question! Let’s take a look.

Why Do I Need A Trust?

Trusts created under a will can be set up for just about anyone: minor children, adults, or any other person whom you have designated as a beneficiary. It can also be done for a multitude of reasons like tax savings, giving the beneficiary the ability to handle finances or if you have a particular way you would like to distribute all of your assets.

Why Do I Need A Trust?

A trust that is created under a paragraph in your will serves to appoint a trustee. The appointed person then both administers and invests the funds for the trust, and they also pay income and/or principal from the trust following the terms and guidelines that are named in the will.

Attorney Justin Scott sheds more light on the matter. “It can be nerve-wracking to try and think of if you’ve covered all your bases when planning for the future. It’s no question that something will inevitably get left out or you’ll forget this or that. And while you can most certainly create a will on your own, it can still be a bit confusing. If you’d like assistance with drawing up a will or living trust, or if you have questions about anything else, my team and I would be happy to assist you, and get you the help you need.”

Contact Scott Counsel to Learn More About Wills and Trusts

So as you can see, there are a couple of very good reasons to have a will and trust. Of course, this may not be everything involved in the process; it wasn’t meant to be. Rather it is a basic overview of the steps, in order that you may have a general idea of what to expect if you’re thinking of setting up a will and trust for your loved ones. As Mr. Scott said, it can be difficult to know whether you’ve covered all your bases. And while it’s true that you may not get them all, at least by having both, you can rest easy knowing you’ve covered most of them. And most of them are better than none.

What Happens Without a Will?

I’ll let you in on a little secret… I have a lot of stuff. I bet you probably do too, right? It can be kind of scary trying to figure out what will happen to it after you’re gone. You might be even more scared if you don’t yet have a will or just simply don’t want to make one. In either case, I have some information that you just might find helpful, and then I can feel good about myself again. So here we go!

What To Do if There is No Will?

In the great state of New Jersey, if you have no idea what to do and you have no will, the law will come to bat for you and decide how to divide up all those things you left behind. For now, though, let’s just look at the stuff that’s left in your name alone. There are seven ways this can go, and they are as follows:

  • If you die and leave behind your spouse and a child (from that same marriage), your spouse gets EVERYTHING. (This does not include stepchildren or children from a previous marriage).
  • If you die and leave behind a spouse and child from a previous marriage, that spouse gets 25% of your estate, but no less than $50,000 or more than $200,000, plus one-half of any balance on the estate. Your kids get that balance equally, while grandchildren take the share of the deceased parent.
  • Say you die and leave behind a spouse, child(ren), and a stepchild or children, the spouse gets the first 25%. No less than $50,000 or more than $200,000, plus three-fourths of any estate balance. Again, children divide it equally and grandchildren take the share of the deceased parent.
  • If you die and have a spouse but no children, but you have your parents, the deal is the same as before, only this time your parents split the balance of the estate equally between themselves.
  • If you die and you have a child or children but no spouse, your kids inherit equally, while grandchildren will inherit the share of the deceased parent.
  • If you die and you don’t have any of those, but you have parents, your parents get it all. If you don’t have parents, your siblings will inherit equally. For nieces and nephews, it is the same as above: they inherit what their parents left behind.
  • Finally, when no immediate family is in the picture, your property can go to all those to whom you are distantly related to (like grandparents, aunts, uncles, cousins, etc.). Or, it can even be taken by the State if all else fails.

Contact Scott Counsel Today

So here’s a quick glimpse for you at what happens to your things after you’re gone. New Jersey estate planning attorney Justin Scott is quick to assure us. “We know you have a lot of memories and all those things mean a lot to you,” he says, “so please rest assured that we will do everything we can to make sure those precious memories are very well taken care of. Contact New Jersey Estate Planning attorney, Justin Scott, to get started on your will.

The Importance of Having a Will

Okay, so, everyone probably already knows what a will is. If you’ve been around long enough, it’s likely you’ve at least heard of one. For those who may not be familiar, let’s talk a little about what a will is and why it’s handy to have one.

What is a Will?

The most basic of basic definitions is this: A will is a piece of paper (or multiple pieces) that tells everybody who gets what when you kick the bucket. If done right, it should name an executor/rix, and also an alternate, just in case the first person doesn’t want to step up. It should name a trustee if a trust is available, and also a Guardian to take care of any minor children.

It should also state that anyone named in it should not be required to post a bond for their position, as well as specific inheritances and determine how the rest of the stuff (including the estate) should be divided up.

How Can I Have a Will?

Now, I know what you’re thinking: Can I have a will? And the good news is yes, you can! Just as long as you’re over the age of eighteen. You just need two people who are at least eighteen too to sign it with you as witnesses. If it’s done right, you shouldn’t have any issues with proving it, as it will become self-proving with the signatures by the same witnesses as well as that of a notary public.

Why Do I Need a Will?

That’s great and all, right? But why do you even need one in the first place? I’m glad you asked! As stated earlier, a will helps people know who gets what from all your piles of stuff. If you don’t have a will, there could be arguments and all sorts of unpleasant things can happen, so it’s better to have one than not. But, it’s even better to have one that is done properly.

After the will is executed, any changes should be made through either a codicil or an entirely new will. Any markings, cross-outs or handwritten changes can leave the Surrogate unable to act and force probate in the Superior Court.

Finally, the personal representative named in the will also have a list of responsibilities. These include:

  • Locating and performing an inventory of all the estate’s assets
  • Paying outstanding debts
  • Filing appropriate inheritance or income tax returns
  • Having necessary paperwork ready for the transferring of property
  • Paying any and all fees
  • Opening and maintaining an estate checking account
  • And finally, disbursing estate funds to beneficiaries and filing refunding bonds and releases, which are documents that show someone received his or her inheritance

According to Justin Scott, a New Jersey estate planning attorney, “death and all that comes with it is a confusing enough time for anyone.” When mourning a loved one, the last thing anyone needs is to be confused by things they don’t necessarily understand or, quite frankly, care about. This is where we step in. We can assist you in figuring things out and, hopefully, alleviate some of your burden.”

Contact our New Jersey Estate Planning Lawyer to Learn More

If you have any questions or concerns about drafting or executing a will in New Jersey, please call Scott Counsel or fill out our contact form. Our New Jersey Wills & Trusts lawyers are here to help guide you along the process to give your family the peace of mind they need.

Why Do You Need A Living Trust And A Will?

Some things in life just go well together: Cereal and milk, peanut butter and jelly, movies and popcorn. But there’s another couple of things that go well together too—living trusts and wills. Now, if you know even a smidge about living trusts and wills, you might think that you would be just fine without a trust if you’ve already got a will—since they’re basically kind of the same thing. The truth is, however, that it’s a good idea indeed to have both if you don’t already.

“But why?” I hear you screaming at your computer screen. “Why do I actually need both?”

Living Trusts Never Include Every Single Thing You Own

The biggest reason why it’s important to have a will is that a living trust only covers all the stuff you’ve listed, in writing, in the trust. And almost no one transfers every single thing they own to the trust. I mean, I guess you could try, but if you’re like me, you have a lot of stuff. Doesn’t it just seem a lot simpler to transfer some of it and not all of it?

Even if you did somehow manage to get all that stuff of yours into a trust, there’s always a chance that you’ll get even more of it before you die, and that stuff isn’t going to be covered by your living trust because you didn’t have it included at the time you made the trust. Make sense?

A Will Can Do Things A Trust Cannot

To explain this in simpler, more cultural terms, think of a Living Trust like Robin and the Will is like Batman. Sure, Robin is great and whatnot. He can do a lot of cool things and he can hold his own, but Batman is on a completely another level. It’s the same thing with Wills and Living Trusts.

For example, if you have minor children, and you want someone to take care of them when either you or your spouse dies, you must use a will. You cannot use a living trust. Also, in a will, you can cancel any debts that you are owed, and that’s another thing that a living trust cannot do.

A Final Word From Justin Scott

Attorney Justin Scott sheds more light on the matter. “It can be nerve-wracking to try and think of if you’ve covered all your bases when planning for the future. It’s no question that something will inevitably get left out or you’ll forget this or that. And while you can most certainly create a will on your own, it can still be a bit confusing. If you’d like assistance with drawing up a will or living trust, or if you have questions about anything else, my team and I would be happy to assist you, and get you the help you need.”

Scott Counsel Welcomes April Smith

April Smith Bio pic

April Smith Bio picScott Counsel Estate and Elder Care Law is pleased to welcome April Smith to our practice as our new Regional Director of Marketing. This position was previously held by Helene Weinstein who has led our marketing efforts since the inception of the practice.

Mrs. Smith has been in the senior living industry for 12 years. She started her career as a caregiver for Home Instead Senior Care and was promoted to Director of Marketing within her first year. In her time there, she organized their annual “Be a Santa to a Senior Program” which has delivered over 1,000 gifts to isolated seniors in the community.

Mrs. Smith served as a liaison between her care team and doctors, hospitals, rehabs, and local healthcare partners. She also educated seniors on services available to them in the comfort of their own homes. She then moved on to working in assisted living communities serving as a resource for families finding placement for their loved ones.

In her new role with Scott Counsel, she will support the efforts of the marketing team in educating seniors and families on the importance of estate planning and having an advocate for elder law issues.

When Mrs. Smith is not working, she spends her time with her husband, four children, and three dogs.

Ms. Weinstein will begin her new role as Director of Special Projects where she will assist Principal attorney, Justin L. Scott, Esq., in the firm’s continued growth. Ms. Weinstein said she is “thrilled to welcome April to this challenging and rewarding position and is certain she will be successful for many years to come.”

Mr. Scott similarly commented, “The news today helps align our firm with some of the biggest elder law practices in the state. Our mission is still grounded in the belief that every life deserves a plan. I am honored to work alongside such talented people.”