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.

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.”

Social Security, Pension and Veteran Affairs: An Answer to Your Questions

You might be wondering exactly how the probate process deals with social security, pensions, or even Veteran affairs. After all, you’re reading this article, so that means you must at least be curious. If so, and you’ve got questions, congratulations! You’ve come to the right place! In this article, we’ll look at just exactly that, and hopefully give you answers to all those burning questions. So, without further ado, let’s get started!

The Social Security Act

The concept of Social Security can be a confusing one, but it can actually be quite beneficial. What does it do exactly? For one thing, the Social Security Act is able to provide for survivor’s benefits to family members, as well as other benefits to any eligible persons. These benefits can include monthly payments or if preferred, a lump sum death payment.

Who Is Eligible for Veteran Benefits?

If anyone who may be entitled to benefits dies, a member of the family or interested party should contact the local Social Security office for any further information.

Any widows, minor children, or other family members may be eligible for benefits, if applicable. Anyone interested in finding out more about this should contact the appropriate pension company official for further information regarding this matter.

If someone dies and they were a Veteran, you should contact the Veteran’s Administration if you are curious about burial or death benefit information.

A Final Word From Justin Scott

Hopefully, this information will be able to shed some more light on the situation. If you’re in New Jersey, you can contact Scott Counsel in Cherry Hill for more help or information.

Justin Scott, an attorney for the practice, says, “We know you have questions, and we are here to help point you in the right direction to find answers, as well as to help clear any hurdles you may come across. We’re here to help, and I or any of our other experienced attorneys will be here to walk this road with you every step of the way. That’s what we believe you not only need at a time like this, but it’s what you deserve.”

How To Settle An Estate (Part 2)

In “How to Settle an Estate (part 1), we took a closer look at six of the necessary steps in the process of settling an estate. If you’d like to check it out again, or in case you missed it the first time, you can find part 1 (here). When you’re ready, come back here and check out part 2 below, where we’ll cover the last six steps in the process.

If you’re ready, let’s continue!

Communicate With Beneficiaries

If the estate goes through probate, you’re going to have to send some very specific notices to some very specific people—beneficiaries. The court, or your lawyer, can help you in this regard. And regardless of whether or not any court proceedings take place, it’s not a bad idea to be in consistent communication with any and all beneficiaries.

It’s important that they be kept apprised of goings-on, as they can tend to grow suspicious and unhappy if they don’t hear anything for long periods of time. Even if nothing is really happening, let them know that you’re still working, things are still moving forward, and they’re still going to get their inheritance. If you aren’t open or honest with them, they can go to court and try to have you kicked out!

Take Care of Any Assets

This is one of the most important jobs of the executor. You want to make sure that the estate is well-maintained, small valuables are looked after and secure, and bigger items remain insured. Remember that your only goal here is to not lose money; it isn’t to reap any huge benefits.

Collect any Money Owed to The Estate

This step will probably take a lot of time and a lot of paperwork, but it’s generally pretty easy. You can also place any money you collect into the estate’s bank account.

Pay Any Bills Owed

As long as there’s money in the estate to pay them, it’s your responsibility to make sure that any and all legitimate bills get paid on time. Rest assured that you don’t have to pay anything out of your own money. If you don’t think there’s going to be enough, get some help from the court or an attorney on what should take priority!

Deal With any Taxes

If the person who has died has a tax preparer, they can be a tremendous asset here, as you’ll need to file taxes not only for the deceased but also possibly the estate as well (but only if the estate was over $5 million). Smaller estates may owe a separate tax, but that all depends on where the person lived or owned property.

Distribute Assets

When all debts and taxes are paid and probate is finally closed, your final job is to distribute the assets among beneficiaries. Then you can breathe a sigh of relief because your job is finally done!

So ends our closer look at how to settle an estate! Should you need any assistance, contact Scott Counsel today and speak with our Estate Planning Attorneys.

How To Settle An Estate (Part 1)

In this article, our New Jersey estate planning attorney will explain how to settle an estate. Please note, however, that this article will only cover the first six items. So, without further ado, let’s jump in and get started!

Find the Will

A will is an important thing to have, but you cannot do your job as executor until you find it. Sometimes that’s an easy task, and for others, it’s not. It’s a very important document, and chances are good that the person will have kept it somewhere safe. Look everywhere you can to find it.

File The Will in Probate Court

So, you found the will, now what? You’ll want to file it with the local probate court, but make sure to give them the original while still retaining a copy for yourself. Even if you don’t think you’ll need to deal with probate hearings, you must still file the will with the court.

Notify Agencies and Businesses of the Death

This includes:

  • The post office
  • Utility companies
  • Credit card companies
  • Banks, and
  • Other businesses the deceased may have had an account with.

You’ll also want to notify any agency through which the deceased was receiving any benefits (like the Social Security Administration). The faster you do, the faster any payments can be stopped and you don’t have to worry about giving money back that the estate isn’t entitled to. And less hassle is always good.

Inventory Assets and Get Appraisals

If you’re going to go through probate, you’ll need a comprehensive list of all the stuff the deceased person owned. Also, it can help you to better keep track of valuables and decide how you’re going to transfer the different items, divide property among beneficiaries who get equal shares, and determine whether or not the estate will owe any state or federal estate taxes.

Determine Whether or Not You Need Probate

In order to do this, you’ll need to figure out the value of all the property that is subject to the probate process, determine how title is held, and learn the rules on what estates can qualify for simpler procedures. It would also be wise to hire an attorney to help with any probate paperwork or help to solve any problems between beneficiaries and creditors.

Coordinate with a successor trustee

If the deceased has left both a will and a living trust, and lots of people do, you’ll need a partner who can be in charge of any trust assets (i.e. the successor trustee). As we saw in another article, a will and trust are similar in a lot of ways, but the major difference is that trust property isn’t required to go through the probate process like things that are named in the will. It can go directly to the people who inherit it! To learn more about how to settle an estate, click here to read part 2.

A Closer Look at Pay-On-Death Accounts and Retirement Accounts

couple learning about pay-on-death account

In the “Avoiding Probate” series, we took a look at the many ways a person can avoid the probate process altogether if he or she so chooses. For your convenience, we’ve linked those articles for you. You can find part 1, part 2, and part 3.

In this article, we’ll take a closer look at one of those ways: Pay-On-Death Accounts and Retirement Accounts.

Pay-On-Death Accounts

These types of accounts are one of the easiest ways to keep even large sums of money out of probate. All you need is to fill out a simple form, which your bank can provide, and name the person you want to inherit the money you have in the account at the time of your death.

It should be noted that, for as long as you are alive, the person you name to inherit the money in such an account has no rights to it. You have full control, and can spend the money, name someone different, or even close the account entirely.

Upon your death, the beneficiary needs only to go to the bank, show the proof of your death, as well as his or her identity, and finally collects whatever funds remain in the account. As such, the probate court is not involved at all.

Also, if you and your spouse share a joint account, when the first spouse dies, the funds most likely will transfer to the survivor, without having to involve the probate court. If, however, you decide to add in a POD designation, it will only take effect upon the death of the second spouse.

Retirement Accounts

Upon opening a retirement account, like an IRA or 401(k), the required forms will ask you to provide a beneficiary for the account. At the time of your death, any funds that remain in the account do not have to go through the probate process; any beneficiary you name can then claim the money directly from the account custodian. Any surviving spouse also has more options to consider when withdrawing the money than other beneficiaries.

For example, if you are single, you have the right to choose whomever you’d like to designate as a beneficiary. If you are married, however, the spouse can inherit some (and in some cases all) of the money.

Call our New Jersey Probate Lawyers for Help

So there you have it, a closer look into POD accounts and retirement accounts, and the options you have when considering whether or not to avoid the probate process entirely. The New Jersey Probate Attorneys at Scott Counsel have a long-standing history of guiding his clients through the probate process. If you have any questions, contact us online or by phone. 

How to Avoid Probate: Part 2

Welcome back! If you’re here, you probably already read the first part of our handy How to Avoid Probate series. In part 1, we discussed how to avoid probate using revocable living trusts and Pay-On-Death accounts and registrations.

In this, the second part of our guide, our New Jersey Estate Planning Attorney will take a quick look at two more ways to avoid the probate process. You are able to do that by jointly owning property or by giving gifts. We’ll go into more detail below, so keep reading and be enlightened!

Joint Ownership of Property

The truth is that using this method provides a quick and easy way to avoid probate altogether whenever the first owner passes away. Actually, there are several ways this can be accomplished. To take the title with someone else and avoid probate, all you have to do is a state, on the paper that shows your ownership (like a real estate deed, for instance), how you want to hold the title.

Generally, no other documents are needed, and when one of the owners dies, the property transfers to the joint owner, without ever getting probate involved. Neat, huh? There are a few ways to do this, so let’s quickly look at them below:

  1. Joint tenancy with the right of survivorship
    Any property owned in joint tenancy will pass automatically to the surviving owner when one owner dies.
  2. Tenancy by the entirety
    In a few states, married couples can often take a title not in joint tenancy, but in what is called “tenancy by the entirety.” It’s like joint tenancy, but in fact, only married couples may use it. In some states, even same-sex partners can do it, as long as they have registered with the state. Both ways work to avoid probate in exactly the same way.
  3. Community Property with right of survivorship
    You can find another route to take if you live or own property in the following states: Alaska, Arizona, California, Idaho, Nevada, Texas, or Wisconsin. If you are married and co-own property with your spouse, you can use community property with the right of survivorship. This way, if one spouse passes, the other spouse automatically owns any assets upon death. If you’re in California and in a same-sex partnership, you can also do this as long as you’ve registered a domestic partnership with the state.

Avoid Probate through Gifting

Another way you can avoid probate is very easy and simple. You give all your stuff away! It’s true! Getting rid of all your possessions (or most of them) before you die is a way to avoid the process.

How? It’s simple: If you don’t own it when you die, it does have to go through the process! Doing this can lower probate costs because generally if there are assets with a higher monetary value going through probate, that makes the expenses higher as well. Plus, with most gifts, you don’t have to deal with federal gift taxes either, and not dealing with taxes is always a plus!

Stay Tuned for Part 3

That concludes part 2 of How to avoid Probate. In our next blog, we will take a look at how to avoid probate if you are a smaller estate. The New Jersey estate planning attorneys at Scott Counsel are here to answer your questions and provide the representation you need. Contact us today or give us a call to discuss your case. See you next time.

Possibly Increasing Your VA Pension or Benefit

You may have heard of “improved pension”, “VA assisted living benefit”, or “veterans elder care benefits” that can be used to increase your pension. These are each names for the Aid and Attendance benefit that we discuss in detail in a separate article. In short, Aid and Attendance is a financial benefit that can help eligible veterans who have difficulty with routine daily activities, such as bathing, eating, dressing, and medication management. For eligible veterans, Aid and Attendance provides an additional financial benefit that is meant to help cover the financial cost of assistance with those routine daily activities.

There is also a benefit called the Housebound Pension, which is for veterans who are substantially confined to their home because of a permanent disability. The housebound pension would be added as an additional financial benefit to the veteran’s existing pension. However, a veteran cannot receive both the aid and attendance and the housebound benefit. Instead, it is one or the other.

If you have any questions or would like to explore your eligibility for these programs or any other Elder Care law issues,
call 856-281-3131. We’d be glad to help you form the plan that is right for you.

Your wishes in the manner of your death

Planning for your passing or the passing of a loved one can be a very difficult process. It’s a process that many people may be inclined to avoid altogether. However, avoiding or ignoring end of life planning won’t solve your problems. In fact, by ignoring end of life planning, you may be putting very tough decisions and even guesswork onto the shoulders of those who love you most; and no one should have to guess what their loved one would or wouldn’t want regarding their end of life care.

Accordingly, it is very important that you discuss and plan with your close relationships and medical professionals the health care choices surrounding end of life care and the manner of your death. Before you begin, you may want to spend some time thinking about what you want your end of life care to look like. For example, do you want all potential medical treatments to be tried in order to save your life, regardless of the impact on your quality of life? Would you prefer to spend your final days with family and friends in the comfort of their home, or would you like to spend them in a supervised medical environment where loved ones can come and visit? To help make your wishes known and ensure they are followed, there are very specific legal and healthcare tools that you can use regarding end-of-life care and the manner of death.

Some common legal tools available for end of life planning:

End-of-life planning can include direction on where the patient wants to spend their final days, which treatments they wish to receive, and whether they want to pursue all life saving or resuscitation options.

An Advanced Directive or “Living Will” allows your wishes regarding medical treatment to be known in the event that a person is unable to communicate their health care decisions. The medical decisions in an advanced directive can include decisions about end-of-life care. Having a family discussion about your health care choices and advanced directive can help make sure that everyone in the family is on the same page and knows exactly what you want. A Living Will can include instructions on the use of breathing machines, resuscitation if the heartbeat or breathing stops, or whether the patient wants tube or intravenous feeding.

It’s important to keep in mind that a living will is not the tool you can use to leave property to your loved ones, name an executor, or name a guardian for any children. That document is called a traditional will or a last will and testament. In this case, we’re discussing a living will, which is also called a health care declaration. A living will is a document that you can use to describe the kind of health care you wish to get if you are incapacitated and cannot speak on your own.

Additionally, a “Do Not Resuscitate” or “DNR” request can also be signed by the patient. A “DNR” request instructs health care professionals that if your heart stops or you stop breathing, they should not make an attempt to resuscitate.

Other end of life planning can include signing a durable power of attorney that designates someone as your health care proxy or “agent” to make your medical decisions if you become unable to do so. If you do name a health care proxy, you should make sure that this person is comfortable with your choice and knows your wishes regarding end of life care. It may also be helpful to discuss these issues with your family when everyone is together so that everyone knows your wishes.

Planning end-of-life care can ensure that your wishes for the manner of your death are followed. In the event that you become unable to make health care decisions, it also alleviates the burden from your family members in having to guess what you may or may not want. If you or your loved one needs assistance with any of these topics or Elder Care law issues, call 856-281-3131. At Scott Counsel, we would be glad to answer your questions and help you craft the plan that works for you.

Transferring Assets in Probate

There are many, many aspects of the death process—both things that lead up to and things that come after it. It’s also a time when people have a lot on their mind. If someone’s just trying to get over an emotional loss, they don’t necessarily have time or want to spend time thinking about who’s going to get what and how it’s done, so let’s take a look at that now, so we can be more prepared when the time comes.

In order to transfer something that belonged to someone at the time of their death, their personal representative needs to follow these steps:

  • Acquire the proper affidavits or certificates from the Surrogate
  • File a tax waiver with the New Jersey Inheritance Tax Bureau in Trenton. What this is, is simply something that is given out by the state that will release any property from any inheritance tax claims that the state might issue or assert. (Please note this is only for New Jersey; other states could have different laws on the same situation.)

You may not even need a waiver. If you must determine whether you need one, consider the following assets:

  • Personal Property

If someone passes away but has money in a joint back account in their name and that of their spouse, parent, grandparent, child, stepchild, a child they’ve legally adopted or their issue, the bank can (and will) give out the money to the surviving owner, but only as long as an affidavit of waiver or an L-8 form has been executed. You can get these from the bank and no tax waiver is needed.

If the money is in the name of the deceased only, but will, by will or law, go to any of the people named above, the bank will release the money to a personal representative. To do this, a Surrogate’s certificate and affidavit of waiver or L-8 form are needed, but no tax waiver is required.

If the money in the account is in the name of the deceased only, the bank will freeze the account, but allow the withdrawal of one-half of the total amount in the account. A Surrogate’s certificate is needed by the bank before this can happen, and the balance may only be released when the appropriate tax waiver has been received by the bank.

To get a tax waiver, all inheritance taxes to the state must be paid. Even if taxes are not due, there could still be a necessary form needing to be filled out to show the Inheritance Tax Bureau that the property listed is exempt.

When this happens, the bureau will issue a tax waiver, and the bank will release any potential frozen funds.

  • Real Property

The transfer of real property is the simplest that we will talk about. If the property is in the name of the deceased only, it will be passed on according to what’s in the will. If there is no will, it will be passed on according to intestacy laws.

If jointly owned with rights of survivorship, the property passes to the surviving owner.

If the

property is owned as tenants by husband and wife in entirety, the property passes to the surviving spouse automatically by operation of law.

  • Motor Vehicles

The title of a vehicle that is jointly in the name of the deceased and his or her spouse will automatically become the sole property of the surviving owner when the other spouse passes. The title may then be changed by the survivor when they appear at a Motor Vehicle office and execute a proper affidavit.

If the title is in the name of the decedent alone, or jointly with another person other than themselves, a personal representative or co-owner must then show either a Surrogate’s certificate or Affidavit, along with the original title, registration and insurance I.D. card.

  • Stocks, Bonds and other Securities

For the transfer of stocks, an examination of the stock certificate must be done first in order to determine the registered or transfer agent. Then that person must be contacted to find out the necessary steps to transfer the stock.

Normally, these requirements include the following: a transfer agent’s transmittal form, an affidavit of domicile, a certified copy of the death certificate, a Surrogate’s certificate, and the original stock certificates, and, in New Jersey, a tax waiver or an affidavit of waiver.

If it is

owned by the deceased and someone else, that stock might have the same requirements listed above in order to have it transferred to the surviving owner.

  • Clearing Title and Transferring Property

Any unpaid inheritance taxes on real estate and shares of stocks of corporations and financial institutions are considered a lien under New Jersey law.

Waivers from the New Jersey Inheritance Tax Bureau are sent out, and these are needed to clear titles to land, and also the transfer of bank account ownership or securities. If a tax is needed, a bill is then submitted and waivers are sent out when the tax is paid.

To clear any real property, a tax waiver has to be filed with a County Clerk in the county where the property (that is, land) is located. If married, any land held by a husband and wife as tenants in its entirety does not have to be reported and is able to be transferred without a waiver.

In order to transfer any stocks, shares and securities of financial institutions and New Jersey corporations, the personal representative needs to obtain waivers. They can then be sent by the Tax Bureau to t

he bank, institution or individual.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.