Can I Disinherit My Child in My NJ Will?

In New Jersey, as in most other states, a parent is permitted to legally disinherit a child, provided this intention is clearly stated in a valid will. What follows are the steps you must take to ensure that your wishes are fulfilled with regards to your estate, as well as a few caveats you should be aware of.
In New Jersey, if a person dies without having created a will, any property not disposed of in life will be governed by intestate succession rules. These rules are laid out in N.J.S.3B:5-3 through N.J.S.3B:5-14.

Can I choose to simply leave my child out of my will?
Though it might seem to be the most tactful way to handle this delicate matter, you must clearly state that you wish to disinherit your child in a valid will. Otherwise, the child will be protected by Section 3B:5-16 of New Jersey’s statutes, which protects children from accidentally being left out of a parent’s will.

Include a clause that mentions your child by their full name; this will attest to your having been of a sound mind when the will was drafted. You may keep it simple, saying only, “I have intentionally made no provision for my youngest child, John Doe.”

Do I have to state the reason I wish to disinherit my child?

The reason for disinheritance does not need to be included in your will, though whether or not to do so depends on the circumstances. If no ill will is intended, and there is no acrimony in the parent-child relationship, it is probably advisable to include a clause saying so. “I have adequately provided for my beloved son, John Doe, throughout his life; he is now a successful, independent man. I have therefore made no provision for him.”
There may, however, be good reason to remain silent on the cause for disinheritance. If including the motivation could give the child ammunition for challenging the will, or questioning your state of mind, it would be prudent to refrain from doing so. For similar reasons, it is advised that parents do not speak harshly of their child in a will. The disinheritance is most likely an adequately sharp gesture; there is no need to further attack the child after you have passed away.

Keep in mind that a disinherited child will likely attempt to contest the will. However, if you’ve followed the advice laid out here, your assets will be protected.
The Takeaway:

Here are the steps you must follow to protect your assets:

1. You must create a legally binding will.

2. Update this will any time there is a change in the family: birth, marriage, adoption, or death.

3. Clearly state your intention to disinherit your child in your NJ will, and use your child’s full name when you do so.

4. Include the reason if it will help your child feel more positively about the omission, but exclude it if it will give a hostile child more ammunition to contest your will.
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Asset Planning for Seniors in New Jersey

Seniors today are remaining spry, exceedingly physically fit, and overtly healthier than our predecessors of decades and centuries past. Although extended life expectancies mean more time to make memories with family members and loved ones, they can also mean that your finances have the potential to expire before you do.

While you may have created an estate plan in your 30s or 40s, it is important to reevaluate the details and all components of that plan if/when you live so long that parts of your plan become null, void, irrelevant or outdated.

At Veitengruber Law, we can provide you with long-term planning guidance for all stages of your life. Even if your current estate plan (Last Will and Testament) was drafted by someone other than our firm, we are more than happy to help you protect your assets.

Medicaid rules are numerous and complex. As you approach age 65 (or if you are currently receiving SSDI and are younger than age 65), we will make sure that you understand all of the rules and eligibility requirements.

Medicaid is associated with something called the “five-year look back period,” which can often be confusing and problematic without the help of an experienced New Jersey asset protection attorney. Although we cannot predict the future (yet!), we do have extensive experience in all of the necessary legal areas that relate to the five-year look back period. These areas include: real estate law, foreclosure law, estate planning and credit repair.

You have undoubtedly worked for many years to support your family and to develop a savings/retirement plan that is very important to you. Whether or not your finances will be enough to support you with an extended life expectancy is something we can help you plan for.

As you age, you may need to address potential for long-term care. While this certainly isn’t something that anyone wishes to contemplate, the necessity for nursing home care is a reality as you age. This need may double if your spouse is also still living. We will help you estimate your potential longevity based on your family history and your individual health history in order to come up with the best plan to protect your assets in the event that long-term care is in your future.

If your original estate plan was completed several decades ago, you may need to revisit the designee for executor of your estate. It is possible that your original designee is no longer living, is in poor health, or is no longer part of your life due to divorce, relocation, death, or other circumstances.

In addition to reviewing your estate executor, we will help you to re-evaluate the beneficiaries named in your will. We will also help you assess all components of your estate plan (and determine if they need to be updated based on your current health and that of your spouse) including: your living will, advanced medical directive, power of attorney, your will and any trusts that you have set up.

To find out how we can protect your property and other assets from potential future events, sit down with our professional asset protection team today for a free consultation.

 

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Veitengruber Law: Working with Elder Lawyers

 

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Elder law is the legal practice that focuses on representing senior citizens in regards to age-specific issues like: estate planning, Medicaid, disability, long-term care, administration of wills, guardianship, commitment, elder abuse protection, end-of-life planning, nursing home care and contracts, and many other issues that may arise in the aging population.

Essentially, elder law attorneys have a loaded job description: representing older Americans in just about any legal area you can think of. As you can imagine, it can be a bit overwhelming if a client (or couple) has a lot of needs at the same time.

Attorneys who get the best results for their clients are those who have a narrow area of focus. This allows them to become experts in their practice area(s) in order to both expedite the processes required by their clients and to get reliable, high quality results. Elder law attorneys who concentrate solely on elder law are consistently great at what they do.

Even so, the elder law attorney may still find himself overloaded with work from time to time, when, as mentioned above, a particular client requires a lot of attention. Additionally, any attorney can get overwhelmed if they have a sudden rush of new clients.

Elder law attorneys assist a specific type of client (the aging) in a variety of areas. This makes them the perfect partner for an attorney who specializes in specific areas rather than type of client.

Example: Elderly clients Fay and John come to your elder law practice wanting to set up their estate plans. They have a lot of assets (but not a lot of money), numerous beneficiaries and stipulations, and present a rather challenging and time consuming case. In addition to estate planning, Fay is also having issues with Medicaid that need attention, and John’s sister has just entered a nursing home wherein they suspect she is being neglected and/or abused.

On top of all of that, Fay and John stopped paying their mortgage six months ago and are about to lose their home to foreclosure. Although they knew foreclosure was inevitable, they’ve now realized that renting or buying another home will cost more than they were already paying their mortgage company each month. They want to know how they can save their home, which is scheduled for Sheriff’s Sale in two weeks.

The best option for their elder law attorney in this situation would be to connect them with a local foreclosure defense attorney who has significant experience in “last minute” foreclosure saves. By working together, both attorneys can provide everything Fay and John need so that they can continue living comfortably in retirement.

Other reasons to consider taking a “tag team” approach to an elder law practice include: clients who need to file for bankruptcy, real estate contract review, landlord/tenant disputes, credit repair, debt resolution and elder fraud.

Veitengruber Law is a full-service real estate and debt relief solutions law firm in New Jersey helping clients with foreclosure defense, bankruptcy, credit repair and other debt relief problems. We welcome any elder law attorneys who’d like to collaborate in order to give our joint clients the best results possible through retirement and beyond. We have offices in Monmouth, Burlington and Camden Counties and also serve Ocean, Mercer and Gloucester county clients.

Connect with us on LinkedIn, shoot us an email or give us a call. Monmouth, Ocean and Mercer Counties – (732) 852-7295; Camden, Burlington and Gloucester Counties – (609) 297-5226 or (856) 318-2759.

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Bankruptcy Law and Family Law: How They’re Connected

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Anyone who has been through a divorce knows that, second only to your love life, your finances are often the hardest hit area during a split. Many people continue to have financial difficulties long after their divorce is finalized, as well. Family lawyers who handle divorce cases know from experience that financial strife can be a huge contention between divorcing couples.

While your family law attorney will assist you in creating a Property Settlement Agreement that settles some of your money troubles (you may begin receiving child support or alimony payments after the divorce is finalized), oftentimes divorced couples will struggle with things like losing their family home to foreclosure, credit card debt, and potential bankruptcy.

As much as your divorce attorney may want to assist you with all of the above money matters, they have to focus their attention on everything within their own wheelhouse to ensure that you (and their other clients) achieve the desired outcome from your divorce. Their duties are many, and include drafting your PSA, attending court dates, negotiating and corresponding with counsel for your soon-to-be ex-spouse, handling domestic violence matters, and much more.

Frequently, family law attorneys find it very beneficial to work in tandem with an attorney who specializes in bankruptcy, real estate and/or debt relief. Because financial strain is a given in most divorces, it can be helpful for everyone involved to work as a team. Your divorce (family law) attorney will walk you through all of the steps of your divorce. With your permission, ideally he would then discuss your case with his tandem bankruptcy attorney, whom you would then work with to clean up your finances.

Of course, family law attorneys attend to matters other than divorce, like name changes, parenting time, grandparents’ rights, pre-nuptial agreements, child custody (unrelated to divorce), adoption, restraining orders, and domestic violence. Some of these matters can also be made easier by working with an attorney who specializes in finances. For example, the financial aspect of adoption matters can be quite intense. While your family law attorney will handle much of the adoption paperwork, he can refer you to a financial specialist like Veitengruber Law if you need more help organizing the necessary finances.

Every attorney has a lot on their plate every single day, regardless of their practice area(s). The best attorneys limit their focus to a limited number of practice areas so as not to get overwhelmed and spread too thin. If your family law attorney attempts to do it all himself, you may find that he’s too busy to set aside time to keep you updated on your case. On the other hand, a smart divorce lawyer will say, “Hey, while I’m working on negotiating your child visitation schedule, why don’t you go see George Veitengruber to start sorting out the fact that you can’t afford your mortgage payment?”

When attorneys work together, their clients always have a better result. Mutually beneficial relationships between experienced professionals give clients a well-rounded experience and optimal outcome. Veitengruber Law welcomes family lawyers in New Jersey (Monmouth, Ocean, Mercer, Burlington, Camden, and Gloucester Counties) to reach out to our firm if and when your clients need our services. We will gladly return the favor so that our mutual clients are well-cared for and happy with our services.

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Does my NJ Will Have to be Notarized?

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The laws surrounding estate planning differ from state to state regarding the signing of your will, how many witnesses must be present, and what conditions make your will complete and valid. It’s true that anyone can print up their own will – or hand write one if they prefer, but it must be in some written form to be legal. There are several qualifications a testator (person creating his or her will) must fulfill in order to execute their will without the help of an estate planning attorney:

  • 18+ years of age: In the State of New Jersey, you must be at least 18 years old in order to write your own Last Will and Testament.
  • Of sound mind: To be of sound mind means that you are able to reason and understand things on your own. You may have been found to be legally incompetent in a court of law if you’ve suffered a brain injury or other mental disability .  If you have been found to be incompetent, you likely have a guardian who was appointed by the court. That guardian can help you draft your will.
  • Two or more adult witnesses: NJ law requires that all wills be signed by the testator in front of at least two witnesses who are both 18+ years of age and are of sound mind. Your witnesses validate your will by agreeing that you are who you claim to be and that your signature is authentic. If a disability prevents you from signing your name to your will, you can authorize someone else to sign for you. This act must also be affirmed by your witnesses.
  • Signed by witnesses: Along with attesting your own signature on your will, the witnesses will also need to sign their names as official acknowledgement of your signature and their presence when you signed.

Does my New Jersey will have to be notarized?

Legally, you are not required to have your NJ will signed by a notary as long as you have met the above listed requirements. However, if you want to make the probate process significantly easier on your loved ones after you pass away, you’ll definitely want to have your will notarized. Your witnesses need to be with you when the will is notarized so that the public notary can attest to their identity.

Wills signed by a notary are considered to be ‘self-proving’ in New Jersey. A self-proving will is one that will move quickly through the probate system after the testator has passed away.

When a decedent has failed to have their will notarized, it means a whole lot of a headaches for their beneficiaries at a time when they are already undoubtedly grief-stricken and overwhelmed.

Additionally, self-made wills often have problems or omissions that lead to intense family disagreements, fighting and potential irreparable damage.

What can I do to ensure that my will is without fault, errors or omissions?

Naturally, you want to save your family members from any strife related to your will after you pass. The best and most cost-effective way to do that is to work with an estate planning attorney. Even if you are reading this page to find out how to execute your will without professional help – we’ll still tell you that your best bet, in this case, is working with an experienced NJ estate planning lawyer.

The cost of having your New Jersey will drawn up by an estate planning attorney is very affordable, especially compared to the exorbitant fees your heirs will end up paying after the fact to fix any mistakes you may make if you go the DIY route. Consultations are FREE at most estate planning firms. Take the time and invest in execute your will with a professional’s assistance. Your surviving heirs will be so thankful that you did.

Image credit: Dan Moyle

Keeping the Peace When Estate Conflicts Arise

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If you have been named Executor in one or both of your parents’ will(s), there are probably a multitude of reasons why you were selected for the duty. Undoubtedly, your parents (and likely the rest of your family) recognized that you possess certain personality traits that make you an ideal candidate for the job. Most people name executors who exhibit the following qualities:

Honesty
Resourcefulness
Book smarts
Responsibility
Reliability
Solid organizational skills
Confidence
Control
Ability to be impartial
Fairness
Authenticity
Loyalty
Safety
Trustworthiness
Sound-mindedness

Naturally, when establishing an estate plan, every decision is taken very seriously, especially when it comes to appointing the executor. If conflicts arise after their passing, the decedent can rest peacefully knowing that you were left in charge of their estate.

Unfortunately, there are entirely too many cases that make their way through the NJ probate system wherein at least one of the beneficiaries (heirs) is unhappy with all or part of the details of the will. This understandably can lead to irreparable damage within a family. Because you are the chosen executor, you must now live up to your reputation that got you the job.

As negotiation may be one of your natural instincts, you may make attempts to reason with the disagreeable beneficiary, hoping that they will come to their senses. However, as these issues tend to date back to unresolved feelings of “favoritism” or other familial conflict, it can often be next to impossible to talk sense into your sibling, especially when emotions are already running high so soon after the death of a parent.

Your best plan of action as estate executor is to follow your legal duties to the letter of the law. Become as familiar as possible with what is expected of you as executor. If your parent worked with an estate planning attorney when they established their will, get in touch with that attorney and bring him up to speed on the current difficulties you are facing.

Even if your parent(s) didn’t work directly with a New Jersey estate planning lawyer, it’s a good idea to reach out to one early in the probate process if it looks like you’ll be dealing with ongoing conflict from one or more of the heirs. As executor, you’ll be able to use funds from the estate to pay the legal fees you incur on behalf of the estate (assuming that the decedent possessed sufficient funds/assets when they passed away.) Even if you don’t retain the services of an attorney immediately, it’s in your best interest to bring your attorney up to speed in case you need to retain him later on in the probate process.

The best way to approach an estate conflict as executor is to be kind but firm to the beneficiary who is being difficult. Resist bending any rules and instead remind them about the laws and timelines that surround the distribution of any assets.

By sticking strictly to your duties as estate executor, you will fulfill the duty that you were so chosen for. It is extremely difficult to satisfy someone who feels they’ve been “wronged” by a decedent, as the deceased is no longer around to explain him or herself. If someone is unhappy with the content of the will, they may take issue with your every move. Stay within the law, and refer to your attorney for help if the disgruntled beneficiary becomes more than you can handle.

Image credit: Hans Vandenberg

NJ Wills: What is Probate?

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Most people go to great lengths to avoid even thinking about their own mortality and that of their closest loved ones. Admittedly, processing the fact that you or someone very near and dear to you will inevitably pass away can be overwhelming and sad.

Our best advice to those who are struggling with the concept of dying is to face it matter-of-factly. Being prepared for all of the details surrounding someone’s passing certainly won’t make it any easier in terms of missing them, but it will put your mind at ease regarding their estate.

What is an estate?

After someone dies, their estate consists of any and all assets (property of value) that they owned. Assets include things like real estate, vehicles, personal items, life insurance proceeds (in some cases) and money. If the deceased person owed any debts, the money in their estate will be used to pay these debts before anything can be dispersed to beneficiaries.

How do I start the process of sorting through my loved one’s estate?

If you were named as the executor of an estate that has assets, you’ll need to visit the surrogate court in the New Jersey county in which the decedent lived. This will start the NJ legal process known as probate, and it can be initiated 10 days after someone passes away.

What happens in probate?

In New Jersey, probate is necessary only if the deceased had assets in his or her name only. Official appointment of the executor will occur in probate court with the production of the will and death certificate.

If there was no will, an administrator will be assigned to the estate in probate court. As long as there are no protests of the will, surrogate court will then give full authority to either the estate executor or administrator. You can find a full list of the executor’s duties here.

Does an estate executor get paid?

In New Jersey, estate executors or administrators can be paid for their duties, which can, in certain cases, be quite time consuming. The amount they can receive is limited to 6% of any income to the estate, plus 5% of the total gross value of the estate.*

How long does it take to probate a will?

The length of time it will take for anyone’s estate to move through the probate process is dependent on how large and complicated the estate may be. On average, moderately sized estates typically make it through to the end of NJ probate within a year. More extensive and complex estates can languish in probate for up to a decade.

For more information about New Jersey probate laws call or contact our office today. In addition, take this time to make an appointment with us to draft your own estate plan.

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Can a Dementia Patient be Served with Foreclosure Papers?

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New Jersey now has more residents than ever who are age 70 or older. This is in part due to the post-war baby boom that occurred after World War II soldiers returned home to their wives in 1945. Americans are also living longer due to technological and scientific advances in the medical field that have brought about cures and/or successful long-term treatments for many diseases that used to be fatal.

While an increased life expectancy is definitely something to cheer about, the fact that more New Jersey residents are living longer also comes with some challenges. Although people are living longer due to advances in medicine, the natural aging process can’t be avoided altogether.

For example, many older Americans are in good physical health but suffer from some form of memory loss – ranging from minor short term difficulties to dementia and Alzheimer’s Disease. Caring for a loved one with dementia obviously presents a number of hurdles, most importantly monitoring them for their own safety.

What, then, is to be done when a family member with dementia has made a mess out of their finances because of their inability to remember to pay their bills?

This question is now asked a lot among adult children who are now caring for a parent with dementia or Alzheimer’s Disease. It’s a good question, but one that you probably didn’t contemplate until said papers have already been served and you find yourself in the middle of a complex legal mess.

Example: An 80 year old man with dementia, who lost his wife four years ago, now resides in a nursing home. Upon his wife’s death, the man stopped making any payments on their mortgage due to his worsening symptoms of dementia and lack of income.

The man’s adult son has taken on the role of Power of Attorney, and is aware that no payments have been made on the home since his father moved into the nursing home. Assuming that any foreclosure paperwork would be sent to him as the POA, the son was simply waiting to receive notice of the foreclosure, which never came.

The adult son (POA) did not have the resources to save the family home and planned to let the house be sold at Sheriff’s Sale in the hopes that the situation would then be settled.

The man’s OTHER adult child, however, wasn’t privy to any of this information, as she lived across the country and could only visit on occasion due to her busy work schedule. As it turned out, she did have the means (and the desire) to save the family home.

Some family friends alerted the adult children to the fact that their father’s home was listed ‘For Sale’ in the local newspaper’s Sheriff’s Sale section. After doing some digging, they discovered that the lender had served their father with the foreclosure complaint.

Having no memory of this event, their father had no idea where the paperwork was or if he had signed anything.

Is it legal to serve a dementia patient with important legal papers?

As you can well imagine, it is both unethical and unlawful to do so. Rule 4:4-4.(3) regarding issuing a Complaint and Summons, reads as follows:

“Service of Summons, Writs and Complaints shall be made as follows…(3)Upon a mentally incapacitated person, by delivering a copy of the summons and complaint personally to the guardian of the person of the mentally incapacitated individual or to a competent adult member of the household with whom the mentally incapacitated person resides, or if the mentally incapacitated person resides in an institution, to the director or chief executive officer thereof.

Do you have an elderly family member who has been served unlawfully with a foreclosure complaint? You MUST work closely with a NJ foreclosure defense attorney if you want to save the home in question! You do have rights, and Veitengruber Law can save your family home, but you must act quickly. Call or click now: (732) 852-7295.

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