Estates and Trusts Planning and Administration
An estate plan considers the accumulation, conservation, and distribution of the assets of an individual upon his or her death. The New Jersey estate planning attorneys at Schiller, Pittenger & Galvin, P.C., offer a diverse range of estate planning services to achieve our client’s goals, including but not limited to:
· Powers of Attorney
· Advance healthcare directives
· Probate and estate administration
· Trust and estate litigation
Our firm’s goal is to help our clients determine individual goals regarding the transfer of assets at death, how the government might tax those assets at death, and how each of those factors can be planned for to accomplish the goals of the client.
In addition, our New Jersey probate attorneys offer help with obtaining the appointment of an executor and trustee designated in the will, or the appointment of an administrator in the absence of a will. We will assist the executor, administrator or trustee in gathering information as to the assets and debts of the decedent. We will also help in the distribution of the estate’s assets under the terms of the applicable document or New Jersey probate law.
New Jersey Will Attorneys
A will is one of the most significant documents that you can have. A properly drafted will allows you to decide, before you die, to whom your bank accounts, securities accounts, real estate, etc., will go when you pass.
It may be uncomfortable to talk about death with your spouse or other loved ones, but having a will in place before you pass is one of the best gifts you can leave your surviving loved ones.
If you die without a will, you die “intestate” and your probate estate will be distributed to heirs by a judge under New Jersey probate law. That means that any discussions you had with your surviving spouse, children or others about who you want to have your house, what percentage of your property goes to specific children, how much money you want to leave to your college or a charity, etc., will mean nothing.
With a will, you can make sure that your assets are used to support your surviving spouse. You can name a guardian for your minor children (instead of having a court pick one) in case you and your spouse pass together, or your surviving spouse dies at a later date. You can create a trust in favor of your children and leave property to that trust in your will. This will protect your children’s’ inheritance from their creditors or an ex-spouse. If you are in a second marriage, you can ensure that your children from your first marriage receive a designated portion of your estate.
You also get to name the executor of your will. That can be your lawyer, a financial professional or a close friend or relative you trust to know and follow your wishes as outlined in the will. Conversely, if you die intestate, the probate court appoints an administrator to whom you will never have spoken.
You can change your will prior to your death to add or remove beneficiaries, reflect births of new children/grandchildren, divorces, remarriages or deaths.
Having a properly drafted will be drawn up by an experienced New Jersey estate planning lawyer will ensure that your wishes regarding the distribution of your probate estate upon your death will be followed.
This is true if you are in a second marriage or a “blended” family. A well-drafted will not only permit you to decide who gets what but will also lessen the chance that a family member contests the will in whole or part.
New Jersey Trusts Lawyers
Trusts are important estate planning tools. A trust is a legally recognized entity. You can put almost any type of property in a trust. The person who creates and funds the trust is known as the grantor or settlor. Once the grantor’s transfers his property to the trust, the trust becomes the owner of the property.
The grantor also names the trustee of the trust. A trustee administers the trust for the benefit of the grantor and beneficiaries of the trust. The grantor may name himself as the trustee. In that instance, the grantor will also name a successor trustee who will administer the trust if the grantor/trustee becomes incapacitated or dies.
There are several benefits for using trusts in estate planning. A primary one is that by placing your property in a trust, the trust beneficiaries will not have to go through probate. Rather, the beneficiaries of the trust will receive their bequests directly from the trust and will not have to incur the costs and time involved in probating the grantor’s estate.
There are several types of trusts commonly used in estate planning:
As stated above, when the grantor transfers assets to the trust, the trust becomes the owner of the assets. An irrevocable trust in New Jersey is one in which the grantor transfers his property to the trust and cannot later remove property from the trust and put it back in his name without the permission of the beneficiaries. Once the grantor transfers property to the trust, it remains in the trust, owned by the trust, until the grantor dies. At that time, the trustee distributes the trust assets to the beneficiaries according to the trust’s terms.
Since the grantor no longer owns the assets placed in an irrevocable trust, those assets are not part of the grantor’s taxable estate. The trust itself will have to pay capital gains taxes, taxes on income, etc., generated by the trust assets. Moreover, the trust assets cannot be seized by creditors or ex-spouses of the grantor or the beneficiaries.
Lastly, since the assets in an irrevocable trust are no longer owned by the grantor, they are no longer part of his estate and are not subject to estate and inheritance taxes.
As opposed to irrevocable trusts, revocable trusts, sometimes called living trusts, are trusts in which the grantor can take back some or all of the assets originally placed in the revocable trust. Because of this, the grantor pays taxes generated by the trust assets (a revocable trust’s tax identification number is the social security number of the grantor) and the revocable trust assets are part of the grantor’s estate when she dies.
The revocable trust assets are not protected from creditors or ex-spouses of the grantor.
Why use a revocable trust if there are no asset protection or tax avoidance benefits?
An experienced New Jersey trust and estate lawyer can help you answer that question. If you have a vacation home or other property, such as private investments, in other states, when you die you will have to file your will and go through probate in those states. Not so with a revocable trust; remember, assets in a trust are not part of your probate estate and will pass to the beneficiaries directly from the trust.
Another reason to use a revocable trust is the privacy it affords the grantor. If you have a will, upon your death, the will gets filed with the probate court and becomes a public document. The terms of your revocable trust, its assets and the bequests to the beneficiaries are private.
Let an Experienced New Jersey Trust and Estate Attorney Help You
There are other types of trusts available in New Jersey that could be helpful in estate planning, such as
· Testamentary Trusts
· Life Insurance Trusts
· Clifford Trusts
· Educational trusts
And there are more.
The New Jersey trust and estates attorneys at Schiller, Pittenger & Galvin, P. C., will spend as much time as necessary to get to know you and what your hopes and concerns are for your future well-being and that of your loved ones. We will craft an estate plan that suits your needs and will provide for your loved ones after you are gone.
New Jersey Powers of Attorney
A Power of Attorney is a document in which a person, called the principal, authorizes another person, known as the agent or attorney in fact, to act on the principal’s behalf. This can include general business dealings and personal financial matters. The principal must be an adult of sound mind who understands the powers she is granting to the agent.
Unless there is a specific expiration date in the Power of Attorney, the Power of Attorney is effective until the principal revokes it, becomes incapacitated or dies.
There are several types of Powers of Attorney:
General Powers of Attorney
In a General Power of Attorney, the principal gives the agent broad, non-specific authority to act and decide on behalf of the Principal.
Special Powers of Attorney
Special Powers of Attorney, also known as Limited Powers of Attorney, give the agent the authority to act on behalf of the principal in limited circumstances. The Special Power of Attorney will spell out those limitations. For instance, if you were selling real estate, and you could not attend the closing, you could give your attorney or another person the authority to sign the closing papers on your behalf. You could even list the specific documents to be signed and limit the authority to the day of the closing.
Durable Powers of Attorney
A General Power of Attorney ends when the principal dies or becomes incapacitated. A Durable Power of Attorney continues in effect after the principal dies or becomes incapacitated. Without a Durable Power of Attorney, if the principal becomes incapacitated, the family would have to have a guardian appointed to make medical decisions for the principal. That means hiring an attorney, going to court and asking a judge to appoint the guardian. That means time and money.
With a Durable Power of Attorney, appointing a guardian is unnecessary.
Even with property held jointly, spouses should have Durable Powers of Attorney. While bank and securities accounts held jointly automatically pass to the surviving spouse, other property, even owned jointly, may treated differently. Without a Durable Power of Attorney, it may be difficult for the surviving spouse to sell real estate and other property and get information about the deceased spouse’s retirement accounts, insurance policy information, etc.
It is a good practice for both spouses to have Durable Powers of Attorney.
Medical Power of Attorney
A Medical Power of Attorney, also called a Healthcare Proxy, gives the agent the right to make healthcare decisions for the principal. These are often end-of-life decisions that are expressed in an Advance Healthcare Directive. The Medical Power of Attorney lets the agent make healthcare decisions that meet the desires of the principal stated in the Advance Healthcare Directive.
When Should You Get A Power of Attorney?
The answer to that question is-NOW! Do not wait. Sadly, many people do not have Powers of Attorney, thinking they do not need them. Then, a horrific accident occurs, or a severe stroke incapacitates a person-and now the family members who are close to the impaired loved one have difficulty in fulfilling the impaired person’s end-of-life wishes, paying bills and getting information from doctors. Remember, the principal must be of sound mind and know what powers she is giving to the agent. A person impaired by an accident or Alzheimer’s disease may not meet those requirements.
Therefore, it is never too early for adults to have Powers of Attorney in place.
New Jersey Advanced Healthcare Directives Lawyers
An Advance Healthcare Directive, also known as a Living Will, lets you tell your family and doctors how you want to be treated (or not treated) if an accident or illness has left you comatose, in a persistent vegetative state or otherwise unable to communicate.
Advance Healthcare Directives are typically drafted for a person together with a Medical Power of Attorney, also called a Medical Proxy. In a Medical Power of Attorney, the principal gives the agent the power to make healthcare decisions for the principal. This would include end-of-life decisions contemplated by the Advance Healthcare Directive.
A properly drafted Advance Healthcare Directive and Medical Power of Attorney will give your agent the ability to discuss your condition with your doctor and review your medical records. The agent will discuss with the doctor and family members what options are available for you that are consistent with your instructions in the Advance Healthcare Directive.
It is important that you chose someone to be your agent who you trust will follow your desires as expressed in the Advance Healthcare Directive. That person will be the one to tell the doctor to stop medical treatment if you are in a terminal condition with no hope of recovery (if that is your wish).
We will be happy to sit down with you and discuss what instructions you want to put in the Advance Healthcare Directive and who might best serve as your agent.
New Jersey Guardianship Attorneys
If a person becomes incapacitated and cannot make decisions on personal and financial matters and does not have a Durable Power of Attorney in place, the family may ask a court to appoint a guardian to manage that person’s affairs.
That guardian will have the authority to handle the incapacitated person’s finances, make home care arrangements, pay bills, etc.
How is a Guardian Appointed?
If a person becomes incapacitated because of illness or an accident, the family can hire a New Jersey guardianship lawyer to go to court and ask a judge to appoint a guardian to manage the impaired person’s affairs. They could also do this with a disabled child who is reaching the age of majority.
The person in question must be impaired and not capable of making decisions and understanding the consequences of those decisions. There must be a serious risk of injury, financial abuse or death to the person in question (known as a “ward”).
What Types of Guardianship Are There?
In New Jersey, there are Guardianships of the person and Guardianships of the property.
In a Guardianship of the property, the guardian handles financial matters of the ward.
In a Guardianship of the person, the guardian manages the ward’s living arrangements, helps with healthcare decisions, etc.
One person can serve in both roles. If not, they are going to have to cooperate with each other in order for guardianship to work smoothly.
Guardianship of a Minor
Once you become a parent, much of your life and that of your spouse will focus on the health, well-being and happiness of your children. In your will, you will provide for your children as best as you can by bequeathing them your assets after your death.
However, you can also provide for your minor children by naming a guardian for them in your will. If you and your spouse die at the same time, or at separate times but still with minor children, you can provide for your children by naming a guardian in your will.
That guardian will assume your place in raising your children until they reach the age of majority. The guardian will be responsible for the healthcare, schooling and social activity of your children.
Because of this responsibility, think long and hard about whom to appoint as guardian. Your cousin who is single, says he’s never getting married and wants to travel all the time may not be the best candidate.
You may not like the idea of another relative who does not have the same moral or religious values as you raising your children.
You also have to make sure the candidate you select will take your children into their home, be responsible for them and raise them until they reach the age of majority.
You can create trusts in your will for the benefit of your children. The guardian can use the assets of those trusts for their education and living expenses.
The New Jersey guardianship lawyers at Schiller, Pittenger & Galvin, P. C., can walk you through the options you have to provide for your children.
Most times, the family members agree a guardian needs to be appointed for the ward. They also agree on who the guardian should be.
However, sometimes the family members do not agree that the ward needs a guardian. Other times, they may disagree who the guardian should be.
The ward may also object to a guardian being appointed.
In those instances, the family member asking the court to appoint a guardian will have to prove to the judge that a guardianship is necessary. If family members continue to object, they will have to hire their own attorneys to oppose the appointment request.
Certainly, taking away a person’s ability to make their own financial and personal decisions is a serious matter. Emotions can run high among family members not in agreement about what is good for the impaired loved one. The New Jersey guardianship attorneys at Schiller, Pittenger & Galvin, P. C., will try to assist in the amicable resolution of the guardianship case. However, we will also be prepared to vigorously present your case to the court.
New Jersey Probate and Estate Administration Lawyers
Our estate administration services begin with assisting in the appointment of an authorized representative of the estate. This representative is the executor named in the will or, absent a will, an administrator selected by the County Surrogate. In addition, there may be documents completed by the decedent during his or her lifetime that become effective at death but not included in the estate for disposition.
We assist the executor, administrator or trustee named in the will gather information about the assets and debts of the decedent. Once the debts of the decedent are paid, the executor distributes the remaining assets of the probate estate according to the will. If there is no will, the administrator will make distributions to heirs as required by law.
We will also help prepare any estate or inheritance tax forms required to be filed.
The New Jersey estate administration lawyers at Schiller, Pittenger & Galvin, P. C., provide estate administration services to beneficiaries, executors, trustees and administrators throughout the probate process.
We can also deal with disgruntled heirs.
New Jersey Trust and Estate Litigation Lawyers
Our attorneys have significant experience handling estate, trust, and fiduciary litigation. We represent clients in connection with enforcing or contesting a wide variety of estate planning documents, including
- the probate of wills
- will construction issues
- validity of trust documents
- contested accountings for both estates and trusts
- proceedings for the discovery and turnover of the estate or trust assets
- other trusts and estate-related matters.
If a beneficiary in a will who expected a large bequest and got a much smaller one (or nothing at all), or a bequest was made to a formerly unknown heir, a contested will litigation can arise.
There are several common grounds we see for contesting a will. Those grounds include:
- Undue influence
- Lack of testamentary capacity
In order to contest a will, the person who wants to contest the will must have standing. That means that the person must already be a named beneficiary in the will. People who would have received a bequest if the deceased had died without a will (“heirs at law”) also have standing.
Lastly, a person who was named in a prior will, but who is not named in the will submitted to probate, or who received a smaller bequest in the probated will, has standing to contest the will.
Breach of Fiduciary Duty
A fiduciary is a person or entity (such as a bank) that has a special relationship of trust with another person. In estate planning, the executor of a will is a fiduciary to the named beneficiaries of the will. In a trust, the trustee is a fiduciary to the beneficiaries named in the trust agreement.
Other examples of a fiduciary would be a person who was named in a will as a guardian to a minor or an agent named in a power of attorney.
There are several actions that a fiduciary could take that could be deemed a breach of their fiduciary duty:
- Embezzlement of the trust’s assets by the trustee or of the probate estate by the executor or administrator
- Failure of the trustee to follow the terms of the trust agreement
- Failure of the executor to follow the deceased’s instructions in the will
- Removal of assets from the trust without the knowledge or approval of the beneficiaries