New Jersey Estate Administration & Litigation: Medicaid Liens and the Elective Share

By: Justin M. Smigelsky, Esq.

 

In a recent, published decision, In the Matter of the Estate of Arthur E. Brown, the Appellate Division addressed DMAHS’s ability to assert a lien against the estate of a Medicaid recipient for the unclaimed elective share of his wife’s augmented estate.  In affirming the Judgment of the Chancery Division, Probate Part of Burlington County, the Appellate Division held that the trial judge correctly found the elective share against the deceased spouse’s estate to be includible in the Medicaid recipient’s estate and, therefore, subject to a Medicaid lien. The following is an overview of the law regarding liens against the estate of a Medicaid recipient in New Jersey, and the impact of the New Jersey elective share:

Medicaid is a federally-created, state-implemented program which provides medical assistances to qualifying individuals. Federal Medicaid law requires participating states “to enact certain estate recovery provisions as part of their medical assistance plans.” Specifically, when an individual was over the age of fifty-five (55) years of age when he or she received medical assistance, states are required to “seek adjustment or recovery from the individual’s estate” for certain medical assistance provided. Additionally, participating states may recover Medicaid benefits after the death of the recipient’s surviving spouse provided that the Medicaid recipient leaves no surviving child who is under the age of 21, blind, or permanently and totally disabled.

To comply with federal estate recovery requirements, New Jersey enacted N.J.S.A. 30:4D-7.2(a)(2), which permits the filing of a lien against and recovery sought from the estate of the deceased recipient for assistance correctly paid or to be paid on his or her behalf for all services when he or she was fifty-five (55) years of age or older. For purposes of recovery, New Jersey statute defines an individual’s “estate” as including:

all real and personal property and other assets included in the recipient’s estate as defined in 3B:1-1, as well as any other real and personal property and other assets in which the recipient had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the recipient through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.

N.J.S.A. 30:4D-7.2(a)(3). Pursuant to N.J.A.C. 10:49-14.1(d), the Division of Medical Assistance and Health Services (DMAHS) is authorized to file any claim or lien against an estate within three (3) years of having received written notice from the estate’s representative or other interested party of the death of the Medicaid beneficiary.

Pursuant to N.J.S.A. 10:71-4.10(b)(3), income or resources which an individual is entitled to, but does not receive because of action or inaction by the individual, will constitute a transfer of assets for less than fair market value if within the five-year look-back period. To prohibit disinheritance of a surviving spouse who needs continuous support, New Jersey law entitles a surviving spouse (with some exceptions) to an elective share of one-third (1/3) of the deceased spouse’s augmented estate. Accordingly, as explained in In the Matter of the Estate of Arthur E. Brown, an inheritance, or the spousal elective share under N.J.S.A. 3B:8-10 of a deceased spouse’s estate, will be deemed an “available” asset to the surviving spouse during lifetime for purposes of Medicaid qualification, as well as asset in which the recipient had legal title or interest at the time of his or her death. In the event that an inheritance is waived, or the surviving spouse waives the elective share, the waiver may be deemed a transfer of an available asset subject to a penalty period of ineligibility from Medicaid benefits. Similarly, DMAHS may include the value of the elective share against the predeceasing spouse’s estate for purposes of asserting a lien against the estate of the recipient spouse.

Because estate and trust planning, administration, and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding your estate plan, the probate process, administration of an estate or trust, Medicaid liens asserted against an estate, the elective share, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.


Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, estate administration, or estate litigation, contact the experienced estate attorneys at Timothy J. Little, P.C.

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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New Jersey Divorce: Equitable Distribution of Personal Injury Awards

By: Justin M. Smigelsky, Esq.

 

Under New Jersey law the Court has the authority to distribute all eligible property that was legally and beneficially acquired during the marriage or civil union as part of equitable distribution. Some assets, however, are so inherently personal in nature that they may not be considered marital property for purposes of equitable distribution. Whether a personal injury award or settlement, or an amount recovered in a workers’ compensation claim, is subject to equitable distribution depends on the allocation of the recovery.

With respect to a settlement or award allocated as compensation for pain, suffering, and disability, the purpose of such funds is generally to make the injured party whole and restore the injured party to the condition preceding the accident. As set forth by the New Jersey Supreme Court in Landwehr v. Landwehr, an injured party’s pain, disabilities, and emotional suffering “persist unaffected by the breakup of the marriage.” Therefore, this portion of a personal injury recovery is meant to “fill a gap or loss in the physical and mental wellbeing of the injured spouse,” and does not represent an accumulated asset or surplus of marital property subjecting it to equitable distribution (“…a spouse receives compensation for pain and suffering and physical and mental disabilities for excrutiatingly personal reasons, wholly apart from the labors or efforts of economic transactions of the marital partners”). Similarly, the per quod claim (a claim for deprivation of spouse’s aid, society, and conjugal fellowship) of the uninjured spouse is generally viewed as being “just as personal as the pain and suffering at issue in the primary action”; accordingly, per quod claims are ordinarily not subject to equitable distribution.

Treated differently, however, is that portion of a personal injury award or settlement (or the amount recovered in a workers’ compensation claim) that is intended as compensation for lost earnings and medical expenses of the injured spouse – this portion of the award or settlement generally reimburses marital assets that were lost because of a spouse’s injury, belongs to both partners of the marriage and, therefore, is subject to equitable distribution upon divorce. It is worth noting that the allocation of such awards is not always clear, and the injured spouse has the burden of demonstrating what portion of his or her recovery represents compensation for pain, suffering, and disability. Should a party fail to demonstrate that a portion of the recovery is rightfully separate property, it will be deemed a marital asset subject to equitable distribution.

If you have any questions in regards to divorce in New Jersey, equitable distribution, family law, or personal injury law, you may wish to consult with an experienced attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Justin M. Smigelsky, Esq. is a member of the firm and offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.

Family Law Practice Specialties:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

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New Jersey Child Support: Emancipation of a Child Effective February 1, 2017

By: Justin M. Smigelsky, Esq.

 

Effective February 1, 2017, New Jersey law regarding child support and the emancipation of a child will be significantly transformed. Pursuant to N.J.S.A. 2A:17-56.67, “the obligation to pay child support shall terminate by operation of law without order by the court on the date that the child marries, dies, or enters the military service…[or] when a child reaches 19 years of age” unless (1) another age for termination of the child support obligation is specified in a court order, (2) a written request from the custodial parent is properly submitted to the court seeking the continuation of the child support obligation prior to the child reaching the age of 19, or (3) the child receiving support is an out-of-home placement through the Division of Child Protection and Permanency.

Under prior law, a child support obligor seeking to emancipate a child had the burden to either file a motion with the court seeking an order of emancipation or, in the often unlikely alternative, obtain the consent of the custodial parent. The new child support / emancipation statute, however, places the burden on the child support obligee to demonstrate that the continuation of child support is appropriate. Procedurally, the new law requires that – for child support orders that are administered by the Probation Division – Probation provide both parents with at least two timely written notices of the proposed termination of child support, including information and the necessary request form to enable the obligee to request continuation of child support after the child reach the age of 19. Additionally, the custodial parent may file a motion seeking to extend the child support obligation beyond the age of 19 due to exceptional circumstances. If the court determines that sufficient proof has been submitted to establish that the continuation of child support is proper beyond the age of 19, child support shall continue and the court shall issue an order establishing the prospective date for termination of the child support obligation. If the child support obligor disagrees with the determination of the court, he or she may file a motion seeking relief from the obligation at any time.

Most importantly, under the new statute, the obligation to pay child support shall terminate by operation of law when a child reaches 23 years of age regardless of the circumstances; however, the following provisions of the new emancipation statute should be noted: nothing prevents a parent or child from converting a child support obligation to another form of financial maintenance in the event of exceptional circumstances (such as mental or physical disability of the child), or prevents a child over the age of 23 from seeking other forms of financial maintenance or reimbursement from a parent so long as same is not payable or enforceable as “child support” (defined as “the amount required to be paid under a judgment, decree, or order, whether temporary, final or subject to modification, issued by the Superior Court, Chancery Division, Family Part or a court or administrative agency of competent jurisdiction of another state, for the support and maintenance of a child, or the support and maintenance of a child and the parent with whom the child is living, which provides monetary support, health care coverage, any arrearage or reimbursement, and which may include other related costs and fees, interest and penalties, income withholding, attorney’s fees and other relief”). It is also important to note that obligations not payable through the Probation Division will not generate the automatic notices referenced above, and that an application to modify the child support obligation will most likely be necessary in the event that the child support obligation is for the benefit of more than one child.

If you have any questions in regards to New Jersey child support, emancipation, divorce, alimony, equitable distribution, or family law, you may wish to consult with an experienced family law attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Keyport, Cliffwood Beach, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.

Family Law Practice Specialties:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

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New Jersey Divorce: Alimony and Prospective Retirement

By: Justin M. Smigelsky, Esq.

 

Pursuant to the recently amended alimony statute, an alimony obligor may seek to modify or terminate his or her alimony obligation upon his or her “prospective or actual retirement.” Generally, for an alimony order entered after the effective date of the statute, the revised alimony law establishes a rebuttable presumption that alimony will be terminated upon the obligor reaching full retirement age. For an alimony order entered prior to the effective date of the revised statute, the obligor’s reaching full retirement age is deemed a good faith retirement age, but the burden of proof remains with the obligor to demonstrate why alimony should terminate. Furthermore, if an alimony obligor intends to prospectively retire, the Court may establish the conditions under which termination or modification of alimony will be effective; however, the statute fails to fully define what prospective retirement actually means for purposes of an application to modify or terminate alimony.
Pursuant to N.J.S.A. 2A:34-23(j)(2),

Where the obligor seeks to retire prior to attaining the full retirement age as defined in this section [eligible to receive benefits under section 216 of the Social Security Act], the obligor shall have the burden of demonstrating by a preponderance of the evidence that the prospective or actual retirement is reasonable and made in good faith. Both the obligor’s application to the court for modification or termination of alimony and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification.

The statute then lists several factors for the Court to consider in determining whether the alimony obligor has met his or her burden to demonstrate that his or her prospective or actual retirement prior to attaining full retirement age is “reasonable and made in good faith.”
In a recent, published decision of the Ocean County Superior Court, the Honorable Lawrence R. Jones, J.S.C., addressed when and how an alimony obligor may seek to modify or terminate his or her alimony obligation based upon prospective retirement. In Mueller v. Mueller, Judge Jones reasoned that, although the amended alimony statute does not set a specific minimum or maximum time period for obtaining an advance ruling on a prospective retirement, “the spirit of the amended statute…inherently contemplates that the prospective retirement will take effect within reasonable proximity to the application itself, rather than several years in advance of same.” Judge Jones went on to explain that

when an obligor reasonably approaches retirement age, and files a motion setting forth a specific proposed plan for a prospective and projective retirement in the near future, a court may now address and consider the merits of same under the amended alimony statute, and render a ruling regarding a proposed termination or modification of alimony, to take effect upon the obligor’s actual retirement in accordance with the proposed plan.

In Mueller, Judge Jones determined that an application filed five (5) years in advance of the contemplated retirement, without a detailed plan for retirement in the near future, constituted speculation and a “general desire to someday retire” which is insufficient under the statute. Although a Chancery Division case and, therefore, not binding precedent, Judge Jones’ well-reasoned decision is helpful in guiding the alimony obligor and family law attorney as to modification and termination of alimony based upon prospective retirement.
If you have any questions in regards to divorce in New Jersey, alimony, child support, equitable distribution, or family law, you may wish to consult with an experienced family law attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.


Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.

Family Law Practice Specialties:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/family-law/

New Jersey Personal Injury Law: Impact of DUI on Car Accident Lawsuit

By: Justin M. Smigelsky, Esq.

 

If an individual sustains injury as a result of a car accident in New Jersey in which he or she was under the influence of drugs or alcohol, and he or she is convicted of or pleads guilty to such an offense, there are strict limitations on the ability to file a personal injury lawsuit. Specifically, pursuant to N.J.S.A. 39:6A-4.5(b),

Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A. 39:4-50, 39:4-50.4a], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.

The ban set forth in the statute exists irrespective of whether the impaired driver is at fault in the accident. Pursuant to case law, the statutory ban also applies to restrict an heir of the impaired driver from recovering under the New Jersey Wrongful Death Act if the impaired driver would have similarly been restricted under the statute. However, pursuant to a 2011 New Jersey Supreme Court decision, where an impaired driver has no cause of action under the statute, he or she may be able to pursue a “dram shop” claim and seek recovery against a liquor licensee that served him or her during a time of visible intoxication – this is because the purpose of the statute set forth above was to reduce automobile insurance premiums, not to immunize liquor licensees or bar (no pun intended) claims under the Dram Shop Act. Additionally, the statute only applies to third-party claims and claims for UM/UIM benefits where the first-party insurer takes the place of the tortfeasor – an impaired driver injured as the result of a car accident will not be prohibited under the statute from pursuing Personal Injury Protection (PIP) benefits.

It is worth noting that New Jersey has a Statute of Limitations that prevents the filing of a personal injury complaint or claim petition for workers’ compensation benefits after two (2) years from the date of the accident in most instances. Furthermore, if you wish to pursue a claim against a public entity or governmental agency, or any employee of a public entity, you must give timely notice of the intent to file a claim, which is ordinarily within ninety (90) days from the date you knew or should have known of the cause of action. Failure to bring a claim within an applicable time period may cause any claim you may have had to be barred forever. Therefore, if you have been injured and wish to seek compensation, it is imperative that you do so immediately upon sustaining injury.
If you have been injured or have any questions in regards to personal injury law, you may wish to consult with an experienced personal injury attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  /  2017  /  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County, Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding personal injury law, please contact the attorneys at Timothy J. Little, P.C.

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New Jersey Estate Administration & Litigation: Pre-Death Conduct and Powers of Attorney

By: Justin M. Smigelsky, Esq.

 

Unfortunately, disputes regarding powers of attorney are becoming more prevalent in New Jersey estate litigation. A power of attorney is a writing by which one person, the principal, appoints another as his agent, and confers upon that agent the authority to act in the principal’s place for the purposes set forth in the document.

In New Jersey estate litigation, a power of attorney dispute can arise in many circumstances including, but not limited to, when the agent uses the power of attorney document for his or her own benefit or other improper purpose, or when the authority itself is attacked based upon allegations of undue influence, duress, or lack of capacity. Oftentimes, a dispute regarding a power of attorney will involve allegations that the agent transferred assets or modified the beneficiary of an account or policy without authorization.

Under New Jersey law, powers of attorney are governed by the “Revised Durable Power of Attorney Act,” N.J.S.A. 46:2B-8.1, et seq. Pursuant to statute, an attorney-in-fact must be expressly and specifically authorized to make gifts or change beneficiary designations of the principal. Specifically, the statute states:

A power of attorney shall not be construed to authorize the attorney-in-fact to gratuitously transfer property of the principal to the attorney-in-fact or to others except to the extent that the power of attorney expressly and specifically so authorizes. An authorization in a power of attorney to generally perform all acts which the principal could perform if personally present and capable of acting, or words of like effect or meaning, is not an express or specific authorization to make gifts.

 

N.J.S.A. 46:2B-8.13a.

Under New Jersey common law in effect prior to the enactment of N.J.S.A. 46:2B-8.13a, an agent holding a power of attorney could not appropriate to himself or give away the assets of the principal unless the power of attorney contained very clear language permitting such action. See Manna v. Pirozzi, 44 N.J. Super. 227 (App. Div. 1957). Therefore, under the common law, if an agent conveyed assets without specific authorization in the power of attorney document to do so, same could constitute an illegal act and a breach of his fiduciary obligations.

In sum, unless the power of attorney document contains very clear enabling language, the agent is not permitted to give the principal’s assets to himself or to others. In fact, the principal, his heirs, or his representative, may compel the agent to provide an accounting of all financial transactions conducted by the agent during his tenure – as is often the case, this obligation to account may be enforced by the executor or administrator of the principal’s estate after the principal has passed away.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding powers of attorney, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq.  –  Timothy J. Little, P.C.  –   2017  –  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County, Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, administration, or litigation, please contact the attorneys at Timothy J. Little, P.C. http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
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New Jersey Estate Planning & Administration: How Does Divorce Impact An Estate Plan?

By: Justin M. Smigelsky, Esq.

 

It is ordinarily suggested that a client modify his or her estate planning documents in the event of any significant life events including, but not limited to, relocation to another state or country; changes in financial circumstances; changes in tax laws; changes in relationships; the death, disability, or incapacity of any designated beneficiary or fiduciary; and marriage or divorce. However, oftentimes a divorcee will fail to modify his or her Last Will and Testament or insurance policy beneficiaries at the conclusion of the divorce proceedings – what happens in the event that the existing Will benefits the ex-spouse or names the ex-spouse as a fiduciary?

Fortunately, New Jersey has a statute that addresses this circumstance and potentially limits the repercussions for failing to modify an estate plan. Pursuant to N.J.S.A. 3B:3-14, “except as provided by the express terms of the governing instrument, a court order, or a contract relating to the division of the marital estate,” a divorce or annulment serves to revoke any revocable disposition benefitting the former spouse (including by way of Last Will and Testament or life insurance policy), and revokes the nomination of the ex-spouse as Executor or Executrix. At the time of the divorce or annulment, provisions of the “governing instrument” are treated as if the former spouse, and relatives of the former spouse, disclaimed any disposition of property or, in the event of an appointment as fiduciary, the ex-spouse and any relatives died immediately before the divorce or annulment – pursuant to case law, evidence of contrary intent is irrelevant in the event of a challenge to the revocation. Furthermore, pursuant to the statute, the interest of the former spouse in property held by them as joint tenants with the right of survivorship or as tenants by the entireties is severed, and the interest is transformed into a tenancy in common.

It is important to note that, in the event that any provisions in the governing instrument are revoked under the statute, they may be revived by a remarriage between the divorced parties, or by a revocation, suspension, or nullification of the divorce or annulment. Additionally, in the event that the ex-spouse is benefitted by a document executed after the divorce, he or she may still benefit from the deceased spouse or serve as a fiduciary. It is also important to note that a divorce or annulment does not nullify dispositions made pursuant to a qualified retirement plan; for example, in the event a beneficiary is designated for a 401(k) plan or any type of retirement plan subject to Federal law, such designations are not revoked under the pre-empted New Jersey statute. Litigation will often occur where an ex-spouse benefits from the deceased ex-spouse’s failure upon divorce to modify beneficiary designations for a qualified retirement plan; therefore, it is highly recommended that you evaluate all beneficiary designations and estate planning documents in the event of a divorce.

If you have any questions in regards to the divorce process, your Marital Settlement Agreement, alimony, child support, or family law, you may wish to consult with an experienced family law attorney. Similarly, because estate and trust planning, administration, and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding your estate plan, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County, Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C. http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/

Family Law Practice Specialties:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

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New Jersey Divorce: The Early Settlement Panel

By: Justin M. Smigelsky, Esq.

 

In an effort to avoid the time, expense, energy, and risks of contested litigation, parties to a divorce in New Jersey are often required to participate in the Early Settlement Panel, or “ESP” as it is commonly referred. In a recent, unpublished decision of the Ocean County Superior Court, the Honorable Lawrence R. Jones, J.S.C., addressed the significance of the Early Settlement Panel. In Swift v. Swift, Judge Jones explicated Rule 5:5-5 of the New Jersey Rules of Court as well as the significance of the divorcing parties’ participation in the program.

As succinctly explained by Judge Jones, generally, the Family Part of each Superior Court sets aside at least one day per month as an “ESP day,” whereby a panel of volunteer panelists – ordinarily, experienced divorce attorneys – donate their time, energy, and knowledge to assist the divorcing parties in resolving the issues in dispute. At the ESP, the panelists are provided with each party’s Case Information Statement, an overview of the case, and the parties’ general positions as to the issues in dispute, and will make non-binding, confidential recommendations for a potential agreement. The proceedings of the Early Settlement Panel are confidential in nature – all discussions, negotiations, offers, counter-offers, and recommendations are treated as confidential and, if the case does not settle, no offer, counter-offer, statement, or recommendation may be presented to the Court as evidence against either party.

As stated by Judge Jones, in order for the ESP program to be successful, both parties must be willing to participate. Pursuant to the Rules of Court, parties to the divorce action, once referred to the Program, are required to participate in the Early Settlement Panel as scheduled. The failure of either party to participate in the Early Settlement Panel, to provide his or her Case Information Statement, or to provide “a submission” to the Early Settlement Panel coordinator in the county of venue, could result in sanctions against the non-cooperating party including the assessment of attorney fees and/or dismissal of that party’s pleadings.

If you have any questions in regards to divorce in New Jersey, the Early Settlement Panel, equitable distribution, or family law, you may wish to consult with an experienced family law attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.


Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2016 – All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County, Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C. http://timothyjlittlelaw.com/

Family Law Practice Specialties:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/family-law/

New Jersey Estate Administration & Litigation: The Importance of Having a Will

By: Justin M. Smigelsky, Esq.

 

Shockingly, it is estimated that seventy percent (70%) of adult Americans do not have a Last Will and Testament. There are many reasons why the majority of adults in this country do not have a Will including, but not limited to, laziness, discomfort in pondering and planning for death, misconception as to the cost to have an attorney prepare the Will, and, as is most often the situation, misunderstanding as to the significance of having a Will.

Despite the popular misconception, having a Will is not only important for the elderly or people with wealth – if you are over the age of eighteen (18), you should have a Will, regardless of whether or not you have assets. A few reasons why you should immediately have a Will properly drafted by an attorney on your behalf are so that you may:

1. Avoid intestacy and New Jersey’s intestate succession laws;
2. Designate the specific beneficiaries to receive your probate estate upon your death;
3. Designate specific items or the percentage of your assets to pass to each beneficiary you select;
4. Designate someone you trust as the executor or executrix of your estate;
5. Avoid the cost and complication of having an administrator or administratrix appointed to administer your estate;
6. Avoid the requirement that the fiduciary post a bond in being appointed;
7. Designate the specific authority you wish for your executor or executrix to have;
8. Designate a guardian for your minor children;
9. Address complex family relationships (such as a second marriage) and ensure that your assets are distributed according to your wishes;
10. Establish testamentary trusts to ensure that distributions are managed properly on behalf of minor or “Special Needs” beneficiaries upon settlement of the estate; and
11. Address “death tax” consequences as the result of your passing.

Having a Will is also important in allowing the testator or testatrix to plan for his or her funeral. Pursuant to New Jersey statute, a testator/testatrix may appoint a person in his or her Will to control his or her funeral and disposition of human remains. It is not necessary that the appointed funeral representative be the executor/executrix of the Will, and the designated representative may act prior to the Will being admitted to probate. In the event that the decedent died intestate (without a Will) the right to control the funeral and disposition, unless otherwise ordered by the Court, is dictated by statute and could easily result in litigation.

Estate planning is not a one-size-fits-all concept and most estate plans require monitoring and periodic revisions. It is ordinarily suggested that a client modify his or her estate planning documents in the event of any significant life events including, but not limited to, relocation to another state or country; changes in financial circumstances; changes in tax laws; changes in relationships; the death, disability, or incapacity of any designated beneficiary or fiduciary; and marriage or divorce. It is also essential that a client understands the difference between probate and non-probate assets and what specific assets will pass through the Will, as opposed to by law or by contract.

Because estate and trust planning, administration, and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are planning your estate or are a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding estate planning, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
 

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved
 
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County, Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, administration, or litigation, please contact the attorneys at Timothy J. Little, P.C. http://timothyjlittlelaw.com/

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-administration-and-litigation/

New Jersey Estate Administration & Litigation: What is a “Caveat” Against the Probate of a Will?

By: Justin M. Smigelsky, Esq.

New Jersey law requires a period of ten (10) days to elapse between the death of the testator and the probate of his or her Last Will and Testament; therefore, a contestant is provided with what is ordinarily a short period of time within which to file a “caveat” against the probate of the Will. A caveat against the probate of a Will is a legal notice that should be filed with the Surrogate’s Office in the county where the decedent resided at the time of his or her death. Once a caveat is filed with the Surrogate’s Office, the Surrogate is prevented from acting, and anyone challenging the caveat must file a complaint upon an order to show cause in the Superior Court, Chancery Division – Probate Part. A caveat serves to preclude the entry of the probate judgment until the order to show cause is filed, the matter is set for a hearing, and the validity of the Will may be determined. In other words, upon the filing of a caveat, the Will may not be probated and appointment of the executor or executrix can not take place while the caveat remains on file.

Only a party who might be injured by the admission of the Will to probate may file a caveat against admission of the Will – this includes a next-of-kin, a judgment creditor, or a beneficiary under an earlier Will executed by the testator. A caveat should be filed in the Surrogate’s Office in every county where the decedent may have been domiciled – if the decedent had more than one residence, or if he had property in more than one county, the caveator should protect his interests in the event the Will is presented for probate in any one of those counties.

Although the validity of a Will may be challenged for a certain period of time after it has been admitted to probate (generally, four months), if a caveat is properly filed, it prevents the executor or executrix from receiving letters testamentary; if, on the other hand, an action is filed to set aside the Will after it has been admitted to probate, the executor or executrix would have been already permitted to undertake administration and, possibly, distribution. In sum, it is usually advantageous to prevent the probate of a doubtful Will by filing a caveat, rather than seeking to challenge the probate judgment after the Will has been admitted.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C., 2017, all rights reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County, Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, administration, or litigation, please contact the attorneys at Timothy J. Little, P.C.

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)