A Last Will and Testament confers upon every executor thereunder, in the absence of a contrary provision in the Will or in a court order, a wide-ranging set of administrative powers authorizing him or her so to act, provided he or she acts in good faith and with reasonable discretion.
Pursuant to the New Jersey Probate Code, unless otherwise limited by judgment, order, or the governing document, an executor, administrator, or trustee shall have the power “[t]o compromise, contest, or otherwise settle any claim in favor of the estate, trust, or fiduciary or in favor of third persons and against the estate, trust, or fiduciary.” As specifically referenced in the statute, this power also applies to New Jersey Transfer Inheritance Tax, New Jersey or Federal Estate Tax, income or other taxes.
As with the exercise of any power, an executor or administrator must always act “in good faith within the sphere of their powers, and exercise the care, circumspection and judgment of persons of ordinary prudence and sagacity.” Pursuant to New Jersey case law, if the only reasonable action under the circumstances would be to bring action to enforce a claim, the executor is under a duty to bring the action, but, if it is reasonably prudent to pay, release, compromise, or settle the claim, the executor has the power to do so – an executor “may buy the peace of the estate he represents, and extinguish doubtful claims against it, provided he acts discreetly and in good faith.”
In sum, in administering an estate, it is essential that the fiduciary understand the scope of his or her authority, proceed cautiously, and, as permitted by statute, that the fiduciary retain an experienced attorney in the event he or she has any questions or concerns as to whether he or she is taking an appropriate course of action.
Because estate administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 removing an executor or administrator from office. 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
Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, 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, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents clients 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 Township, 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, Howell, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County (Jackson, Brick, Point Pleasant, Toms River), Somerset County, and Burlington County (Chesterfield).
http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-executors-power-to-compromise-contest-or-settle-claims/
http://timothyjlittlelaw.com/
http://timothyjlittlelaw.com/location/middlesex-county/old-bridge-nj-attorney/old-bridge-new-jersey-attorney-justin-m-smigelsky-esq/
Tuesday, May 23, 2017
Thursday, May 18, 2017
New Jersey Probate & Estate Litigation: “When Will I Receive My Inheritance?”
In administering an estate, beneficiaries of the estate will routinely ask – “when will I receive my inheritance?” The answer, of course, is – “it depends.”
Ordinarily, it will take approximately one year to complete the administration process and, in fact, distribution of an intestate’s property is not supposed to be made prior to the expiration of one year after the granting of administration. Ideally, administration can be completed within this time; however, the exact timeframe is unpredictable based upon numerous factors including the disposition of any real estate, tax issues that may arise, issues with creditors of the estate, and the degree to which any litigation ensues. For example, in the event that an Estate Tax Return must be filed, or judicial intervention becomes necessary, an administration period of two years or more may be necessary.
Pursuant to the New Jersey Probate Code, an executor or administrator is under a duty to settle and distribute the estate “as expeditiously and efficiently as is consistent with the best interests of the estate.” Furthermore, an executor or administrator “shall proceed expeditiously with the settlement and distribution of a decedent’s estate and do so without adjudication, order, or direction of a court, but he may invoke the jurisdiction of a court, in proceedings authorized by law to resolve questions concerning the estate or its administration.”
While it is necessary for the fiduciary to proceed expeditiously, it is essential that he or she observe the requisite standard of care; specifically, that he or she “observe the standards in dealing with the estate assets that would be observed by a prudent man dealing with the property of another.” Also, if the personal representative has special skills or is named personal representative on the basis of representations of special skills or expertise, he or she is under a duty to use those special skills or that expertise. In the event that the fiduciary fails to proceed expeditiously, or fails to properly administer the estate, action to compel settlement of the estate or to remove the fiduciary may be necessary.
Because estate administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 removing an executor or administrator from office. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq. – All Rights Reserved
Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, 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, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)
Ordinarily, it will take approximately one year to complete the administration process and, in fact, distribution of an intestate’s property is not supposed to be made prior to the expiration of one year after the granting of administration. Ideally, administration can be completed within this time; however, the exact timeframe is unpredictable based upon numerous factors including the disposition of any real estate, tax issues that may arise, issues with creditors of the estate, and the degree to which any litigation ensues. For example, in the event that an Estate Tax Return must be filed, or judicial intervention becomes necessary, an administration period of two years or more may be necessary.
Pursuant to the New Jersey Probate Code, an executor or administrator is under a duty to settle and distribute the estate “as expeditiously and efficiently as is consistent with the best interests of the estate.” Furthermore, an executor or administrator “shall proceed expeditiously with the settlement and distribution of a decedent’s estate and do so without adjudication, order, or direction of a court, but he may invoke the jurisdiction of a court, in proceedings authorized by law to resolve questions concerning the estate or its administration.”
While it is necessary for the fiduciary to proceed expeditiously, it is essential that he or she observe the requisite standard of care; specifically, that he or she “observe the standards in dealing with the estate assets that would be observed by a prudent man dealing with the property of another.” Also, if the personal representative has special skills or is named personal representative on the basis of representations of special skills or expertise, he or she is under a duty to use those special skills or that expertise. In the event that the fiduciary fails to proceed expeditiously, or fails to properly administer the estate, action to compel settlement of the estate or to remove the fiduciary may be necessary.
Because estate administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 removing an executor or administrator from office. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq. – All Rights Reserved
Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, 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, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)
Tuesday, May 16, 2017
New Jersey Probate & Estate Litigation: Action to Remove an Executor or Administrator
Pursuant to the New Jersey Probate Code, an executor or administrator of an estate, a trustee, a guardian, or an agent under a Power of Attorney may be removed from office for the following reasons:
Because estate administration, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 removing an executor or administrator from office. 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
Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, 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, actions to compel an inventory, actins to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents clients 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 Township, 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, Howell, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County (Jackson, Brick, Point Pleasant, Toms River), Somerset County, and Burlington County (Chesterfield).
http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-action-to-remove-fiduciary/
http://timothyjlittlelaw.com/location/middlesex-county/old-bridge-nj-attorney/old-bridge-new-jersey-attorney-justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/
(A) After due notice of an order or judgment of the Court so directing, he or she neglects or refuses, to timely file an inventory, render an account, or give proper security;
(B) After due notice of any other order or judgment of the Court made under its proper authority, he neglects or refuses to perform or obey the order or judgment within the time fixed by the court;
(C) He or she has embezzled, wasted, or misapplied any part of the estate committed to his or her custody, or has abused the trust and confidence reposed in him or her;
(D) He or she has removed from the State of New Jersey or does not reside therein and neglects or refuses to proceed with the administration of the estate and perform the duties and trust devolving upon him;
(E) He or she is of unsound mind or mentally incapacitated for the transaction of business; or
(F) One or two or more fiduciaries has neglected to perform his or her duties or to join with the other fiduciary or fiduciaries in the administration of the estate committed to their care whereby the proper administration and settlement of the estate is or may be hindered or prevented.New Jersey case law is clear that, when a fiduciary is appointed by Will, removal by the Court will be granted only sparingly and with great caution; generally, Courts are reluctant to remove a fiduciary appointed by Will unless there is “clear and definite proof of fraud, gross carelessness, or indifference.” Furthermore, where the facts for and against removal are disputed, a plenary hearing must be held.
Because estate administration, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 removing an executor or administrator from office. 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
Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, 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, actions to compel an inventory, actins to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents clients 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 Township, 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, Howell, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County (Jackson, Brick, Point Pleasant, Toms River), Somerset County, and Burlington County (Chesterfield).
http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-action-to-remove-fiduciary/
http://timothyjlittlelaw.com/location/middlesex-county/old-bridge-nj-attorney/old-bridge-new-jersey-attorney-justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/
Tuesday, May 9, 2017
New Jersey Probate & Estate Litigation: Action to Compel Inventory of the Decedent’s Property
Generally, New Jersey law does not require that an Executor or Administrator file an inventory of the decedent’s assets as a matter of course. However, pursuant to the New Jersey Probate Code, the Court may force an Executor or Administrator to file an inventory of all real and personal property of the decedent “which has come to his hands, possession or knowledge or into the hands of any other person for him.”
Procedurally, an application to compel the filing of an inventory is brought in a summary manner by way of verified complaint upon an order to show cause, and is brought in the Superior Court, Chancery Division, Probate Part of the same county of appointment. By statute, an application to compel the filing of an inventory by the estate’s personal representative cannot be filed until three (3) months after appointment of the personal representative; however, limited exceptions may apply to this timeframe. Similar to the filing of a fiduciary accounting, an interested party may file exceptions to the inventory of the personal representative; ordinarily, a party may except to the inventory on the basis that the Administrator or Executor failed to include certain property in his or her inventory.
An inventory is intended to notify all interested parties of the assets and liabilities of the estate, and to presumptively fix the values of real and personal property. Therefore, it is necessary that appraisers be designated in accordance with the Probate Code. In any event, it is imperative that the personal representative’s inventory be specific, detailed, and accurately describe all assets, real and personal property, debts owed and claims.
Because estate administration, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 / inventory 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
Probate / 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, actions to compel an inventory, insolvency petitions, will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents clients 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 Township, 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, Howell, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County (Jackson, Brick, Point Pleasant, Toms River), Somerset County, and Burlington County (Chesterfield).
http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-action-to-compel-inventory-of-the-decedents-property/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-administration-and-litigation/
Procedurally, an application to compel the filing of an inventory is brought in a summary manner by way of verified complaint upon an order to show cause, and is brought in the Superior Court, Chancery Division, Probate Part of the same county of appointment. By statute, an application to compel the filing of an inventory by the estate’s personal representative cannot be filed until three (3) months after appointment of the personal representative; however, limited exceptions may apply to this timeframe. Similar to the filing of a fiduciary accounting, an interested party may file exceptions to the inventory of the personal representative; ordinarily, a party may except to the inventory on the basis that the Administrator or Executor failed to include certain property in his or her inventory.
An inventory is intended to notify all interested parties of the assets and liabilities of the estate, and to presumptively fix the values of real and personal property. Therefore, it is necessary that appraisers be designated in accordance with the Probate Code. In any event, it is imperative that the personal representative’s inventory be specific, detailed, and accurately describe all assets, real and personal property, debts owed and claims.
Because estate administration, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 / inventory 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
Probate / 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, actions to compel an inventory, insolvency petitions, will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents clients 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 Township, 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, Howell, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County (Jackson, Brick, Point Pleasant, Toms River), Somerset County, and Burlington County (Chesterfield).
http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-action-to-compel-inventory-of-the-decedents-property/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-administration-and-litigation/
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