Friday, August 18, 2017

New Jersey Probate & Estate Administration: What Is Intestacy?



Pursuant to the New Jersey Probate Code, any part of a decedent’s estate not effectively disposed of by his or her Will passes by “intestate succession” to the decedent’s heirs. The intestate succession statutes provide rules and procedures for the disposition of the estate of an individual who pass away without an effective Will, and act as an “estate plan provided by law” to transfer the decedent’s property.

For decedent’s dying on or after September 1, 1978, the intestate share of the surviving spouse or domestic partner may be the entire estate, or a varying percentage of the estate, depending upon whether there are surviving descendants or parents of the decedent, and whether any of the decedent’s surviving descendants are not descendants of the surviving spouse. Any part of the intestate estate that does not pass to the decedent’s surviving spouse or domestic partner, or the entire estate if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:
  1. To the decedent’s descendants by representation;
  2. If there are no surviving descendants, to the decedent’s parents equally or to the surviving parent;
  3. If no surviving descendants or parents, to the descendants of the decedent’s parents or either of them by representation;
  4. If no surviving descendant, parent, or descendant of a parent, to the decedent’s grandparents as specified by the statute with reference to the maternal and paternal side,
  5. If none of the above, to the descendants of the decedent’s grandparents depending upon the “degree of kinship,”
  6. Or, if none of the above, to the decedent’s step-children or their descendants by representation.
As can be imagined, it is not always a simple process to determine how, or in what shares, a decedent’s estate will be distributed in accordance with the laws of intestacy; however, the New Jersey Probate Code contemplates most complications within the family unit – for example, the intestacy statutes address the disposition of an estate where “relatives of the half blood,” after-born heirs, or adopted children are involved, where the names and addresses of potential heirs are unknown, or where there is a dispute regarding the paternity of the decedent or descendant of the decedent. It is important to point out that the intestacy laws are applied without discretion –for example, the law does not consider whether or not you got along with (or you ever met) the heir who may be a beneficiary of your intestate estate.

Avoiding the laws of intestacy, and some of the bizarre results that may occur upon application of the statutes, is one of the many reasons why you should have a competent attorney prepare your Will. 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.

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)

http://timothyjlittlelaw.com/new-jersey-probate-estate-administration-what-is-intestacy/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/will-contest-estate-litigation-attorney-justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/location/middlesex-county/old-bridge-nj-attorney/old-bridge-new-jersey-probate-estate-litigation-attorney-justin-m-smigelsky-esq/

Thursday, August 10, 2017

New Jersey Child Custody: Removal of a Child from New Jersey in Light of Bisbing v. Bisbing

Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.   [emphasis added]
On August 8, 2017, the New Jersey Supreme Court re-addressed the legal standard for interstate relocation with a child. Pursuant to Bisbing v. Bisbing, the landmark Baures standard for relocation applications was upended – in determining the outcome of contested relocation applications pursuant to N.J.S.A. 9:2-2 in which the parents share legal custody, the Court should now conduct a best-interests analysis to determine whether “cause” exists under the statute. The “best interests” standard should be conducted whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody.
 
In Bisbing, the parties agreed to joint legal custody with primary residential custody to the wife so long as she did not remove the children from the State, to live within twenty (20) miles of each other in New Jersey, and that neither party could remove the children from New Jersey without consent of the other party. However, nine (9) months after the Judgment of Divorce, the wife informed her ex-husband that she desired to relocate the children from New Jersey to Utah. In a well-reasoned decision, the Appellate Division determined that a plenary hearing was necessary and, if the negotiation for the non-relocation provision was in bad faith, the more-stringent best-interests-of-the-child standard would apply, as opposed to the Baures factors. On the other hand, if the party alleging bad faith could not demonstrate that bad faith negotiations took place, one of the following tests would be applied: (1) If wife could demonstrate a substantial and unanticipated change in circumstances to warrant avoidance of the agreed-upon non-relocation provision, the Baures analysis would be appropriate; or (2) If wife failed to demonstrate a substantial and unanticipated change in circumstances, the Court must determine the best interests of the children.
 
Following the Appellate Division’s decision, the wife’s petition for certification was granted, and the New Jersey Supreme Court re-addressed the legal standard for interstate relocation. In deciding to abandon the Baures standard in favor of the more-stringent best-interests analysis, the Supreme Court noted that relocation may affect children in many different ways and also noted the possibility that the Baures standard may lead to unnecessary disputes regarding the designation of the custodial parent. Additionally, the Court determined that N.J.S.A. 9:2-2 does not infringe on the relocating parent’s constitutional right to interstate travel.
 
Prior to August 8, 2017, the landmark decision of Baures v. Lewis, 167 N.J. 91, 116 (2001), applied to removal applications. Pursuant to Baures, where a parent already exercised primary custody, he or she only was required to demonstrate (1) a good faith reason for the move, and (2) that the move was not inimical to the child’s interests. As set forth in Baures, in assessing whether an application for removal was made in good faith and whether the move would not be inimical to the child’s best interests, the Court was to consider the following factors: (1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; and (12) any other factor bearing on the child’s interest.
 
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 Areas:
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