Probate Litigation - New Jersey Codicil Not Out (for Blood)

Pursuant to the New Jersey Wills Act, a will must be in writing, signed by the testator – or by some other person in his or her presence and at his or her direction – and signed by at least two witnesses to either (1) the signing of the will or (2) the testator’s acknowledgement of that signature or acknowledgement of the will.

In the alternative, pursuant to N.J.S.A. 3B:3-2(b) and N.J.S.A. 3B:3-3, a noncompliant document may suffice if the signature and material portions of the document are in the testator’s handwriting or if the proponent of the document can establish by clear and convincing evidence that the decedent intended the document to constitute his or her will.

 

In a recent, unpublished decision, the Superior Court of New Jersey, Appellate Division applied N.J.S.A. 3B:3-3 to a dispute concerning a holographic codicil to a will drafted by the scrivener/testator. In In the Matter of the Will of E. Warren Bradway, on the same day that his life partnership officially terminated, Bradway drafted a one-page codicil to his will which directed that all references to his ex-partner be replaced with the name of his new partner – in a bizarre twist, Bradway wrote the codicil using his own blood as ink!

 

Upon Bradway’s unexpected death, the estate filed an action in the Chancery Division, Probate Part to admit his will and codicil to probate. The decedent’s ex-partner soon filed an answer and counterclaim, contesting the validity of the holographic codicil. In May of 2017, a bench trial was conducted in which DNA and handwriting experts on behalf of each party opined as to the source of both the handwriting and blood on the document. Most importantly, both handwriting experts opined that the handwriting in the body of the codicil was the decedent’s handwriting and, although the DNA experts did not have a DNA sample from the decedent, they compared blood provided by the decedent’s two brothers and opined that the blood came from a full-sibling of the decedent’s brothers. At the conclusion of the contestant’s experts’ testimony, the estate moved for a directed verdict. In granting the estate’s motion, the trial court reasoned that, even without analyzing the signature on the codicil, the handwriting and content of the codicil clearly and convincingly established the decedent’s intent to alter his will. Thus, pursuant to N.J.S.A. 3B:3-3, the trial court entered an order of judgment admitting the will and codicil to probate.

 

On appeal, the Appellate Division analyzed N.J.S.A. 3B:3-2 and N.J.S.A. 3B:3-3, and, for purposes of the motion, similarly accepted the contestant’s position that the codicil was unsigned at the time of death. As a document or writing need not be signed by the testator to be recognized as a will or codicil under N.J.S.A. 3B:3-3, the question addressed was whether there was clear and convincing evidence that the decedent intended the codicil to alter his will. The Appellate Division agreed with the trial court that evidence of the decedent’s clear and convincing intent was established by the codicil itself; specifically, the codicil used language showing a clear intent to be a freely attested-to codicil, the codicil contained identifiers that clearly and convincingly established that the decedent intended to alter his will, and that the codicil was prepared using the scrivener’s own blood added support to the other clear and convincing evidence. Thus, the decision of the trial court was affirmed.

 

The drafting and execution of a will is extremely technical and should not be undertaken by a layperson without the assistance of a qualified estate planning attorney. Although numerous forms of fill-in-the-blank and do-it-yourself kits can be obtained with a few clicks of your mouse, you should never draft a will or codicil without proper assistance. Even if the document is admitted to probate, the scrivener has most likely created ambiguity or has failed to include any number of provisions which will have unintended and unexpected consequences on his or her estate. Additionally, any ambiguity in the document or, as in Bradway discussed above, any opportunity for dispute that is left open for a disgruntled party will most certainly lead to costly and protracted litigation. There are far too many problems that could arise if the document is not properly prepared and executed – the disposition of your estate is far too important to jeopardize by not seeking the assistance of a qualified attorney. In the event that you insist on preparing your own document, at the very least, please use ink!

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ABOUT PROBATE LITIGATION

Estate planning, administration, and litigation require particular knowledge. The Probate Litigation Practice Group at Windels Marx – offering a unique skill set with extensive experience in trusts and estates planning, probate litigation, and tax matters – represents parties in contested trust and estate matters in Probate Courts throughout the U.S. You may wish to consult with an attorney with such experience if you have questions regarding the probate process, your rights and obligations in the administration of an estate or trust, fiduciary duties relating to an estate or trust, or the feasibility of contesting a will or defending against a will contest.

 

DISCLAIMER

Please take note that this article is for information purposes only and was drafted with reference to New Jersey law. In some jurisdictions, this material may be deemed as attorney advertising. Past results do not guarantee future outcomes. Possession of this material does not constitute an attorney / client relationship.

New Jersey Probate & Estate Litigation: Funeral, Burial, and Disinterment Disputes

In addition to the traditional will contest, estate litigation includes, among numerous other potential claims, claims related to funeral arrangements, burial, and disinterment. Most disputes in this regard must be resolved by determining the authorized person to make such decisions.

Sadly, estate litigation may first manifest itself in disputes regarding funeral arrangements and the burial of a loved one. The right to control funerals and disposition of a loved one’s remains is set forth by statute. Pursuant to 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 set forth by statute in the following priority:

1.      Surviving spouse (unless an active restraining order exists or an intentional killing of the decedent by the surviving spouse has occurred);

2.      Majority of surviving adult children;

3.      Surviving parent(s);

4.      Majority of siblings;

5.      Other next of kin according to degree of consanguinity; and

6.      If no known relative, any representative providing written authorization.

With respect to the disinterment of human remains in New Jersey, a separate statute controls. In litigation involving disinterment of a loved one, the Judge may consider the decedent’s wishes, however expressed. In recent disputes regarding disinterment, the New Jersey Supreme Court has noted several key differences between disinterment and interment rights – as opposed to interment, disinterment is strongly disfavored, and the shared authority to disinter is provided, with joint written authorization required, to the surviving spouse, any adult children, and the owner of the interment space. As clearly set forth in the relevant statutes, and as highlighted in recent reported decisions, a surviving spouse’s primary authority to make an interment decision is reduced to authority shared with all surviving adult children of the decedent.

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 funeral, burial, or disinterment of a loved one, 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., 2018, all rights reserved

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New Jersey Probate & Estate Litigation: Appointment of Estate Administrator

An administrator of an estate – be it a general administrator, administrator with the Will annexed, substitutionary administrator, administrator ad prosequendum, administrator pendente lite, temporary administrator, or other form – is an officer of the Court, and may secure his or her letters of administration only through appointment by the Surrogate or Superior Court.
Pursuant to the New Jersey Probate Code, when an individual passes away intestate:

Administration of the intestate’s estate shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and, if none of them will accept the administration, then to any other person as will accept the administration.

If an application for letters of administration is made by the person first entitled thereto, no renunciation or notice is required by the Rules of Court. Where application for letters is made by a person other than one who alone has the right to letters, the applicant must produce either executed Renunciation for Administration documents, signed by any competent adult person whose right to the letters is prior or equal to that of the applicant, or proof that all such persons who have not renounced have received notice of the application. Where Renunciations have not been secured, the Surrogate’s Court may also require notice to interested parties other than those entitled to letters. In the event that the applicant indicates that there are no known next of kin, or he or she has no knowledge as to the existence of next of kin, the applicant is required to file proof that proper notice was provided to the Office of the Attorney General. It is important to note that failure to give the required notice may result in reopening of the judgment granting letters of administration.

In certain instances, such as where persons entitled to notice cannot be located, application for letters of administration must be made to the Superior Court, Chancery Division – Probate Part by way of Verified Complaint upon Order to Show Cause. In such instances, it is important to consult with an experienced probate attorney.

Because estate planning, administration, and litigation require specialized knowledge, you may wish to consult with an experienced attorney if you are planning your estate, or the 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, challenges to a Will, contests and caveats, 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., 2018, all rights reserved

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New Jersey Probate & Estate Law: What is Probate?

“Probate” is the legal process wherein the legitimacy of a Last Will and Testament is established. Upon the death of the person for whom the Will was drafted – known as the “testator” or “testatrix” – the probate process can begin; however, by law, the Surrogate cannot probate the Will and issue Letters Testamentary until the eleventh (11^th) day after the death of the decedent.

Once appointed by the Surrogate, the Executor or Executrix must properly serve “Notice of Probate” and will commence his or her fiduciary obligations including, but not limited to, locating, taking control of, and preserving estate property, keeping all interested parties reasonably informed as to the status of the estate, accounting for all assets and liabilities of the estate, and acting expeditiously to settle the estate either formally or informally.

Certain estates may not require probate; for example, where the only asset is real estate owned as tenants by entirety with rights of survivorship, or a life insurance policy or financial account payable on death to a designated individual, administration of the estate may not be required. While most estates will contain at least one asset requiring appointment of an appropriate fiduciary (e.g., a car in the name of the decedent, uncashed checks issued to the decedent, or financial accounts in the sole name of the decedent), it is important to determine whether or not probate is required under the circumstances. It is also important to determine whether or not such a “non-probate” estate is subject to inheritance and/or estate tax and, if so, the filing deadlines for any returns, the amount of tax due, and who is responsible for the payment of any such tax.

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.  –  2018  –  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, funeral and interment disputes, cemetery law, 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)

New Jersey Probate & Estate Litigation: Exceptions to the Executor’s Account

A fiduciary – an executor, administrator, guardian, or trustee – holds a position of trust. Because the fiduciary acts for the benefit of others, he must account for the manner in which he handles the assets entrusted to him. Accordingly, a fiduciary has an obligation to account to the beneficiary, at reasonable times, for each item of the estate or trust that comes into his hands.

An action by the personal representative of an estate to settle his or her account is commenced by filing a complaint and the issuance of an order to show cause in the Chancery Division – Probate Part of the Superior Court. In all actions for the settlement of accounts, interested parties (including creditors, heirs, beneficiaries, etc.) then have the opportunity to serve the personal representative with written exceptions thereto.

Pursuant to the New Jersey Rules of Court, in all actions by a fiduciary for the settlement of accounts, other than plenary actions, any interested party may serve the accountant with written exceptions to any item in or omission from the account, including any exceptions to the commissions or attorney’s fees requested. It is essential that any such exceptions be filed in a timely fashion and drafted and executed in proper form.

The exceptions to the account must state particularly the item or omission excepted to, the modification sought in the account, and the reasons for the modification. By way of example, exemptions to an account may challenge a matter described in the inventory, charges or allowances requested, items improperly omitted from the account, depreciation in investments, the executor commission, or the requested counsel fees. Exceptions which are not stricken because of insufficiency in law must be adjudicated upon an evidentiary hearing unless no factual dispute exists.

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 Areas: 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)




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New Jersey Divorce & Family Law: Dissipation of Marital Property

Marital fault on the part of one spouse is not one of the factors that may properly be taken into account in determining equitable distribution of marital assets in a given case. However, by statute, the court is required to consider “the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property.” Although the term “dissipation” is not defined in the statute, and “is not susceptible to a precise definition,” case law reveals that “the concept is a plastic one, suited to fit the demands of the individual case.”

Generally, “dissipation” may exist where one spouse utilizes marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy – the facts and circumstances in a particular case must be analyzed to determine whether a given course of conduct constitutes dissipation as contemplated by the statute. Where one party spends marital funds extravagantly or to his or her own benefit, the amount of property available for distribution by the court will obviously be diminished; however, each spouse is generally vested with the authority to spend marital funds for his or her own enjoyment until such time as the parties are contemplating a divorce. As discussed in detail in Kothari v. Kothari, dissipation of marital assets involves an attempt to reconcile these conflicting interests in the marital estate.

In the Kothari matter, the Defendant/Husband sent thousands of dollars to his parents in India, which he asserted was to satisfy his moral obligation to repay money he received from them to finance his medical education and initial passage from India. Although Plaintiff/Wife knew that marital money was being sent, it was clear to the court that she objected to this arrangement. The trial court concluded that, although the parties had accumulated essentially nothing during the marriage, the parties’ funds acquired during the marriage “went somewhere” and, therefore, Plaintiff/Wife was entitled to enjoy a fifty-percent (50%) interest in those assets.

On appeal, the Appellate Division noted that several factors must be considered when one party asserts that marital assets have been dissipated including (1) the proximity of the expenditures to the parties’ separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditures benefitted the “joint” marital enterprise or were for the benefit of one spouse to the exclusion of the other, and (4) the need for and amount of the expenditure. In affirming the trial court’s determination as to dissipation, the Appellate Division found it clear that the expenditures were not made to benefit the marital enterprise, served only Defendant/Husband’s personal interest, and were designed to divert from Plaintiff/Wife her equitable share of the marital assets. The Appellate Division also determined that, although the marital funds may not have been “in existence” at the filing date of the Complaint for Divorce, a finding of dissipation may necessitate that the asset subject to distribution take the form of a cash indebtedness to be imposed by the court upon one spouse in favor of the other. In regards to marital fault, the Appellate Division approved the trial court’s consideration of Defendant/Husband’s abandonment and callous disregard of his family, not because the conduct reflected marital fault, but because the conduct revealed an intent to deny Plaintiff/Wife her share of marital assets.

Whether or not marital assets have been “dissipated” as contemplated by the statute depends upon the facts and circumstances in a particular case. If you have any questions in regards to divorce in New Jersey, dissipation claims as to marital assets, equitable distribution, or any aspect of family 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. Timothy J. Little, Esq. and Justin M. Smigelsky, Esq. represent 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, Holmdel, Lincroft, Manalapan, Englishtown, Marlboro), Union County (Rahway, Elizabeth), Ocean County (Brick, Jackson, Toms River), 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

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New Jersey Probate & Estate Litigation: What is Notice of Probate?

Pursuant to the Rules of Court, the personal representative of an estate is required to mail, within sixty (60) days of the probate of a will, notice in writing that the will has been probated. The “notice of probate” must be sent to the decedent’s spouse, heirs, next of kin, other persons (if any) entitled to letters, and all beneficiaries under the will. Such notice must also contain additional information including, but not limited to, the place and date of probate and the name and address of the personal representative. Within ten (10) days of mailing, proper proof of same must be filed with the Surrogate.

If the name or address of anyone entitled to notice of probate is not known, or cannot by reasonable inquiry be determined, then it may be necessary to publish the notice in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate. Additionally, in the event that any property in the will is devoted to a present or future charitable use or purpose, like notice must be mailed to the Office of the Attorney General. In this instance, the Attorney General is entitled to a copy of the will with the notice, and it may be necessary to continually involve the Office of the Attorney General in the administration of the estate.

Although failure to provide the necessary notice of probate will ordinarily not render the probate judgment void, failure to provide the required notice could be of significant consequence, especially in the event of a will contest.

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).

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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)

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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

 

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New Jersey Family Law: Responding to the Complaint for Divorce

When served with a Complaint for Divorce, a prospective client will ordinarily ask – “what should I do?” Typically, in a New Jersey divorce, there will be four (4) alternatives:

1. File an “Appearance” in which the allegations requesting the divorce are not contested, but contesting the customary issues of the divorce proceedings;
2. File an “Answer” in which the allegations contained within the Complaint are denied and dismissal of the Complaint for Divorce is requested;
3. File an “Answer and Counterclaim” in which the allegations contained within the Complaint are denied, dismissal of the Plaintiff’s Complaint for Divorce is requested, and a counterclaim for divorce is made whereby the Defendant makes his or her own claims for relief; or
4. Do nothing, which may result in default being entered.

Generally, when service of the Complaint for Divorce is made upon the Defendant, a proper response must be filed within thirty-five (35) days of service, exclusive of the day of service. Although the time for filing and serving a responsive pleading may be extended in some instances by either consent of the parties or by Court Order for good cause shown, a served party should consult with an experienced divorce attorney as soon as possible to determine which form of response is appropriate under the particular circumstances of the case.

The New Jersey Rules of Court permit a Defendant to file a written appearance and, without filing an Answer, be heard as to the issues of alimony, equitable distribution of property, custody and visitation, child support, attorney fees and costs, and other issues incident to the divorce proceedings. Alternatively, a party may wish to file an Answer if he or she desires to contest the grounds for divorce or other collateral issues – the Answer responds to the specific allegations of the Complaint, admitting the allegations that are true, denying those that are false, indicating when he or she does not have knowledge or information to sufficiently respond, and asserting any affirmative defenses. If the party filing an Answer desires any affirmative relief for any cause of action that may exist, he or she may wish to file a Counterclaim.

On the other hand, when a served Defendant fails to file a proper response with the Court, default may be entered. Of course, if a party wishes to be heard as to any issues pertinent to the divorce, he or she should file a timely responsive pleading. However, as explained in Clementi v. Clementi, 434 N.J. Super. 529 (Ch. Div. 2013), by the Honorable Lawrence R. Jones, J.S.C., recently retired of the Ocean County Superior Court, when a Defendant defaults and fails to participate in the divorce proceedings, the Plaintiff is not automatically entitled to all requests he or she has made; rather, the Plaintiff “still has an ongoing obligation to persuade the Court, by a preponderance of the evidence, that the proposal for equitable distribution is fair and equitable under the specific facts of the case.”  Nonetheless, a served party should immediately consult with an experienced divorce attorney as soon as possible to ensure that his or her interests are protected.

If you have any questions in regards to divorce in New Jersey, equitable distribution, or any aspect of family 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

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New Jersey Family Law: Irreconcilable Differences as Grounds for Divorce

 

New Jersey law has been gradually evolving to allow for easier termination of “dead marriages” regardless of fault. Fault of either spouse has continued to decrease in significance, while the impact of filing for divorce based upon fault is ordinarily not significant. It is important to note that each divorce matter is different, and it is essential that each case be evaluated based upon its particulars. It is also important to note that, to properly file a complaint for divorce, the jurisdictional requirements must be met and a valid marriage must be in existence at the time of filing.

 Although the New Jersey legislature has expressed its policy to terminate “dead marriages,” merely showing that a marriage is “dead” is not enough for divorce under New Jersey law – the parties and situation must meet specific statutory criteria before a court can terminate the marriage. Pursuant to statute, so long as all of the circumstances permit, a party may be granted a divorce based upon any of the following grounds:

1. Adultery;
2. Willful and continuous desertion for twelve (12) or more months;
3. Extreme cruelty;
4. Separation (separate habitations for at least 18 consecutive months);
5. Voluntary addiction or habituation to narcotics or habitual drunkenness;
6. Institutionalization for mental illness;
7. Imprisonment for eighteen (18) or more consecutive months after marriage;
8. Deviant sexual conduct; and, as is most common,
9. Irreconcilable differences.

Effective January 20, 2007, divorce may be adjudged in New Jersey for irreconcilable differences that have caused the breakdown of the marriage for a period of six (6) months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation. Filing for divorce based upon irreconcilable differences will ordinarily allow the complaint for divorce to be shorter, less intrusive upon the privacy of the parties and, hopefully, will allow the proceedings to be less contentious.  

 

If you have any questions in regards to divorce in New Jersey, equitable distribution, or any aspect of family 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. - 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, Esq. and Justin M. Smigelsky, Esq. represent 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, Holmdel, Lincroft, Manalapan, Englishtown, Marlboro), Union County (Rahway, Elizabeth), Ocean County (Brick, Jackson, Toms River), 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

 

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New Jersey Probate & Estate Litigation: Executor’s Power to Compromise, Contest, or Settle Claims

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).

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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)

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:

(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).

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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).

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New Jersey Personal Injury Law: Things to Do After a Car Accident

Following an auto / car accident, a prospective client will ordinarily ask, “what should I do?” The following is a general guide as to some of the necessary steps to take if you have been injured in a car accident. It is important to note at the outset that no two cases are alike, and issues regarding insurance coverage, PIP coverage, or compensability of your injuries can be very complex – if you have been injured or have any questions in regards to personal injury law or your car accident, you should immediately 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.

Most importantly, if you have been injured, you should immediately seek necessary medical attention for any injuries sustained. To allow your treatment providers to properly diagnose and treat your injuries, it is necessary to inform any EMS personnel, doctors, nurses, and surgeons of your symptoms and complaints, as well as how the injury occurred. Failure to seek treatment immediately upon injury can obviously have serious consequences on your health – additionally, failure to properly document your injuries and treatment could be harmful to any claim you may have.

It is extremely important that the accident be properly documented and that all necessary information be gathered. Therefore, it is essential to immediately report the accident to the local police department, or to the New Jersey State Police depending upon the location – of course, this assumes that your injuries are not so severe so as to prevent you from doing so, or that you do not require emergency medical attention. Similarly, it is necessary to obtain the name, address, telephone number, license plate number, insurance information, and driver’s license number of everyone involved in the accident and any witnesses, while you should also make note of the weather conditions at that time, any observations of traffic signals or devices, commercial or other markings on any vehicles, and any possible contributing factor to the accident (cell phone usage, pedestrians, odor of alcohol, etc.).

To the extent possible, photographs should be immediately taken of the accident scene, any visible injuries, all vehicles involved, and any property damage. With today’s technology, your cell phone or tablet could be an easily accessible way to preserve this important evidence.

Next, any statements made at or about the time of the accident may be critical to your claims or defense; statements made to first responders, investigating officers, or any medical treatment providers will more-likely-than-not be presented if any claim is made as the result of the accident. Therefore, it is imperative that you exercise the utmost discretion in any statements you make to anybody. Generally, because your words could easily be misinterpreted or twisted against your interests, it is suggested that you not unnecessarily discuss the accident or your injuries with anyone other than your attorney or your treating doctor – insurance companies are notorious for soliciting statements that could later be used against you. On the same note, be sure to consult with your attorney prior to signing any documents.

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.

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. represents injured 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, Linden), Ocean County (Brick, Toms River, Jackson, Point Pleasant), Somerset County, and Burlington County.

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New Jersey Probate & Estate Litigation: Who is Entitled to the Joint Bank Account?

Unfortunately, disputes regarding joint bank accounts are very common in New Jersey estate litigation. Oftentimes, joint accounts will be established with an elderly parent for convenience purposes or a joint account will be created with a “right of survivorship” in an effort to make a testamentary disposition (a “poor man’s Will”). Most people, however, fail to understand the significance of jointly owning a bank account or the rights of the surviving owner upon the death of the other owner of the account – this misunderstanding of the law will often result in estate litigation.

Pursuant to New Jersey statute, during the lifetime of all parties, a joint account ordinarily belongs to the parties in proportion to the net contributions by each to the sums on deposit; however, in the event that a contrary intent is manifested by the terms of the contract or deposit agreement, or there is clear and convincing evidence of a different intent at the time the account is created, this presumption may be rebutted. But who is entitled to the funds in the joint account upon the death of the other owner?

Generally, pursuant to New Jersey statute, there is a presumption of survivorship on joint bank accounts – upon the death of one of the account owners, the funds in the joint account will belong to the surviving owner unless there is clear and convincing evidence of a different intention at the time the account was created. As defined by statute, an “account” means a contract of deposit of funds between a depositor and a financial institution, and includes checking accounts, savings accounts, certificates of deposit, share accounts, and other like arrangements.

In a fairly recent published opinion concerning litigation over joint accounts, Estate of Ostlund v. Ostlund, 391 N.J. Super. 390 (App. Div. 2007), the Appellate Division considered an estate’s right to funds held jointly in an account between the decedent and her son. The Court reiterated that, when the Mutli-Party Deposit Account Act governs the right of survivorship, the funds will belong to the joint owner upon death unless there is clear and convincing evidence of a different intent at the time the account was created. Interestingly, in assessing whether the account should be deemed an estate asset, the Court also analyzed whether undue influence had been exercised in regards to the creation of the account.

It is important to note that, even if a joint owner is entitled to a joint account upon the death of the other owner, if other assets of the estate are insufficient, those funds may be deemed available to satisfy debts, taxes, and expenses of administration. Therefore, it is essential that any action regarding funds in a joint bank account be carefully considered. It is also important to note that, in most cases, a proper estate plan and a properly executed power of attorney document will help to avoid a later dispute as to joint accounts.

Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding your inheritance, a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, powers of attorney, refunding bonds and releases, undue influence, 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. represents 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 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, Freehold, Howell), Union County (Rahway, Elizabeth), Ocean County (Jackson, Point Pleasant, Brick, Toms River), Somerset County, and Burlington County (Chesterfield).

Probate / Estate Practice Areas: 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, undue influence, 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 Probate & Estate Litigation: Jurisdiction of the Surrogate vs the Superior Court, Chancery Division, Probate Part

Ordinarily, application for the probate of a will, for letters testamentary, or for letters of administration will be filed with the county Surrogate. However, as set forth in the Rules Governing the Courts of the State of New Jersey, there are certain matters in which the Surrogate may not act; specifically, unless explicitly authorized by the Superior Court, the Surrogate’s Court shall not act in any matter in which:

1. A caveat has been filed with it before the entry of its judgment;
2. A doubt arises on the face of a will or a will has been lost or destroyed;
3. The application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3;
4. The application is to appoint an administrator pendente lite or other limited administrator;
5. A dispute arises before the Surrogate’s Court as to any matter; or
6. The Surrogate certifies the case to be of doubt or difficulty.

When the Surrogate is prohibited from acting, any person in interest can apply to the Chancery Division, Probate Part for an order to show cause why the relief requested should not be granted. In one of the most-recent decisions to address jurisdiction of probate matters, In re Estate of Stockdale, 196 N.J. 275 (2008), the loss of jurisdiction of the Surrogate’s Court once a caveat has been filed was confirmed; specifically, the New Jersey Supreme Court explained:

Although an uncontested, straightforward will may be admitted to probate through the Surrogate’s Court, as distinguished from the Probate Part of the Chancery Division of the Superior Court, and although letters testamentary or letters of administration may be issued thereon in that forum…if there is a dispute about the will…or if a caveat has been lodged against the will offered or expected to be offered for probate, the Surrogate’s Court is not empowered to act and the issues must instead be resolved through proceedings in the Superior Court, Chancery Division, Probate Part…

The Court further explained:

The act of lodging, or filing, the caveat prevents the Surrogate from issuing letters that otherwise would operate so as to authorize a particular individual or entity to begin the administration of the estate and causes the matter to be pursued, generally in a summary matter…in the Probate Part…Alternatively, if a will has already been admitted to probate, it may be challenged by the timely filing of a complaint in the Probate Part.

Accordingly, when the Surrogate does not have or has lost jurisdiction in certain probate matters, it may be necessary to commence proceedings in the Superior Court, Chancery Division, Probate Part.

Because probate, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have any questions regarding your inheritance, a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, refunding bonds and releases, and preparation or filing of an accounting for the administration of an estate or trust. 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

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