An Incapcaitated Mother’s Successor Trustee is Overwhelmed by Duties. So What Can They Do?

incapacitated adultHere’s an unfortunate story. Mom is incapacitated. She can no longer serve as trustee of her living trust. As successor trustee, the job has fallen to her daughter who is finding the job too difficult and time-consuming. She doesn’t want to do it anymore. Although her brother is backup trustee, the mother named him reluctantly because he is not a responsible person.  There are concerns that he is not up to the responsibility. Can the existing trustee remove the brother from the list and designate someone else to serve, maybe a trusted cousin who is a CPA?

Well, this is a tough question. Now that the daughter has taken over as trustee from her incapacitated mother, her authority is limited to what the trust says she can do. Thus, she would be able to appoint someone as her own successor only if the trust gives her that authority. But even if it does not, do not despair. As successor trustee, you do not need to do all the work of trust administration. You are free to hire competent professionals to assist you. It is totally appropriate to use the services of a lawyer or law firm, that has the capacity to facilitate the management of the trust or a professional money manager and investment advisor. You can also call upon the expertise of a Certified Public Accountant, a real estate broker or any other relevant professional.

Contact me personally today to discuss your New Jersey trust matter. I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns. You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Trust Attorney

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Commercial Leases: Does it Matter if You Fail to Give Notice of Intent to Renew Your Lease?

A common provision in commercial leases is an option requiring the tenant to notify the landlord of their intention to renew the lease or purchase the property by a specific date. What happens, however, if the tenant fails to provide the landlord with timely notice?  In New Jersey, courts generally enforce the lease as written. Therefore, if the tenant fails to renew by the deadline, courts will likely strictly enforce the lease terms.

Exceptions to the General Rule:  When a Tenant’s Late Notice is Permitted

There are a few narrow exceptions to the general rule of strict enforcement of the option provision.  There are five special circumstances:  (1) the tenant would sustain substantial harm if it were forced to relocate; (2) the landlord did not change its position in reliance on the tenant’s delay; (3) the tenant’s failure to give timely notice was due to an honest mistake of fact; (4) the delay was slight; and (5) the loss to the landlord was insignificant.  The relocation prong likely requires an inquiry into whether the success of the business relies on the location.

Contact me personally today to discuss your New Jersey real estate and landlord tenant matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

By Fredrick P. Niemann, Esq., a Freehold Township, Monmouth County, New Jersey Real Estate and Landlord Tenant Attorney

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Monmouth/Middlesex Adult Protective Services Presents In-House Training Seminar to the Attorneys and Staff at Hanlon Niemann & Wright

Jessica ReyesIt was our pleasure on June 18, 2019 to welcome Ms. Jessica Reyes, Director of the Monmouth/Middlesex County Adult Protective Services, to Hanlon Niemann & Wright for an in-house training seminar.  Ms. Reyes presented a comprehensive Powerpoint presentation on the services provided by this non-profit agency on behalf of elderly persons who are the victims of abuse and/or financial exploitation.   On behalf of Hanlon Niemann & Wright, we thank Ms. Reyes for her thorough and very informative presentation.  We will be able to benefit all of our clients when there are issues involving the topic of elder abuse and financial exploitation being present.

Contact me personally today to discuss your New Jersey elder abuse and/or financial exploitation matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

Jessica H. Reyes, LSW can be reached at 732-531-9191 or by email jreyes@fcsmonmouth.org
Family Children’s Services
191 Bath Avenue
Long Branch, NJ 07740

By Fredrick P. Niemann, Esq. of Hanlon Niemann a Freehold, New Jersey Elder Abuse and/or Financial Exploitation Attorney

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Bank Accounts Must Go Through Probate If There Is No Beneficiary Designated

Many banks have strict policies regarding accounts that are subject to probate. They demand that the surrogate court provide “letters testamentary” before they’ll release a deceased person’s account to the executor/administrator. Many unknowing persons think that a death certificate and a Will alone be enough to gain access to the decedent’s account, especially if the Will says he or she receives all his/her assets. The bank will always say that is not sufficient.

If a person does not name a beneficiary to an account making it payable to a person on death, then it must go through probate. If the parent had designated a beneficiary, it would be as simple as presenting the bank with a death certificate for the beneficiary to get the money released. Any asset that passes under a Will must go through the probate court. Letters testamentary are issued by the court if there is formal probate administration appointing a personal representative. The personal representative receives the funds and then distributes them to the beneficiaries.

If the estate is small enough in lieu of formal probate, it may be eligible for a simpler proceeding called a summary administration. Read more about this probate option in my blog section of this site.

Contact me personally today to discuss your New Jersey probate matter. I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns. You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Probate Attorney

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A DNR (Do Not Resuscitate) Order is Legal in New Jersey Without a Terminal Illness

do not resuscitate order | DNRWe’ve all heard about a “Do Not Resuscitate Order” (DNR) but probably don’t know (precisely) what it means, or how it applies to you in real life.

A DNR order alerts emergency personnel that you do not wish to receive Cardiopulmonary resuscitation (CPR) in the event of a medical emergency. It is a medical order that must be signed by a doctor.

DNR orders are used primarily by people who are already critically ill and feel strongly that they do not want life-prolonging treatment when close to death. If you do not have a DNR order, emergency medical personnel must use all available measures, no matter how invasive, to save your life.

Awhile back a client wanted to create a DNR. He was a healthy active man of 85. However, he had a heart attack. He didn’t want to be revived but to end up housed in an institution or hospital for a long time. His family was opposed because he was gambling with his life, and they also claimed that he couldn’t get a DNR because he wasn’t terminally ill.  Who was right?

No, the family is incorrect; you can establish a valid DNRO without a terminal illness. The document says that in case of respiratory or cardiac failure, CPR should be withheld. A persons desire to avoid being left to linger or suffer is understandable, but it is very important that everyone understand that a DNRO can also prevent you from receiving treatment that might restore you to full capacity.

To be a legal document both you and your doctor must sign the DNRO. Your doctor should have a copy. You should keep a copy on your person. Without seeing it, EMTs are duty-bound to administer CPR.

I can understand the family’s opposition to their desires. After all, they want their father around as long as possible. Obviously, it is very personal; choice and his to make. But I would advise all concerned to talk about it a great deal more, so that everyone can come away with peace of mind.

To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Planning Attorney

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New Jersey Adopts a New Law Which Will Allow You to Die With Dignity and on Your Terms

The State Legislature recently adopted a law entitled  “Aid and Dying for the Terminally Ill Act” which will allow a qualified terminally ill patient to self-administer medication to end his/her life in a humane and dignified manner.

The new law provides that New Jersey’s long standing commitment to individual dignity, informed consent and the fundamental right of a competent adult to make healthcare decisions about whether to have life prolonged through medical or surgical procedures withdrawn and withheld is to be honored and affirmed.  As a result, a qualified terminally ill patient under appropriate safeguards and limitations can obtain medication that the patient may choose to self-administer in order to bring about the patient’s humane and dignified death.

As I indicated in the opening paragraph, there are a number of conditions that are attached to this new law which appear to be very reasonable in reading though I do disagree with some of the provisions as being a bit onerous and bureaucratic.   Still the law serves a very valuable purpose.  Having been with thousands of families over many years, I believe this law is appropriate and a responsible recognition of America’s aging population and the substantial burdens that many terminally ill persons face in the dying process.

While there are a number of individuals and organizations that believe that assistance in ending life is contrary to religious convictions, it is a suitable subject for discussion by all concerned.

I have copies of this Legislation available for anyone that may be interested.   Please contact me by email at fniemann@hnlawfirm.com and it will be our pleasure to send you a copy.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Elder Law Attorney

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Felt comfortable during my visit

After finding Fred Niemann on the internet and watching many of his videos, I knew his firm was knowledgeable in more than just Wills and estate planning.  Once I had the chance to meet with Fred Niemann, he was friendly and interested in my needs.  After talking with many local firms, I was very glad I had chosen the firm of Hanlon Niemann & Wright.
– Walter Sobieski

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Don’t Blow It! You Can Still Make a Late and Inexpensive Portability Election to Eliminate and/or Reduce Future Estate Death Taxes

estate death tax“Portability” (I’ll explain its definition later in the blog) allows the personal representative of an estate to preserve a deceased spouse’s unused federal estate and/or gift tax exemption amount for later use by the surviving spouse which may be applied against future gifts by the spouse and/or his or her federal taxable estate upon death.

In order to preserve portability, a personal representative is required to make an election on a timely filed IRS Form 706, following the death of the first spouse. If Form 706 is not filed within nine months of a decedent’s death or within 15 months if a request for an extension of time to file the return was timely obtained, a personal representative may be permanently prevented from preserving portability.

Recently, the IRS enacted Rev. Proc. 2017-34, which provides a permanent simplified method for the estates of decedents to obtain an extension of time to elect portability. This new revenue procedure states that if a portability election has not been timely made, a personal representative may do so on the latter of January 2, 2018 or the second anniversary of the decedent’s date of death, assuming certain administration requirements are met.

To make a late portability election under Re. Proc. 2017-34, the following conditions must be met; (a) the decedent must be survived by a spouse; (b) the decedent must have died after December 31, 2010; (c) the decedent must have been a citizen or resident of the United States on the date of death; (d) the executor must not have been required to file an estate tax return undersection 6018(a) of the Code (as determined based on the value of the gross estate and adjusted taxable gifts and without regard to the need to file for portability purposes); € the executor must not have filed an estate tax return; (f) the person permitted to make the election must file a complete and properly prepared Form 706 on the latter of January 2, 2018, or the second annual anniversary of the decedent’s date of death; and (g) the Form 706 must state at the top that the return is “FILED PURSUANT TO REV. PROC. 2017-34 TO ELECT PORTABILITY UNDER  § 2010(c)(5)(A).”

How It Works

Making a late portability election is recommended for most estates that meet the above criteria, even if a surviving spouse’s assets do not exceed the present federal estate and gift tax exemption amount, in large part because we cannot predict what Congress might do in the future, nor is it possible to foresee what could become of a client’s assets whether through good fortune or growth. It is feasible that congress will, in the future, adjust the exemption amount or another aspect of the existing estate tax laws to the detriment of future beneficiaries, or that the client could come into a large cash reward.

For many taxpayers, preserving portability may ultimately prove to be unnecessary. However, for certain taxpayers, it could result in substantial tax savings upon death. Rather than “wait and see” what happens in the future, counsel representing estates of decedents who are survived by a spouse should immediately consider a portability election while it is guaranteed and does not require the expense and uncertainty of attempting to obtain a late portability election in the future.

To discuss your NJ Estate Probate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Probate Administration Attorney

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No Contest Clause in Will Can Be (Un)enforceable in New Jersey

Many clients want to avoid challenges to their Last Will and Trust.  They are generally concerned about some family member who is “all about the money”.  They’re thinking their Will should include a no-contest clause to protect their good kids from greedy or unstable siblings, other children, etc.  Perhaps over the years there’s been hints that assets in the family really came from other donors, etc.  Parents envision others going after what he/she thinks is theirs and making the lives of beneficiaries miserable after the person is gone.

Unfortunately (or fortunately, depending upon your position) a no-contest clause is not enforceable in New Jersey. Also known as an in terrorem clause, it specifies that any interested party who contests an estate plan automatically gets nothing. The clause can be unenforceable whether included in a will or a trust. Even when a no-contest clause is valid, it does not apply to someone who is excluded from an inheritance; it applies only to beneficiaries whose inheritances will be forfeited if they challenge the estate.

One suggestion to reduce the threat of a challenge is to create a trust rather than rely on a will. A private document, a trust does not need to be filed with the probate court. Because it is not public and is not open to ready inspection, a trust tends to be more difficult to challenge than a will. The best way to protect kids and loved ones from a will contest case is to get advice from a competent and experienced estate probate and litigation attorney who actively does estate planning.  He/she deals with these kinds of problems all the time and can suggest strategies to minimize the chances of bad people creating problems, or of prevailing if they do.

Contact me personally today to discuss your New Jersey estate planning, Last Will, trust and contest matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Will Contest Attorney

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Understanding the Differences in the Many New Jersey Medicaid Programs

By Fredrick Niemann, Esq.NJ Medicaid Eligibility Attorney

NJ MedicaidAs an elder law attorney, I regularly work in the State Medicaid programs that provide long term care benefits.  I categorize these programs primarily as institutional Medicaid and community waiver Medicaid under the MLTSS Program (Managed Long Term Support Services).

Institutional Medicaid covers long term care in a nursing home.  New Jersey is a no “maximum income limit state with a medically needy program”.  What this means is that we have two (2) institutional Medicaid programs within the main institutional Medicaid program.  Confusing isn’t it? The first program is the “Medicaid Only” program which is for residents who have income below the maximum income limit (currently $2,205.00 gross income per month in 2017-2018).  For those with income greater than $2,205.00 (even by $1), there is the Medically Needy Waiver program provided the applicant does not have additional income which exceeds the Medicaid reimbursement rate (the rate that which Medicaid pays the nursing home which is generally between $5000.00 and $6000.00 per month.

The community waiver program(s) that New Jersey elder law attorneys frequently work in are for the long term care of elderly persons. These programs have been rolled into a program called MLTSS.  These programs include Assisted Living Medicaid and Home Based Medicaid.  There are many other smaller Medicaid programs that are very infrequently used.  It is important to understand that no 2 Medicaid programs are exactly alike as far as the rules and regulations are concerned.  There are many similarities.  But, there are also many differences.

One thing that is common to all New Jersey Medicaid programs is that Medicaid is a needs based program, meaning that one has to meet certain financial requirements in order to be eligible.  There is an income limit test plus a maximum resource test.

One more point to consider is that Medicaid is a combination federal/state program.  Congress passed some basic laws and has allotted money to New Jersey if it offers Medicaid to certain eligible residents.  The state must follow these basic rules but New Jersey is responsible to administer its own Medicaid program.  It is also free to offer additional Medicaid programs beyond what the federal government requires.

Federal Law has led to many variations from state to state when comparing Medicaid programs and how the rules are applied.  For example, New York’s Medicaid programs differ in very significant ways from New Jersey’s Medicaid programs.  Because the federal government provides no oversight to be sure that its rules are being followed, in some cases the states blatantly ignore those rules.  It is left to the elder law attorneys to challenge the State when it flagrantly disregards the clear law.

Contact me personally today to discuss your New Jersey Medicaid eligibility matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

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