The experience was terrific

Ever since my initial encounter with Hanlon Niemann & Wright (I was with my father), the entire staff was professional, efficient, courteous, and very approachable.  All of our needs were met in a timely manner.  We even had fun with Fred.  The experience was terrific.  I would highly recommend them to everyone.
Lois Mahler

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When Can a Court Award Legal Fees Against an Estate in Connection with Probate Litigation

legal feesIn probate litigation, it is common for one or all sides to ask for reimbursement of their legal fees and the costs of prosecuting/defending the case.  So, what is the law on this subject?  Do the parties get reimbursed their legal fees and costs?

Under Rule 4:42-9 (a) 2 – Fund in Court.  A Probate court can allow legal fees from a “fund in court” under certain circumstances.  So what is a “fund in court”?  A “fund in court” is when there are assets, money and property interest in the hands of a fiduciary who is a party before the court.  A court may grant an award when a party, in the interest of not just himself or herself but for others, files legal action to protect this sum of money, or to seek to recover it from someone wrongfully in possession or files suit for the benefit of a class of beneficiaries.  When a litigant is doing more than just advancing his or her own economic interests and there are multiple claimants to the fund, the courts have held it fair that all concerned contribute to the cost of the litigation.  The threshold question is always did the litigant advance the interest of others in the fund or just their own interest.  Advancing simply your own interest is not enough.

Sometimes, counsel fees can be awarded to an unsuccessful litigant(s).  As long as the lawsuit was filed concerning a fairly debatable question on behalf of a Fund, the court can award legal fees to an unsuccessful party.

Another source of legal authority for payment of legal fees and costs is Rule 4:42-9 (a) 3 – Probate Action.  In a probate action, if probate is refused, the court may make an allowance to be paid from the estate.  If probate is granted and it “appears that the contestant had reasonable basis for contesting the validity of the will or codicil”, the court may make an allowance to both the proponent and contestant out of the estate.  The Rule seems to limit itself to a challenge to probate.  However, some courts have expanded its application. In Risley v. Kirman, 56 NJ 464 (1970) the court allowed fees even though the attack was not really against the will but to the establishment of a testamentary trust for the benefit of the widow.  But In Re Sugarman, 191 NJ Super 385 (law 1983) held that a widow seeking her elective share was not entitled to an award from the estate.

My sense is that most probate courts will follow the literal reading of the Rule and only award fees when a reasonable challenge to the probate of the Will is involved, even though the contestant ultimately loses the case.

So there you have it, a brief discussion of the law addressing the title to this post.

Contact me personally to discuss your NJ probate litigation 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 email me at fniemann@hnlawfirm.com.

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

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There’s Been a Big Change to Special Needs Trust Law:  Learn About it Here

Special Needs TrustBack in the 1990’s, Congress passed a law that contained major changes to the federal Medicaid laws.  Included in the law was a provision permitting the creation of a special needs trust for disabled individuals under the age of 65.  This type of trust allows disabled individuals to place their assets in a special trust so he/she can preserve Medicaid eligibility.   This type of trust is known as a “d(4)(A) trust, a reference to the section of the law which created it.  It is also referred to as a 1st party Special Needs Trust because the assets place into the trust are owned by the disabled individual.

A special needs trust has particular importance to disabled individuals who may receive an inheritance from family members or others.  These trusts are also helpful to disabled individuals who have received personal injury settlements.  In both instances, the Special Needs Trust allows them to use the funds in the trust to improve their quality of life without sacrificing government assistance which pays for basic living , medical and/or long term care expenses.

Until recently, there existed for 23 years, a strange requirement under the law stated simply, that provided that only a parent, grandparent, guardian or court could set up a first party Special Needs Trusts but it did not specifically allow the disabled individual to set up the trust.  This omission created an unnecessary cost for many who wanted to take advantage of this “safe harbor” for their assets.

At Hanlon Niemann & Wright, we have set up these types of trusts for clients for many years.  The problem, however, we encounter exists when the disabled individual does not have a parent or grandparent alive or a guardian.  That left only one option, petitioning a New Jersey court to establish the trust.  This resulted in added legal fees, especially if the judge required a hearing.

That all changed recently with the adoption of the Fairness in Medicaid Supplemental Needs Trusts Act.  The law inserts two words – “the individual” – into the law.  Now a disabled individual can be the grantor and establish his or her own first party Special Needs Trusts without having to go to court to do so.

There will still be some disabled individuals who won’t be able to set up their own Special Needs Trusts.  An individual with mental capacity issues who needs a guardian to make decisions for them won’t be able to establish their own trust, but the change solves the problem for individuals whose disability is of a physical nature and who have no need for a guardian.  It’s been a long time coming and the omission never made any sense, but finally, this unfairness in the law has been rectified.

One thing remains unchanged.  The laws concerning Special Needs Trusts are complicated.  It is still important to consult with an elder and disability planning attorney knowledgeable and experienced in setting up Special Needs Trusts.  There is too much at stake to take a “do it yourself” approach.

To discuss your NJ Special Needs Trust 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., a Freehold Township, Monmouth County NJ Special Needs Trust Attorney

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Hey Doc, You Better Report Me to Motor Vehicles or You’ll Get Sued if I Hurt Someone

I read an interesting article written by a personal injury attorney involving a case he settled when a physically and cognitively impaired patient killed a person in a motor vehicle accident. The driver’s doctors were sued for negligence because they failed to report the driver to the NJ Department of motor vehicles.

Read the article; it’s very interesting.

Doctor

Do doctors owe a duty of care—outside the doctor/patient relationship—that supports a cause of action by third-party motorists?

With more than six million licensed drivers in New Jersey, it is statistically inevitable that medically impaired drivers will cause some auto accidents.

Indeed, a 2009 study by the National Highway Traffic Safety Administration (NHTSA) found that from July 3, 2005, to Dec. 31, 2007, an estimated 49,868 drivers nationwide were reported to have been involved in crashes precipitated by drivers’ medical emergencies. The study, titled “The Contribution of Medical Conditions to Passenger Vehicle Crashes,” analyzed data from the National Motor Vehicle Crash Causation Survey (NMVCCS). The NMVCCS was limited to crashes involving light passenger vehicles to which emergency medical services had been dispatched.

All told, the NHTSA study found that an estimated 20,000 drivers annually, at an estimated incidence rate of 1.3% of all drivers in NMVCCS crashes, were in an accident precipitated by a driver’s medical emergency.

However, not all medical emergencies that precipitate crashes are created equal. Some medical impairments present suddenly. Others, such as impairments caused by epilepsy and diabetes, can be controlled by medication and/or have warning signs that potentially allow a driver to get off the road before harm occurs. The NHTSA study recommends patient education by health care providers on early warning signs of a health crisis and on potential side effects of medications as the most effective countermeasure against risky driving for this latter group.

But what about crashes that occur because doctors failed to prevent seriously disabled patients from endangering the motoring public with their driving? Do doctors owe a duty of care—outside the doctor/patient relationship—that supports a cause of action by third-party motorists?

In a case of first impression in New Jersey, we recently argued that several doctors who had been providing long-term treatment to a patient who suffered from extensive visual, physical and cognitive impairments and loss of motor coordination caused by multiple sclerosis had a legal duty to report a patient to the Motor Vehicle Commission to precipitate a medical review that would have resulted in the revocation of the patient’s driving privileges. Because they failed to do so, we argued, the doctors could be held liable in a wrongful death suit brought on behalf of a third-party motorist who was killed when their patient caused an accident.

The argument survived summary judgment and yielded a substantial settlement for our client. Below we discuss the “perfect storm” of factual circumstances and legal and medical authority that allowed us to push for a good faith extension of New Jersey law.

An Accident Waiting to Happen

First and foremost, the crash that killed our client’s husband was the proverbial “accident waiting to happen,” and we argued that the driver’s doctors should have identified his situation, counseled him to discontinue driving and reported him to the Motor Vehicle Commission. The driver testified that he was never told to stop driving, and if he had been so instructed by his physicians, he would have voluntarily stopped.

The accident occurred when the driver, who suffered from significant physical, cognitive and visual impairments secondary to multiple sclerosis, missed a right turn onto his street and made an illegal U-turn directly into the path of our client’s husband, who was lawfully riding his motorcycle, on a clear and sunny day, with his headlight on, wearing all of his safety gear, including a helmet. For 15 years, the driver’s doctors had been documenting his progressively worsening medical condition. Their notes revealed that he had severely impaired vision, problems with depth perception, a left hand that was “severely weak to the point of being useless and wasted” and brain atrophy, among other disabilities that rendered him unsafe to drive. In fact, the doctors were aware that the driver had been involved in a series of motor vehicle accidents. Yet, they did not instruct him to stop driving and did not report him to the New Jersey Division of Motor Vehicles, as was their legal and professional obligation.

The police investigation documented the driver’s extensive medical impairments. At the scene, officers immediately observed that the driver, who was not injured in the crash, suffered from a significant loss of motor function and vision. They noted in their report that he almost fell over numerous times while attempting to walk, with the assistance of a cane, to the patrol unit. An officer had to help the driver into the vehicle. In the hours following the crash, the driver gave a videotaped police interview in which his severe medical limitations were visually documented.

Concerned that the driver’s medical condition contributed to the accident, the investigating officer completed a “Driver Examination and/or Medical Evaluation Request” form for the Motor Vehicle Commission. The officer checked a box on the form indicating that the driver had mental or physical disorders that may affect his ability to drive safely.

In short, the evidence unequivocally established that the impaired driver caused the accident and that his doctors should have foreseen the risk and taken him off the road. Against this backdrop, we made a three-pronged legal argument that the doctors breached a duty of care they owed to our client’s husband as a member of the motoring public.

AMA Ethics Opinion

For the first prong of our argument, we relied upon the duty of care established by the American Medical Association (AMA) when it developed and adopted Ethics Opinion 2.24, “Impaired Drivers and Their Physicians.” The stated reason for the Opinion, which the AMA adopted in 1999, was to: “articulate physicians’ responsibility to recognize impairments in patients’ driving ability that pose a strong threat to public safety and which ultimately may need to be reported to the Department of Motor Vehicles ….”

The Opinion imposes several duties on physicians. They are required to assess their patients and identify physical and mental impairments that could potentially result in unsafe driving. Physicians must determine whether their patients pose a risk to public safety and take steps to prevent the danger—including counseling their patients to not drive, and reporting them to the Department of Motor Vehicles.

Indeed, even the New Jersey Motor Vehicle Commission website refers to the AMA’s Ethics Opinion, noting that: “[T]he American Medical Association (AMA) 1999 ethical guidelines states that all physicians are ethically responsible for notifying the state motor vehicle department if they believe a patient may not be able to drive safely.”

During depositions, we elicited testimony from the impaired driver’s doctors that AMA Ethics Opinion 2.24 represents the standard of care.

New Jersey Statutory Authority

For the second prong, we relied upon N.J.S.A. §39:3-10.4, which supplements AMA Ethics Opinion 2.24, and addresses New Jersey’s strong public interest in protecting the motoring public from drivers who are rendered unsafe by physical and cognitive impairments. The statute provides:

Each physician treating any person 16 years of age or older for recurrent convulsive seizures or for recurrent periods of unconsciousness or for impairment or loss of motor coordination due to conditions such as, but not limited to, epilepsy in any of its forms, when such conditions persist or recur despite medical treatments, shall within 24 hours after his determination of such fact, report the same to the Director of the Division of Motor Vehicles. The director, in consultation with the State Commissioner of Health, shall prescribe and furnish the forms on which such reports shall be made.

In the unpublished decision of Corso v. State, 2009 WL 1451333, the New Jersey Appellate Division determined that physicians owe a duty to third parties under N.J.S.A. §39:3-10.4. However, we had to distinguish our client’s case from Corso because the plaintiff in Corso was unable to prove a causal link between the driver’s medical condition and the accident.

Analogy to Social Hosts

For the third prong, we drew an analogy between the strong public interest addressed by N.J.S.A. §39:3-10.4, and the strong public interest articulated by the New Jersey Supreme Court in protecting the motoring public from alcohol-impaired drivers.

In Kelly v. Gwinnell, 96 N.J. 538 (1984), the New Jersey Supreme Court created a duty between social hosts and third-party motorists injured by drivers to whom they provided alcohol. The court held that it was foreseeable to social hosts that continuing to serve alcohol to intoxicated guests could cause injuries to innocent third parties on the roadway.

We argued that it is fully a part of New Jersey’s public interest in protecting the motoring public to hold physicians to a duty akin to that of social hosts when the AMA standard of care requires them to counsel and report patients whose impairments may affect their ability to drive safely, and in light of their statutory obligation to report physically impaired drivers under N.J.S.A. §39:3-10.4.

Pushing Legal Boundaries

As personal injury attorneys, it is our duty—indeed one of our highest callings—to obtain justice for individuals who are injured under circumstances that do not necessarily fit neatly into existing legal boundaries. When a client presents with personal injuries caused by a medically impaired driver, we urge plaintiffs’ counsel to think outside the usual litigation toolbox and to take the next step to advance this emerging area of law.

If you have questions about an elder care 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 Elder Care Attorney

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Who Has Priority to be Appointed Administrator of the Estate of a Deceased Adult, a Parent or the Decedent’s Ex-Spouse or Their Minor Child?

Estate Administration ProbateAn adult parent dies.  It’s tragic.  Now his or her estate needs to be probated and administered.  The person was divorced at the time of his/her death.  Who is legally eligible to handle the estate?

The appointment statute gives first priority to the “surviving spouse or domestic partner” and if there is no surviving spouse” then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration.”  N.J.S.A. 3B:10-2.  Based on the intestacy statute N.J.S.A. 3B:5-4, a minor child (under age 18) inherits the entire estate.  Therefore, it would follow that he or she would have the highest priority of appointment.  But if he or she is a minor, neither is going to be appointed administrator.  So we have a situation where the “deceased adult’s estate leaves no heirs entitled to the administration of his estate.”  In that situation, “the Superior Court or surrogate’s court may grant letters of administration to any fit person applying therefor.”  N.J.S.A. 3B:10-2.  Based on that, both an ex-wife and/or the parents of the deceased adult child have the same claim to administer the estate.

The way the Surrogate would likely handle this situation is if the ex-spouse wants to administer the estate, she would have to get the parents to renounce, as the parents are closer in kin and would get the entire estate if something were to happen to the child.  If the parents refused, she would have to go to court to get appointed.  Either way, to protect the inheritance rights of the minor child, an interested person (grandparent or ex-spouse) should go to court asking for permission to set up a trust for the child and to have either the ex-spouse or grandparents be the administrator/trustee.  If the parents are suspicious of the ex-spouse, then one of them could serve as a co-trustee of the trust.

Contact me personally today to discuss your New Jersey estate administration 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 NJ Estate Administration Attorney

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Are You Really Married in New Jersey If There is a Religious Wedding But No Marriage License?

marriage licenseI recently read a series of posts about the title of this blog post.  In all truth, I hadn’t really thought about it or had the issue come up.  Here’s what happened.

A person died with an estate where the decedent left a handwritten Will.  He has a “common law wife” of 30 years.  They were married in New York state.  The common law wife says they were married by a Rabbi in a traditional Jewish service but not in a civil service.  Is she arguably his wife and a class A beneficiary or a mere class D beneficiary for purposes of New Jersey death tax?

The decedent’s Last Will leaves his “spouse” one-third of his estate with two-thirds going to their two children (class A beneficiaries).  If the wife is a class D beneficiary, then the inheritance tax would be paid from her share of her estate.  I am basing this on the estate tax apportionment statute and Hale v. Leeds, 28 N.J. 277 (1958).

If she’s a common law wife, she’s a wife.  A common law marriage is a marriage just like a marriage with a ceremony.  If they entered into a common law marriage in New Jersey before December 1, 1939, they were still married.  N.J.S.A. § 37:1-10: http://law.justia.com/codes/new-jersey/2013/title-37/section-37-1-10.  If they entered into a common law marriage in another state at a time when it was valid in that state and they moved to New Jersey, they were still married.

While New Jersey now requires a license in addition to a ceremony, if they were married in a ceremony in a state where a marriage with a ceremony but no license is valid, and they moved to New Jersey, they were still married.  For example, in New York, a marriage with a ceremony but no license is valid.

Contact me personally today to discuss your New Jersey estate administration 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 Estate Administration and Probate Law Attorney

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Widow in Second Marriage Has Legal Rights to Deceased Spouse’s Estate

widow in second marriageA client’s dad was in a second marriage when he died recently.  The couple did not have a prenuptial or postnuptial agreement.  Dad always told the kids not to worry; they were protected, because he had signed a revocable living trust and pourover last will leaving everything to his kids.  The stepmother, however, says she’s entitled to the house and much more.  She threatens to sue if the family doesn’t agree.  Does she have a legal leg to stand on?

Your father may have been well-intentioned, but he was wrong on the facts.  Without a prenuptial or postnuptial agreement, the marriage gives his widow many rights to his estate.  Notwithstanding the trust provisions, she may have the right to live in the marital property or to force the sale and get a portion of the proceeds.  Beyond that, she is entitled to a percentage of all probate assets, and all non-probatable assets – for example, an IRA and any assets in the trust.

The stepparent must assert her rights in a timely and proper fashion in order to retain them.  As your Dad’s children each must learn their rights immediately so each can take all necessary steps to protect their inheritance.

Contact me personally today to discuss your New Jersey probate litigation 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 Administration Attorney

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Distribute Probate Estate Funds Cautiously, But Don’t Be Unreasonable

estate assetsA client’s father’s estate is in probate.  His son is the personal representative.  Dad’s will leaves everything to his two sons (brothers) to share equally.  One of the brothers claim they need money now, and they’re pushing the executor to distribute the funds to them now, even though the estate isn’t settled.  He has assured the estate’s representative he will give back the money if it’s needed to pay estate’s debts.  Can and/or should this request be granted?

Unless the estate is small and/or family members are in total agreement, executors should be working with a probate attorney who can advise them before disbursing estate assets.  I would be cautious but reasonable about distributing funds before the debts are settled, and a final accounting is done.  As Personal Representative, a person has legal obligations and must follow certain protocols.  Known creditors must be notified, possible creditors alerted, tax returns filed.  If you distribute the proceeds now and subsequently the estate lacks funds to pay debts, the estate representative can be held personally liable.  And notwithstanding a beneficiary’s assurances and good intentions, there’s a chance they may not give back the funds.  In fact, they may not even have the funds to give back at that point.

That said, if the assets in the estate are significant and you’re comfortable doing it, you could consider making a partial distribution to all three beneficiaries, leaving sufficient cash reserves.  I generally endorse this approach.

Tell your brothers your dad entrusted you to handle his affairs properly, and that is what you will do.

Contact me personally today to discuss your New Jersey probate administration 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 Administration Attorney

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If You Have a Trust, Do You Also Need a Last Will?

Last Will and TrustIf you have a living trust in place, why would a person need a will?  The answer straightforward :  You need a last will to address what is to be done with any asset that you may have unintentionally left out of your living trust.  Some examples of how this could happen:

  1. You buy property, (say a house), then die or become incapacitated before you can transfer the property into your trust.
  2. You co-own a bank account with someone else with rights of survivorship (say a child). The co-owner predeceases you and you forget to name a new co-owner.
  3. Your credit card company returns money to you for a trip that was canceled because of your death and it needs to be deposited.

If an asset is not retitled and placed into your trust and has no co-owner or death beneficiary, it passes according to New Jersey intestacy laws, not according to the terms of your trust.  Thus, it could end up going to someone you don’t want to get it.

A pour-over will remedies the problem.  It directs any asset without a death beneficiary or co-owner that is not in your trust to be “poured over” into your living trust.  Although that asset will have to go to probate, at least it will eventually end up in your trust and go to the beneficiary or beneficiaries that you named in your trust, not to the people the law says must be supplemented with a pour-over will.

Contact me personally today to discuss your New Jersey estate planning 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 Estate Planning Attorney

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Adult Estranged Child Not Entitled to Anything From Parent’s Estate

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

Adult Estranged Child A client’s late mother and daughter were estranged for years, but she was still shocked to learn mom cut her out of her will and gave her brother everything.  The client thinks he poisoned her mind against his sister.  Is this legal?  Can the daughter sue for her share of mom’s estate?

Here’s the Answer

Probably not.  A parent is not legally obligated to leave anything to an adult child.  Moreover, challenging a will is no small task.  You must have a legally sound reason, which can include one or more of the following:

Undue influence:  Was your mother subjected to coercion to make out her will this way?  Was it your brother’s idea?  Did he select her lawyer, or drive her to the office, or remain in the room during her consultation?

Lack of testamentary capacity:  Did your mother have the mental ability and memory capacity to understand what she was doing when she decided to exclude her daughter from the estate?

Fraud:  Fraud can take many forms.  Was she told that the papers she was signing were something else other than her will?  Did she leave her daughter out because she was told something untrue?

In my estate planning practice, I find that a child who is cut out often gets what they put into the relationship with the parent.  Obviously, I do not know what caused the client and the mother to be estranged.  In any event, if she wants to proceed, she must discuss the issue with an experienced probate litigation attorney to be confident with the outcome.

Contact me personally today to discuss your New Jersey probate estate litigation 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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