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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New Jersey Medicaid Not Repaid From Third Party Trust

Recently, I met with new clients who are grandparents to many grandchildren, one of which is special needs.  I was asked if Medicaid will be able to take whatever funds are left over in the grandchild’s trust if he receives public benefits.  They want to create a special needs trust for their grandchild since he is not expected to live beyond 30 and is seriously disabled.  They are hoping any money left over at that time can be distributed to their other grandchildren and not taken by the government.

Let me be clear with my answer.  There will be no Medicaid payback required if you create, fund and establish a special needs trust.  In other words, you can fund this trust with your money (as well as that of anyone else who contributes to it).  With a loss in benefits to the grandchild, payback provisions for NJ Medicaid apply only to a first-party trust, one that is established with the beneficiary’s own money, in this case, the grandchild.

These grandparents can certainly set up the trust so that anything that remains in it when their grandchild is gone gets divided among their surviving grandchildren or anyone else of their choosing.  A special needs trust is somewhat complex so hire someone with experience in this area to make sure they accomplish what you wish.

Contact me personally today to discuss your New Jersey special needs 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 Special Needs Trust Attorney

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Should New Jersey’s Department of Motor Vehicles Be Alerted to An Aging Parent’s Unsafe Driving?

elderly driverMany clients want to avoid going to the DMV about their parent(s).  He or she may be mentally sharp, but their vision is deteriorating.  There are fresh dents on their car and he/she caused an accident just a few weeks ago.  They refuse to talk about their driving skills though, and neither will forgive themselves if he/she hurts someone else.  Is there a way to anonymously report their unsafe driving to the DMV?

I have had these discussions with many clients.  I have some clients who recognize that their driving skills are declining and voluntarily give up their car keys.  They are far and few in between though.  It’s emotionally tough to give up driving and touch getting around NJ without a car.

Before contacting the DMV, try talking to your parent again.  You can get tips on starting the conversation online.  Google “aging parents giving up driving”.

If talking doesn’t work and you truly believe that he or she is putting themselves and others in danger, you have no choice but to report his unsafe driving to the Department of Motor Vehicles.  You must supply your name with the report, but your identity will not be revealed to your father.  The DMV will then investigate the situation.  To report unsafe driving, visit the DMV website:  https://www.state.nj.us/mvc/drivertopics/reportconcern.htm

Life’s ending chapters are not easy to understand.  This blog topic is never easy for any family.

Contact me personally today to discuss your New Jersey elder care 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 Elder Care Attorney

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Medicaid Gifting Rules and the Annual Federal Gift Tax Exclusion Are Unrelated: Don’t Be Confused!

Medicaid giftingI’ve written numerous posts about Medicaid gifting and the misconceptions surrounding the annual gift tax exclusion rules. Generally, I’m asked the question whether New Jersey Medicaid looks at the gifts a person gives to his/her kids if the gift is valued under $15,000 each year. It’s the person’s understanding these gifts won’t have an impact on their qualifying for Medicaid benefits if they ever need a nursing home.

Beware! These folks are incorrect. They are confusing the Medicaid gifting rules and the annual exclusion for federal gift tax purposes. Let me explain.

The $15,000 referred to above is the annual federal estate tax/gift tax exclusion. That’s the amount that you may give away each year, to as many individuals as you wish, without diminishing the amount the federal government allows you to give away during your lifetime without any gift or estate tax consequences. Currently, the lifetime unified estate tax/gift tax exemption is over $11,000,000 per person.

The Medicaid eligibility issue is unrelated. When assessing eligibility for benefits, Medicaid will examine any transfers made for less than fair market value during the five (5) year look-back period. It does not matter if the gifts you have made are under or over $15,000. The transfers are totaled and a formula applied that determines how long you must wait to receive benefits (this assumes that you are eligible for benefits in all other respects). The current look-back period is five years preceding the date of application for benefits.

Contact me personally today to discuss your New Jersey special needs 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 Medicaid Attorney

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Becoming Guardian for an Elderly Father Should Be Last Resort

elderly fatherQuestions about how to go about becoming a parent’s legal guardian are asked every week.  Often by siblings who are at odds with other siblings over a parent’s care.

A child believes Dad needs assisted living and the others think he belongs at home where he is comfortable. He’s very frail but has his faculties. The sister won’t listen and Dad won’t comment because he doesn’t want to play favorites. Brother and sister are constantly fighting about this.

In this emotionally charged discussion motivated by genuine parental concern, either child could pursue becoming their father’s legal guardian, but I would only reluctantly recommend it. It’s an expensive process, would be traumatizing for everyone, and probably damage your relationship with the family. It also seems unnecessary for this situation.

Instead, try using a neutral third party to mediate your disagreement. That party could be a geriatric care manager, a psychologist, family and geriatric physician.  There are certified mediators in our community. Mediation will give everyone, your father included, the chance to speak candidly and civilly. Hopefully the dilemma can be resolved without going the guardianship route.

One other thought based on my many years of experience: Don’t dismiss out-of-hand the value of assisted living for your father, even though it is not his “home.” Assisted living can provide expanded opportunities for activity and socialization. That could benefit your father more than remaining in his familiar environment. Just something to think about.

Contact me personally today to discuss your New Jersey guardianship 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 Guardianship Attorney

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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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