Recently, nj.com published an article that asked a very timely question: “Do you need a will because of coronavirus?” The reality is that, even if we delete the qualifier “because of coronavirus,” the answer is almost always a vociferous ”yes!” Whether there’s an ongoing pandemic or not, you need a will or trust. Whether you are in compromised health or not, you need a will or trust. Whatever your situation or the world’s situation, it is extremely likely that, if you don’t already have one, you need a will or a trust, and should reach out to an experienced Hoboken estate planning attorney without delay about your goals and needs.

In the article, the author took a look at a couple from Wall in their mid 50s. The couple had no children, but did have some clear estate planning goals, including that they wanted their assets to go to their nieces and nephews after they died. They had not given much thought to estate planning prior to the pandemic, and had created neither wills nor a trust, according to the article.

The article gives readers much food for thought. For one thing, the article touched upon the concern that many who are motivated to obtain a will or trust may be feeling right now; which is, can I still get a will or trust with the current restrictions in place?

The answer is yes, you can! Depending on your circumstances, there may be multiple ways to consult and communicate with your attorney, so that your attorney can give you the advice you need, and you can give your attorney the information he needs to provide the best advice and the most customized estate planning documents. Those may include socially distant in-person meetings, telephone consultations or perhaps consultation by videoconference. Even with the limitations COVID-19 has created, there’s still a way to work with your attorney and get the documents you need.

When it comes time to sign those documents, there are also ways to get that done, as well. These documents need to be notarized but, fortunately here in New Jersey, your documents can be notarized remotely. Back in April, Governor Phil Murphy signed into law a bill that permits notaries to administer oaths and notarize documents remotely.

Intestacy: the risky gamble you take when you leave no will or trust

Another issue that this Wall couple’s case highlights is the importance of getting a will or trust when you have estate planning goals that differ from simply “everything to my spouse and kids.” This Wall couple desired that, after they both passed, their wealth would transfer to their nieces and nephews. But if they both died in their current state of having no will or trust, would that happen?

Probably not. That’s because of the intestate laws in New Jersey, which is the body of law that says what happens when you die with no will or trust. This couple is in their 50s. It’s quite possible one or both have living parents. If they both died suddenly, say from a tragic accident or COVID-19, the intestate laws would search first for surviving children or a spouse. As there would be none in this couple’s circumstance, the next people in line to receive the assets are surviving parents, not surviving nieces and nephews.

If the parents were dead, the intestate laws would next look for surviving siblings to distribute the estate. While some of those siblings are, in this case, the parents of the nieces and nephews whom the couple wanted to have their assets, some perhaps are not. All of those siblings would be entitled to an equal share of the deceased’s assets, whether or not they were the parents of the couple’s beloved nieces and nephews. Even those siblings who were the parents of the nieces and nephews would be under no legal obligation to transmit one cent of the assets to their children. In other words, the intestate laws would almost certainly not do what this couple wanted.

So, the question was, “Do you need a will because of coronavirus?” And the answer is, “No. You need a will (or trust) because you have loved ones you care about and you care what happens to your wealth after you’re gone.” Pandemic or no, this is reason enough for a will or trust. To get the thoughtful advice and diligent legal representation you need, look to knowledgeable Hoboken estate planning attorney Frank Marciano, who has many years of helping people from around New Jersey meet their estate planning needs. To set up a consultation, contact the office online or call 201.656.1000.

The post Considering Getting a Will or Trust in New Jersey? Don’t Let the Pandemic Slow You Down appeared first on Hoboken Family Law Blog.

One of the things about which the law is abundantly clear is that a parent has a legal obligation to support their minor children. What is not always so clear, however, is exactly how that support should be calculated. Sometimes, parents may try to dodge paying child support (or enhance the amount of child support they receive) by purposefully reducing their workload… or by not working at all. When they do, the law has a solution for that — something called “imputed income.” If your child support case involves an issue of imputed income – whether that income is to be imputed to you or to your child’s other parent – you need an experienced Hoboken family law attorney on your side to handle all of the legal and factual intricacies involved with winning an argument about imputed income.

Generally speaking, child support is calculated using the parents’ actual incomes and the child support “guidelines,” which are set by court rule. Sometimes, though, actual incomes won’t yield a fair outcome. If, for example, a father who is a litigation attorney freely leaves his Bergen County law practice to take a job teaching surfing lessons on Long Beach Island, then the law may look at that parent and say he is “voluntarily underemployed.” When that happens, the court can impute income to that parent at the level he was earning before the job change.

In a scenario like that, the court may calculate the father’s support using, instead of the sum the father actually earned from his teaching job, a figure equal to what father earned his last year as an attorney. The same thing may happen when a parent decides to stop working completely, which is called “voluntary unemployment.”

Most times, though, cases of voluntary underemployment are not as obvious as the hypothetical parent created above, with a recent case from Essex County (Superior Court Chancery Division Case No. FD-2392-07) serving as a good example.

In that case, both the mom, R.F., and the dad, D.C., were police officers. When the son was an early adolescent, the mother went to court seeking an increase in the father’s child support obligation. As part of that case, the father argued that the mother was voluntarily underemployed and that the court should impute income to her.

What was the basis for the father’s claim? Allegedly, the mother’s job offered her opportunities to work overtime, but she did not accept those overtime assignments.

A failure to work overtime is not always voluntary underemployment

That, according to the father, made the mother voluntarily underemployed. The father, however, was not successful in this argument. That was because, before a judge can impute any amount of income to a parent, that judge must first rule that that parent was, in fact, voluntarily underemployed or unemployed.

The court in this mother’s case decided she was not voluntarily underemployed. The judge, in making that ruling, explained that proof that a parent failed to work all the overtime that was available is not, by itself, enough evidence to trigger an imputed income. Instead, the law also requires an analysis of that parent’s “past practices” in order to determine whether or not to impute income. Based on R.F.’s previous work habits, there wasn’t proof that she was voluntarily underemployed, so there was no legal basis for imputing income to her.

What R.F.’s case should show you is that there are a lot of things that are involved in an imputed income child support case – the law, the facts, the evidence… and more. You need someone who understands all of that, and has experience dealing with (and winning) these disputes. For the effective legal representation you deserve, reach out to Hoboken family law attorney Frank Marciano, where you can confidently count on getting the helpful advice and the diligent advocacy you need. To set up a consultation, contact the office online or call 201.656.1000.

The post What is ‘Imputed Income’ and What Impact Can It Have on My Child Support Case in New Jersey? appeared first on Hoboken Family Law Blog.

When people think of a divorce, they often think of a process that is highly combative and highly stressful. For many divorcing couples, there can be a better way than an extremely contentious adversarial process. Using mediation may allow you and your soon-to-be ex-spouse to work together in an emotionally healthier way to reach a collaborative solution that often proves to be more lasting than solutions arrived at through contested litigation. Even if you decide to go the mediation route, you still will need legal services from a knowledgeable Hoboken mediation attorney, in order to be sure you are prepared for your mediation hearing, and also to be sure you are getting a mediation settlement agreement that accurately reflects the solutions you and your spouse reached in the hearing.

Very recently, nj.com’s consumer affairs column touched on divorce mediation. The information is timely because the first quarter of any year is one of the most popular times for couples to begin pursuing a divorce.

The information is useful because not all divorcing New Jersey couples may know that there are alternatives to going through a prolonged, stressful and costly adversarial process in order to arrive at closure. Some people may see that and think… I know about uncontested divorce in New Jersey, but that’s just for divorcing couples who agree on everything, right? My spouse and I are definitely not in that situation, so what other options do we have?

Good-faith cooperation between spouses is essential

As the column highlights, mediation may be a great option for couples who have disputed issues they still need to iron out, but want to reach those solutions in a collaborative, not adversarial, way. In mediation, your mediator generally is someone who has past work history as a lawyer or a judge, according to nj.com. The process can help many couples because it is often less expensive, and it often feels less contentious and combative than litigating in court.

In order to use this option, both spouses need to agree to partake in the mediation and make a legitimate effort to negotiate in good faith working toward a mediated solution. Another thing that both spouses must do, in order for mediation to have a chance for success, is to make full and fair disclosures of all their financial information. If the mediator doesn’t have all the information, he/she can’t possibly help the spouses determine what is fair.

You also need to understand what the mediator does and does not do. The mediator is there to facilitate reaching a solution upon which both spouses can agree. The mediator is not there to give you legal advice, so you should be sure to talk to a knowledgeable Hoboken family law attorney, who can give you the advice you need, before you go into your mediation.

Once you and your spouse have agreed to pursue mediation, you’ve taken a massive step toward getting your divorce. While it’s a massive step, it’s not the only step you need to take. Both before you go into the mediation and after the mediation is over, you need legal advice that you can count on. This can include preparing you for the mediation itself and then helping you finalize your mediation agreement. For that kind of strong advice and counsel in a contested or uncontested divorce, look to experienced Hoboken family law attorney Frank Marciano. Attorney Marciano has been aiding families for many years to achieve successful results in their family law cases, whether that’s through mediation or through the litigation process. To set up a consultation, contact the office online or call 201.656.1000.

The post How Mediation May Be a Positive Step Forward in Getting Your New Jersey Divorce appeared first on Hoboken Family Law Blog.

When you’ve decided that you are ready to start estate planning, it is important to choose carefully. You need someone to listen to your circumstances, needs and goals, to provide you with clear, understandable advice about how best to achieve your objectives, and then to provide you with the legal documents needed to meet your goals and distribute your property according to your wishes.

Amidst the countless New Jersey estate planning attorneys providing that kind of effective legal representation every day, there is also a significant risk to citizens – particularly seniors – from less scrupulous people. A case that came before the Appellate Division court (Case No. A-4675-16T3), and was earlier reported upon by nj.com, laid out a scenario that is common. It started with a representative of an “estate planning” entity coming to the senior’s home. This “estate planner” was a salesperson who persuaded the senior to sign up for estate planning services, which consisted of a living trust and certain other legal documents.

The saleswoman in the case completed an information form and transmitted it to an attorney. The attorney conducted a brief (eight minute) consultation by telephone and then drafted the trust and other documents. After that, the saleswoman returned to the home with the client’s legal documents in order to notarize them. While she was there, though, she also invested several hundred thousand dollars of the client’s money in two annuities that she was authorized to sell. The $222,000 sum represented nearly half of all of the client’s assets outside the value of her home.

This situation is far from unique. Frequently, if an attorney is involved at all, he/she is involved only on a minuscule level. The ultimate goal often is for the salesperson to return to the home and, while notarizing the trust and other legal documents, persuade the client to move most or all of her assets into certain insurance or financial products that often generate very large commissions for the salesperson and his/her supervisors.

Living trusts are not the problem; misusing them is

It is important to recognize what this does and does not mean. You may see certain websites that seem to say that living trusts are bad or are not useful. This isn’t true. Living trusts are wonderful legal tools that have the potential, when properly used, to benefit a lot of New Jerseyans very substantially.

The problem isn’t the tool; the problem is one of having the wrong tool to do a particular job. If someone sells you channel lock pliers to turn a screw, was the problem the tool or the bad advice you got from someone who gets paid specifically to sell channel lock pliers?

Additionally, not everyone traveling to a senior’s home who discusses planning needs is a “scammer.” There are highly ethical salespeople in the insurance and financial services industries who provide valuable services to their clients, and may also help their clients when it comes to getting in touch with a capable New Jersey attorney who can help the client with estate planning. Regrettably, some people, though, are more focused on getting paid than anything else.

When it’s time for estate planning, what you need is someone who is a client-focused and experienced legal professional who is devoted to taking the unique facts of your situation and giving you the personalized plan you need. What you leave behind for your loved ones is important enough that it deserves a team of professionals whose sole focus is meeting your legal needs. Reach out to Hoboken estate planning attorney Frank Marciano and the team at the Law Office of Frank Marciano to get exactly that kind of effective and reliable service in accomplishing your estate planning goals. To set up a consultation, contact the office online or call 201.656.1000.

The post Some Useful Information About Living Trusts and How The Right Estate Planning Attorney in New Jersey Can Help You appeared first on Hoboken Family Law Blog.

A few years ago, the New York Times published an article entitled, “Aging Parents With Lots of Stuff and Children Who Don’t Want It.” The topic is an issue that, if not uniquely modern, is certain something happening with increased frequency lately. The cold reality is that, just because you value or cherish a particular asset, that doesn’t mean your children will. To avoid your things going to people who don’t need and don’t want them, you need a detailed will or living trust to guide the distribution of your assets after your death, and the right Hoboken estate planning attorney to help you achieve your goals.

More recently, nj.com published a letter from a person who had that kind of unfortunate estate planning problem. The author’s father had recently died with no will or trust. When you die with no will, there is a state statute that will guide how your assets are distributed.

In this son/daughter’s case, the intestate process had resulted in him/her receiving the father’s timeshare. There are various ways this could have happened. For example, this could have been the result if the father was a widower and the writer was the father’s only surviving child, as the law would have distributed all the father’s probate assets to the child.

There was a major problem, though: the child didn’t want the timeshare… at all. Fortunately, this child had an option available under the law. The law allows you to do something called “disclaim.” When you do that, you turn in a form to the court and, if the form is filled out correctly and turned in on time, then the asset you “disclaimed” passes as if you had died before the deceased.

A knowledgeable New Jersey attorney can be very helpful here because, if you don’t file correctly or on time, then you may be legally declared the owner of the unwanted asset and “on the hook” for the costs and expenses associated with it. Disclaiming an asset (or assets,) by the way, can be absolutely essential if you are receiving needs-based benefits like Medicaid. An unexpected inheritance can potentially trigger a disqualification for continued receipt of benefits, but a valid disclaimer can avoid such a disqualification.

Your loved ones and the lovers of your stuff may not be the same people

This deceased father probably never considered the possibility that the any of the assets he left behind would be a burden, not a benefit, to his family. However, this can – and does — happen. Maybe your assets include a house full of mid-century furniture and your sole survivor is a child who is staunchly devoted to modern design… or perhaps you have assets that include a massive collection of 20th Century framed art and your sole survivor is a sibling who’s embraced “tiny house” living. By creating no will or trust, you can leave your cherished assets in the hands of people who wished they didn’t own them.

A properly set up will or living trust can avoid this pitfall, allowing you to help (and not accidentally hinder) your closest loved ones. Your will’s specific bequests can also ensure that your cherished collections and other things end up in the hands of people who will appreciate and enjoy them. To make sure that your estate distribution is “done right,” and will benefit both your loved ones and those who share you taste in furniture, art, coins or Beanie Babies, talk to experienced Hoboken estate planning attorney Frank Marciano, who has many years of handling all kinds of estates, including ones like yours. To set up a consultation, contact the office online or call 201.656.1000.

The post A Well-Written New Jersey Will or Living Trust Can Make Sure You’re Benefiting, Not Burdening, Your Loved Ones With the Assets You Leave Behind appeared first on Hoboken Family Law Blog.

Businesspeople understand that, when they prepare to sign a commercial contract, they should proceed with great care and caution, as there may be millions of dollars on the line in the fine print of that document. Even if your settlement agreement in your divorce or child support case doesn’t implicate millions of dollars, it is nevertheless just as important and impactful to you (if not more so,) which means that you should take utmost care to protect your financial situation by making sure you are armed with the knowledge you need. That definitely includes advice and counsel from a skilled Hoboken family law attorney.

A good attorney, for example, can potentially save you from the damaging impacts of an incomplete agreement. A case that started in nearby Bergen County is a good example. The couple, A.C. and J.C., married in 1998, had a daughter in 2000 and divorced in 2007. The spouses agreed that the father would pay 100% of the costs of the daughter’s college expenses, up to $30,000 per year, but would provide no other support after the daughter turned 18.

One of the key factors that fueled the parents’ agreeing to these terms was that the daughter planned to attend the Fashion Institute of Technology in New York City and live on campus. The cost of tuition, room and board, fees and books at FIT in 2016 was just slightly more than $30,000 per year.

Sometimes, it is necessary to incorporate certain assumptions into a contract. When that’s true, though, it is also very important to include contingency provisions dictating what will happen if the assumption(s) don’t come to pass. These contingencies can provide invaluable safeguards against unintended consequences that flow from an assumption failing.

In A.C. and J.C.’s case, their 2016 agreement assumed their daughter would be an on-campus student at FIT and it had nothing dictating any sort of alternate result if that plan changed. Of course, high school students’ college plans are often fluid. By the time this daughter graduated high school, she had chosen to enroll at Bergen Community College and live at home with mom. The cost of her tuition, fees and books at BCC was around $8,000. The father paid the $8,000 which, according to the courts, was all that the 2016 agreement required him to pay.

The mother now bore 100% of the financial obligation for the daughter’s housing, food, etc. She probably assumed that, by the fall of 2018, she’d be bearing nearly 0% of the financial burden of the daughter’s housing and board, as she assumed the daughter would be living in a dorm and eating at the school cafeteria. Because of the way that the couple structured their 2016 agreement, though, there was no recourse for the mother in the event the daughter remained at home as a commuter student.

The mother had no legal counsel and it may have cost her greatly

Another important lesson one can take from this case is the importance of good legal counsel. While the mother had the opportunity to consult an attorney before signing the 2016 agreement, she had not actually done so. When she later tried to get the court to modify the terms, she argued that “she just had surgery, she was anxious and heavily medicated, and she did not have an attorney to explain the nature of the agreement.” That argument did not succeed.

Heavy drugs and high stress can definitely diminish your mental acumen, but even when functioning at peak ability, you probably still won’t be able to spot all the issues and potential pitfalls of an agreement the way a skilled family law attorney would. An attorney, for example, may have advocated for an additional term that called for some form of additional support from the father if the daughter remained in the mother’s home as a commuter student rather than moving into a dorm as an on-campus student.

A seasoned legal pro can help save you from many of the subtle but serious pitfalls that would otherwise entrap you when you negotiate a child support agreement on your own. To make sure that you are properly protected, talk to skilled Hoboken family law attorney Frank Marciano. Attorney Marciano and his team have many years of helping parents and spouses deal with child support, divorce and a host of other family law issues. To set up a consultation, contact the office online or call 201.656.1000.

The post Agatha Christie Said That ‘Assumptions Are Dangerous Things’… That’s True in Mystery Novels and in New Jersey Family Law Settlement Agreements appeared first on Hoboken Family Law Blog.

Obtaining a legally recognized name change is important to anyone seeking such action from the legal system but, for some folks, name changes are especially important. For those who seek to make name changes, the legal process in New Jersey is designed to approve most requests. Even though that’s true, it is still very important to be sure you are going about it the right way, so that you can make sure your change will be approved and approval will be achieved as efficiently and stress-free as possible. To ensure this, be sure to contact a knowledgeable Hoboken family law attorney about your situation.

One group for whom a swift and efficient name change is especially important is trans people. Recently, a group of transgender federal inmates filed a lawsuit in Texas after authorities there refused to allow the trans women to change their names legally, according to news reports. Forcing a trans person to use their “deadname” is something so traumatizing as to amount to “psychological torture,” according to the inmates’ attorney.

Obtaining full legal recognition of a new name is also a very important goal for many immigrants. While trans people seek to live their lives free of the torture inflicted by having to use their deadname, immigrants often seek a name change as part of the process of cultural assimilation, helping to enhance their lives both personally and professionally.

Here in New Jersey, courts have made it very clear what the standard is for getting a name change. There are actually very few names you can’t use and circumstances when you can’t change your name (or the name of your minor child.)

Immigrants may pursue legal name changes even if they’re not citizens

For example, you don’t have to be a U.S. citizen to obtain legal recognition of a changed name. Back in 2012, the Appellate Division court overturned a trial judge’s ruling that had denied a father’s request to change his daughter’s first name from “Honghong” to “Michelle.” The daughter was a Chinese citizen who attended school in North Jersey with relatively few children with “foreign” sounding names. Even children of Asian ancestry tended to have names like “Angela,” “Tiffany,” “Brian,” “George” and “Alexander.”

In that case, the appeals court explained that you cannot change your name or your child’s name if you’re doing it as part of a crime or some sort of fraud, and that a judge can reject your request if your requested new name is obscene. Beyond those things, though, there are very few valid grounds under which a court can reject your name change, as long as you don’t have a criminal record.

Citizenship is not one of those valid bases. Back in 1985, an appeals court ruling allowed a documented alien from India to change her last name and the last name of her daughters to “Gupta” because Gupta was much easier for Americans to say and spell than their original last name was. In that ruling, the court said that most “immigrants enter the United States with some measure of confidence that their lives will be better in our great country. To be fettered by an unwanted name would substantially interfere with [the] ability to experience the legitimate blessings of freedom.” The same reasoning supported the Chinese father’s action to change the daughter’s first name to the English-sounding “Michelle.”

A judge’s individual philosophies, and even state law’s public policies, may not be enough to stop the name change you want. Back in 2001, years before New Jersey recognized civil unions or full marriage equality, a court concluded that a woman was free to change her last name to match the last name of her lesbian partner. Many years before that, a court ruled that a person could take a new name that was “traditionally” associated with the opposite gender, as long as no fraud was involved.

Even though there are few legal grounds for rejecting a name change, there is still a specific procedural process for getting that change approved. Whether your reason is because you’re trans, you’re an immigrant or something else, you obviously want your name legally recognized as quickly and painlessly as possible. Talk to knowledgeable Hoboken family law attorney Frank Marciano. Attorney Marciano, backed by his experienced team, has the extensive practical experience to help you achieve your goals. To set up a consultation, contact the office online or call 201.656.1000.

The post The Importance of Getting Legal Recognition of a Name Change in New Jersey, Especially For Some Groups appeared first on Hoboken Family Law Blog.

Each family and family dynamic is unique in its own way. Yours may be a blended family, may have people who are not related by blood but definitely are “family,” or may have people who are legal kin but aren’t really part of the family. Any of these scenarios is a good reason to make sure you consult an experienced Hoboken estate planning attorney without delay. The state’s laws that govern what happen to your assets if you die with no will or trust probably won’t do what you want. With the right will or trust, you can make sure that the legacy you leave behind will go to the people you want.

This need to engage in careful estate planning is especially important if you have ongoing financial obligations that are governed by contracts, like a child support agreement. The estate of a Monmouth County man is a good example. K.O. was the father of one son, born to R.L. in August 2000. K.O. also had a daughter, S.O., from a different relationship.

The father and the son’s mother never married, but they did work out a child support agreement in 2008 in New York. That document said that the father would (1) pay $3,000 per month in child support until the son turned 21 or was “earlier emancipated,” (2) would pay $7,500 annually into a college fund for the son and (3) would also cover the son’s child care costs and unreimbursed medical expenses.

K.O. had amassed several million dollars of wealth. One year before he died unexpectedly in 2014, he created a New Jersey will. That will gave the daughter $5 million plus one half of his residuary estate. He also set up a $50,000 trust to provide for the care of his dog for the remainder of her lifetime. He specifically and explicitly left the son nothing in his will.

You usually can disinherit your child, however…

Generally, you can disinherit a child, whether that child is a minor or an adult. The law of wills says that you can disinherit almost anyone you want… except you typically cannot disinherit your surviving spouse. (If a legal spouse or domestic partner survives you then, unless the two of you have a valid prenuptial agreement that says otherwise, then he/she can either take what you left him/her in your will or can reject that and choose what the law calls the spousal “elective” share, which means that he/she gets 1/3 of your estate.)

To disinherit a child, though, you must make a proper and express statement in your will that you are disinheriting that child. If you leave that child nothing, but do so simply by not mentioning him/her at all in your will, then that child may be able to go to court and win a case that says that he/she qualifies as an “omitted child.” If he/she wins, then that child is entitled to the portion of your estate that he/she would have gotten if you had died with no will at all.

In K.O.’s case, the son’s mother sued the estate for breach of contract and the estate eventually settled with the son’s mother, meaning that, ultimately, the son effectively did get a portion of the father’s estate. If the child you’re seeking to disinherit is a minor child and the subject of a valid child support agreement or child support court order, that may prevent you from leaving them nothing, as K.O.’s case highlights. If you have people in your life the law says you cannot disinherit, it is  important to recognize these, and plan for them accordingly.

For some people, their estate planning goals may be as simple as “everything to my spouse and if he/she dies before me, then everything to my children in equal shares,” but that’s rare. Most people today seek to engage in more customization in their wills and trusts. To make sure that your assets go to the people you want (and not to those you don’t,) reach out to experienced Hoboken estate planning attorney Frank Marciano. Our office is here to help you make your estate planning goals a reality. To set up a consultation, contact the office online or call 201.656.1000.

The post Disinheriting a Child or a Spouse in New Jersey appeared first on Hoboken Family Law Blog.

You’ve probably heard the phrase “get it in writing,” which is a commonly used phrase in the world of business. That advice also can apply to estate planning. The best way to make sure that your goals for your estate become reality after you die is to put them on paper while you’re alive. To make sure you have a well-written estate plan that will achieve the outcome you want, be sure to retain the services of a knowledgeable Hoboken estate planning attorney, who can show you the best way to get to your desired goal.

A case from Middlesex County shows the pitfalls that can occur when you don’t put anything in writing. R.F. was a man who died with no will or trust. His only legal heir was a brother who lived on Long Island. R.F. did have a stepson, but he never adopted the stepson, so the stepson was not a legal heir.

Because R.F. left behind no will or trust, all of his assets were distributed by what’s called the “intestacy” statutes. Those are laws that look to identify the closest class of heirs at law, and to distribute the deceased’s assets to them. In this case, that meant a distribution of 100% of the estate to the brother on Long Island.

There are lots of ways that leaving the distribution of your assets up to intestacy can go very wrong. For one thing, if you amassed substantial wealth but left behind no surviving spouse and no known children, you potentially can create a “feeding frenzy” of people claiming to be your long-lost “love child” or half-sibling from way back when. A version of this happened when rock-n-roll superstar Prince died. He left behind no written estate plan, no surviving spouse, no surviving parents and no known living children, raising significant questions about how his millions and his massive catalog of music should be distributed. Many, many people intervened in the probate case, alleging that they were children or half-siblings of the late musician.

Desiring to include someone in your estate who is not legally related to you — or is not related very closely – is another scenario where things easily can go wrong under the intestate statutes. In the days before civil unions, domestic partnerships and marriage equality, this was a very big deal for same-sex couples, as dying intestate would often have the result of leaving one’s partner with nothing from one’s estate. The same can be true if you have a cherished friend or dear caretaker whom you want to leave something.

In R.F.’s case, the 100% distribution to the brother remained in place even after a challenge by the stepson. The stepson argued unsuccessfully that he should be the sole heir of the estate. His evidence was that his mother married R.F. when he was three, that R.F. was the only father he had ever known and that the only reason R.F. never legally adopted him was that the stepson’s biological father refused to acquiesce to the adoption.

This was all potentially important evidence for what New Jersey law calls an “implied agreement to adopt.” If you can show that such an implied contract existed, then you can potentially be declared by the court to be the equivalent of a legally adopted child, which means being on the same legal footing as a biological child. For this stepson, that potentially could have meant going from receiving 0% of R.F.’s estate to getting everything.

Proving an implied agreement to adopt is very difficult, though. Because such claims are prone to fraud and “are easily fabricated,” there is an extremely high burden of proof required to establish this implied contract. R.F.’s stepson didn’t have the necessary level of proof and so his case failed.

A well-written will or trust could have made things much clearer

R.F.’s case is a cautionary tale about the pitfalls of leaving one’s asset distribution up to the state’s process of intestate succession. If his true goals were to include his stepson in his estate, then a will or trust could have avoided the regrettable outcome of a distribution that deviated from his wishes, which (if true) is what ended up happening. Even if the man actually wanted his brother to get everything, a will or trust could have made that objective clear and avoided the expense and delay caused by estate litigation.

Pretty much everyone can benefit from a properly drafted will or trust. Getting your goals on paper means greatly enhancing the odds that what you desire for the distribution of your assets will be what ultimately happens. For the best way to accomplish your goals, reach out to skilled Hoboken estate planning attorney Frank Marciano. Attorney Marciano and his team have years of experience helping families just like yours. To set up a consultation, contact the office online or call 201.656.1000.

The post Leaving the Distribution of Your Assets up to New Jersey’s Intestate Succession Process Can Potentially Cause Serious Problems appeared first on Hoboken Family Law Blog.

The coronavirus pandemic has created massive problems for people in all walks of life. That includes people who have lost someone and now must, in addition to everything else, undertake the process of probate, which has itself been rendered much more complicated by the new COVID-19-based safety requirements. To make sure you are handling the probate process correctly, even in this time of pandemic, look to a skilled Hoboken probate attorney to guide the way.

There’s some very good news for people in nearby Morris County. The Surrogate’s Office there recently created a set of “newly designed COVID-19 compliant probate rooms” and, in conjunction with the opening of those spaces, began accepting appointments for in-person probate in early October, insidernj.com reported. The county has also set up a “fully remote” probate option, which is scheduled to become available in November, according to insidernj.com’s report.

Here in Hudson County, in-person applications remain “suspended… until further notice.” The Hudson County Surrogate’s Office is offering services via telephone, fax, and regular mail, according to the Surrogate’s website.

When it comes to probate, you probably have lots of questions, even outside of the pandemic’s effects. Here is a quick “Q and A” to give you a bit more clarity about probate.

Q: What exactly is probate?

A: Generally speaking, probate — whether in New Jersey or elsewhere — is the legal process of distributing a deceased person’s assets after he/she dies, and making sure that those assets are distributed to the correct people.

Q: So… distributing assets according to what a will says, right?

A: Not always. Distributing assets according to a valid will is one probate situation, but it is not the only one. When a person dies with a will, that will must be presented to the Surrogate’s Court for the county where the deceased person lived. The court will analyze the will and determine if it is valid in New Jersey. If it is, then the deceased’s estate is considered to be a “testate estate” and the deceased’s assets will be distributed in the way that the will dictated.

However, even if a person dies in New Jersey with an invalid will or with no will at all, his/her assets are still distributed through probate; they just go through the process for “intestate estates.”

Q: How does the intestate estate process work?

A: By the terms of the state statutes. There is a special set of New Jersey statutes that dictate who gets the deceased’s wealth if the deceased died with no valid will. These laws generally will start by looking for a surviving spouse and/or surviving children.

For example, if you die with no will and you have children but no surviving spouse, your children get everything. If you have a surviving spouse and children all of whom are the descendants of you and your surviving spouse, your spouse gets everything. If you have a surviving spouse and children from other relationships/marriages, then your spouse gets a portion and your children from those other relationships get a portion.

If you have no surviving children or spouse, then the law looks to parents and siblings, then continues outward from there until a class of heir is found in which one or more people are living.

Q: Is a deceased person’s wealth always distributed through probate?

A: No. There are certain types of assets that may pass outside the probate process. Any asset that has a valid “transfer on death” or death beneficiary designation on it passes outside probate. For example, a life insurance policy generally has a death beneficiary on it and the proceeds (the “death benefit”) of that policy generally pass to the beneficiary without requiring any probate action. In New Jersey, stocks, bonds and brokerage accounts may also be held in “transfer on death” form, and pass outside probate as long there is a valid beneficiary named.

Q: Is that the only way assets can avoid probate in New Jersey?

A: No. There is also something called a revocable living trust that may help people who specifically want to avoid the probate process. This is a type of estate planning tool in which the creators (called the “trustors”) set up the trust during their lifetimes, transfer assets into the trust during their lifetimes and maintain management control of (including the power to sell) those trust assets during their lifetimes, assuming they have named themselves as initial trustees. The trust document also contains a section in which the trust’s creators state how their assets should be distributed after they die.

Then, after the creators have passed, the successor trustee (who is also named in the trust document) begins the process of distributing the assets in accordance with what the creators wrote in the trust document. In this way, all assets held by the trust can pass outside probate as long as they were properly transferred into the trust and there was a valid beneficiary named within the trust document.

These are just a few commonly asked questions about probate. Chances are, you probably have many more about probate and what it would mean for your family. Count on knowledgeable estate planning attorney Frank Marciano to provide you with the customized answers, in clear and easy-to-understand language, you need in response to your specific situation. To set up a consultation and find out how this office can help you, contact us online or call 201.656.1000.

The post Probate in New Jersey: A Brief ‘Q and A’ appeared first on Hoboken Family Law Blog.