Estate Attorney NJ

Estate Planning

 

What is Probate?

Probate is the process where a will of the deceased is confirmed as authentic and valid by the Surrogate’s Office in the County where the deceased resided. The named executor provided in the will is appointed to administer and settle the estate. Once the Surrogate has probated the will, then the administration of the estate can begin. All assets that were owned by the deceased must be legally transferred and distributed to the named beneficiaries in the will.

 

What happens if you die without a Will?

Intestate Succession is when no Will exists and real and personal property is not distributed according to the deceased’s wishes for example in their will. Rather, it is distributed according to the law of New Jersey. An administrator for the estate of the deceased must be appointed by the courts. The administrator must follow the New Jersey Intestacy Statutes in probating and distributing the estate.

In addition, if you have minor children and die without a will that designates a guardian, the state is given the right to designate whom their legal guardian will be.

 

Can I write a Will myself?

While there are probate laws that do allow handwritten wills to be probated, the wills must first meet the statutory requirements of a “holographic will.” Improperly drafted holographic wills often cause expensive probate litigation. You could do an “online” will however, it may not be enough to protect your family if there are underlying issues within the family and possible issues that could arise after you execute your will. The cost of having a will prepared by an attorney who is experienced in estate planning issues is minor compared to possible costs associated with an improperly and/or inadequately drafted will prepared without an attorney.

 

What is a Durable Power of Attorney for Assets?

A durable power of attorney is a legal document that allows another adult person to act on your behalf to manage your assets if you should become incapacitated. With this instrument, a spouse, friend or family member, called the Agent, can act on behalf of you, the Principal. A Power of Attorney may be limited to a single transaction or it can grant general powers that continue indefinitely. Most financial institutions will only accept a Power of Attorney if it was drafted within the last three years.

 

What is a Durable Power of Attorney for Health Care with HIPPA?

A durable power of attorney for Health Care with HIPPA is a legal document that allows another adult person to act on behalf of your health care needs and talk directly with medical professionals such as hospitals, doctors, nursing homes, insurance companies and billing companies if you should become incapacitated and unable to make decisions regarding your own health care. With this instrument, a spouse, friend or family member, called the Agent, can act on behalf of you, the Principal. A Power of Attorney for Health Care must contain the HIPPA Language required by Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d (“HIPAA”) which limits how your medical records are discussed and transmitted.

 

What is Living Will?

A Living Will, also known as an Advance Directive, is a legal document that takes effect when you no longer have the ability to make decisions about artificial means of life support. It is a critical document and it is highly recommended and ensures that the individual makes their own decisions regarding life support including use of a respirator, feeding tube, and CPR. It is advisable to create this document with yourself and an attorney that does not name a third party such as a spouse or a child. However, you should always have a durable Power of Attorney for Health Care if there are any inconsistencies or questions. In this document you direct the extent of treatment and care you wish to receive if you are unable to speak for yourself.

 

What is a Discretionary Living Trust?

A Discretionary Living Trust is a complete will substitute and in addition to possible tax benefits it offers flexibility and helps greatly with the organization and consolidation of your assets. This will make it easier for the administration of your estate when you pass on. If set up correctly, it is valid in every state and if you have real estate in multiple states you can avoid multiple probate proceedings. Either a single person or a married person can create a Living Trust. However, if you are married couple, the Discretionary Living Trust may also preserve the marital exemption to preserve estate taxes. This Trust allows the surviving spouse the discretionary right to minimize New Jersey Transfer Tax while maximizing the Federal Estate Exemption in effect at the time of death. It is a complicated document and should only be prepared by an attorney with expertise in Estate Planning.