By Fredrick P. Niemann, Esq. an Estate Administration and Probate Attorney
Here’s a quick post. Disclaimers are a popular and effective tax planning tool after the death of a person. It allows an estate to take advantage of the tax code. The New Jersey statute was amended about a half dozen or so years ago to allow disclaimers to be file beyond 9 months after death even if the disclaimer might not be a qualified disclaimer under Section 2518 of the IRC. It’s a big deal!
Contact me personally today to discuss your Estate Administration/ Probate matter. I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns. You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.
Archive for the ‘probate’ Category
TIME TO FILE DISCLAIMERS IN NEW JERSEY IS NOT LIMITED TO NINE MONTHS
Tuesday, December 6th, 2011Can Creditor’s make a Claim against Joint Account Assets in New Jersey after Death?
Wednesday, November 2nd, 2011By Fredrick P. Niemann, Esq., a New Jersey Probate Attorney
Recently a New Jersey intestate estate (death without a will or trust) passed under New Jersey law to the surviving spouse. The decedent owned several joint bank accounts with his wife. The decedent had quite a few debts, including credit card and medical bills. The question raised is whether non-probate assets are subject to creditor claims or if the estate can be deemed insolvent.
The answer may surprise you. Non probate assets are not immune from creditors against an estate of a deceased party to pay debts, taxes, and expenses of administration, if other assets of the estate are insufficient. A surviving party, P.O.D. payee, or beneficiary who receives payment from a joint-party account after the death of a deceased party shall be responsible to the extent necessary to discharge the claims and debts unpaid by the decedent’s estate. A proceeding in the Chancery Division of the New Jersey Supreme Court to assert this liability must be commenced no later than 2 years following the death of the decedent. Sums recovered by the estate representative are to be administered as part of the decedent’s estate.
If you have any questions regarding New Jersey Probate Law, please contact Fredrick P. Niemann, Esq. today. He can be reached at toll free 732-863-9900 or by email at fneimann@hnlawfirm.com. Mr. Niemann would be more than happy to answer any questions you may have.
ESTATE AND GIFT TAX RETURNS: WHAT ARE THE REQUIREMENTS: AVOIDING MISTAKES
Friday, October 28th, 2011By Fredrick P. Niemann, Esq. a New Jersey Estate Administration and Probate Lawyer
The Requirement of Filing Federal Gift Tax Returns – Under the tax code the general rules applicable to income tax returns apply to annual gift tax returns. That is, a 3-year statute of limitations applies to the initiation of an audit based on the value of the gift. The IRS has issued regulations describing substantiation requirements to ensure the protection of the statute of limitations for gift purposes. The IRS can challenge the substantiation or appraisal information on gift tax returns many years after the expiration of the statute of limitations under certain cases, mainly based on fraud. The IRS may challenge the gift value based on the adequacy of the substantiation provided with the initial return and will most likely occur when the donor’s estate is audited. Our recommendation at this time is that all records, such as valuation reports, bank records, and any other items substantiating a gift tax return, should be kept until the donor’s estate tax return is settled.
New Jersey and Federal Estate Tax Returns – The federal statute of limitations is, again, 3 years from the date the return is filed. However, in many cases, the federal estate tax return is extended by 5 months beyond the normal due date of 9 months following the date of the decedent’s income tax returns as long as the estate is open. These income tax returns will also have a 3-year statute of limitations. A good rule of thumb is to keep the estate records for 5 years after the decedent’s death or until a final closing agreement is reached with the IRS, if later.
If you have any questions regarding gift taxes, contact Fredrick P. Niemann, Esq. toll free at (888) 800-7442 or e-mail him at fniemann@hnlawfirm.com. He will be happy to assist you.
Palimony Promises in New Jersey must be in writing: Are there any exceptions?
Tuesday, July 26th, 2011By Fredrick P. Niemann, a New Jersey Probate Lawyer
Palimony is financial support provided from one unmarried person to another in exchange for the other taking care of them. Palimony is used in a relationship context, usually involving long-term relationships, where a couple lives together yet does not get married. In 2010, the New Jersey Courts held that the statute of frauds applies to palimony cases, meaning that all promises of palimony must be in writing or they will not be honored. Prior to 2010, the courts had allowed palimony clauses to be oral, meaning verbal agreements, leading to many cases in which an ex-boyfriend/girlfriend was able to recover palimony payments after the couple had broken up. Now that the Courts have applied the statute of frauds to palimony, a ex-partner from a non-marital relationship may no longer recover palimony from their ex if the arrangement is not written down. This means that if your ex-partner orally promised to pay you a sum of money every month in exchange for caring for them, the Courts will not honor this promise.
Fortunately, New Jersey Courts still allow other claims by a former partner from a non-marital relationship. Depending on the specifics of your case, other theories may allow you to recover the payments you were promised from your ex-partner. Theories such as breach of the covenant of good faith and fair dealing; constructive trust; partition; unjust enrichment; fraud-deceit-misrepresentation; promissory estoppel; interference with contractual/prospective economic advantage; conversion; and theft, as well as other claims may be available to you.
If you were promised palimony or support by an ex-partner from a non-marital relationship, please contact Fredrick P. Niemann, Esq. immediately to discuss the specifics of your case. Even if the promise was not written down, you may have alternative methods of recovery. Mr. Niemann can be contacted toll free at 855-376-5291 or emailed at fniemann@hnlawfirm.com. He looks forward to speaking to you.
Do You Have the Right Fiduciary for Your Estate?
Friday, July 10th, 2009Warning: Your Decision Does Matter
Fredrick P. Niemann, Esq., NJ Estate Plan Attorney
When creating an estate plan, especially in your will and/or trust, an important decision is who to name as your fiduciary. A fiduciary is a fancy legal term for the person who will take care of your property for you if you are unable to do it yourself, such as the executor of an estate, the trustee of a trust, or an attorney-in-fact under a power of attorney. Your first instinct might be to name one of your children as a fiduciary, but if you want to avoid conflict among your children, this might not be the best option.
When naming a fiduciary, it is important to be able to trust the individual, which is why people often name family members as fiduciaries. However problems can arise when a parent with two or more children names one child as a fiduciary. According to Fredrick P. Niemann, an attorney from Freehold, New Jersey, who spoke on the issue of family harmony at a recent estate planning seminar, a child is often not the best fiduciary for several reasons:
- It is hard for a child to be completely objective.
- Children often disagree over many things, including how long the estate should take to complete, the selling of assets, and the division of personal property.
- Children often don’t communicate with each other well.
An alternative is to hire a professional fiduciary. A professional fiduciary can be a bank or investment firm with trust administration experience with trust powers, a certified public accountant, or a trust company. A professional fiduciary will charge a fee, but the fee should be explained ahead of time. In addition, because a professional is experienced in managing money and property, your assets are more likely to increase under this person’s or institution’s guidance.
To ensure that your family has some input, you can include a provision that allows one or more family members to discharge the fiduciary if they feel the professional is not doing a good job. This will allow your family to make sure the fiduciary is performing properly without having the burden of acting as fiduciary.
For further information and advice in any estate planning matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.