E434 news Jan 22
2014 update Wills and Estate Planning Seminar materials
1. Federal Estate Tax exemption now permanently increased so no tax for
Estates under $5,340,000., and will
be adjusted annually for inflation. However, New Jersey taxes estates over
$675,000.
2. Gifts permitted
without Federal Estate & Gift tax was increased to $14,000 per person.
3. We
recommend Self- Proving Wills since witnesses often move or pass away
4. Non-formal
writings could be Wills under the New Probate Law
5. Undue influence: Recent cases can void Will signed under suspicious
circumstances
6. NJ Inheritance tax
7. Power of Attorney
8. Federal Health Privacy Law (HIPAA)
9. Competency required to sign a Will or Power of Attorney
1. Federal Estate Tax exemption is now
permanently increased so no tax for Estates under $$5,340,000.,, and will be adjusted annually for
inflation. However, New Jersey taxes estates over $675,000.
Federal
Exemption Amount for Non-Citizen Spouses is $145K up from $143K.
New Jersey has an Estate Tax on amounts over
$675,000. So, even if no Federal Estate
Tax due, the estate must still file a Federal Estate Tax Return, plus NJ Estate
Tax Return.
So,
for an unmarried or widowed person with assets of $1,000,000, there is No
Federal Estate Taxes, but the Estimated
State Estate Tax: $33,200.00 For
an unmarried or widowed person with assets of $1,500,000, estimated NJ
Estate Tax is over $60,000. The Federal
Tax rate on estates over $5,250,000 has been increased from 35% to 40%.
How to avoid NJ Estate Tax- hire an attorney
to set up a personal residence trust or irrevocable trust and have the assets
taken out of your name and put into a trust or given to children and
grandchildren in the trust. Minimum fees for trust are $3,000. This is probably
not something a non-attorney can do on their own. It is illegal for a
non-attorney to provide legal advice or prepare most legal documents.
2.
Gifts permitted without Federal Estate & Gift tax was increased to $14,000
per person.
However, the amount permitted for Medicaid
transfers is zero.
3. We recommend Self- Proving Wills since witnesses
often move or pass away
An old
New Jersey Probate law required one of the two witnesses to a Will to travel
and appear in the Surrogate’s office and sign an affidavit to certify they were
a witness. This often created problems when the witness was deceased, moved
away, or simply could not be located.
Some witnesses would require a $500 fee to simply sign a surrogate
paper. My Grandmother’s Will was not self- proving, and the witness to Will
extorted a $500 fee.
The New
Jersey Legislature later passed a law to create a type of Will called a
“Self-Proving Will.” In such a Will, the
person for whom the Will is made must sign.
Then two witnesses sign. Then the
attorney or notary must sign; with certain statutory language to indicate the
Will is self-proving. Beware of online
documents not prepared by an attorney
When done properly, the executor does not
have to locate any witnesses. This
usually saves time and money. If your
Will is not “self-proving” or if you are unsure, schedule an appointment with
an elder law attorney. Some law offices ignore the revised law, and fail to
prepare self proving Wills. Do not use a law office that follows old methods
and does not do a self-proving Will.
4. NJ SENATE Law No. 708 made a number of substantial changes to the
NJ Probate Law.
Non-formal writings could be Wills under
the Revised
provisions governing the administration of estates and trusts in New
Jersey. So make sure you have a Formal
Will drafted by an estate attorney.
The law
expanded situations where writings that are intended as Wills would be allowed,
but requires that the burden of proof on the proponent would be by clear and
convincing evidence. Possibly a Christmas card with handwritten notes could be
presented as a Will or Codicil.
To present a non-formal Will or writing
requires an expensive Complaint and Order to Show Cause to be filed in the
Superior Court, and a hearing in front of a Superior Court Judge.
Be careful; have a Will done properly by an
experienced attorney.
Beware of the “Elective share” rights of a
new spouse. Have a Prenuptial Agreement if entering into a 2nd
marriage
The
elective share provisions of the present Code has still not been changed
yet. Currently, the new spouse who is
not given money in a Will can challenge the terms of the Will. This is called
"electing against the Will by a spouse". A spouse could receive up to
1/3 of the estate, even if only married for 2 weeks. The spouse must file a Caveat
or lawsuit in Superior Court. We suggest
a formal prenuptial agreement in 2nd marriage situations.
A Testator now means both male and female
individuals, removing the term “Testatrix”. Will forms that say executrix
should not be used.
The law provides a statute of
limitations with respect to creditor claims against a decedent's estate. There
is no longer a need to publish a Notice Limiting Creditors.
5. NJ Supreme Court has held a Will could be void if signed under
suspicious circumstances
When there is a confidential
relationship coupled with suspicious circumstances, undue influence is presumed
and the burden of proof shifts to the Will proponent to overcome the presumption.
If
there is undue influence in making of Will and transfer by Deed of a house by
persons in Confidential relationship, this could subject those persons to
punitive damages in some instances, plus voiding of the Will. In the Matter
of the Estate of Madeleine Stockdale, Deceased 196 NJ 275 (2008)
A
grievance based upon undue influence may be sustained by showing that the
beneficiary had a confidential relationship with the party who established the
account. See Estate of DeFrank, ___ N.J. Super. ___,
___ (2013) (slip op. at 13). Accordingly,
if
the challenger can prove by a preponderance of the evidence that the survivor
had a confidential relationship with the donor who established the account,
there is a presumption of undue influence, which the surviving donee must rebut
by clear and convincing evidence.
[Estate
of Ostlund v. Ostlund, 391 N.J. Super.
390, 401 (App. Div. 2007).]
Although perhaps difficult to define,
the concept "encompasses all relationships 'whether legal, natural or
conventional in their origin, in which confidence is naturally inspired, or, in
fact, reasonably exists.’” Pascale v. Pascale, 113 N.J. 20,
34 (1988) (internal citation omitted). "And while family ties alone may
not qualify, parent-child relationships have been found to be among the most
typical of confidential relationships." DeFrank, supra,
slip op. at 13 (citing Ostlund, supra, 391N.J.
Super. at 401).
In the context of inter vivos gifts,
"a presumption of undue influence arises when the contestant proves that
the donee dominated the will of the donor or when a confidential relationship
exists between the donor and done." Pascale, supra,
113 N.J. at 30 (internal citations omitted). "Where
parties enjoy a relationship in which confidence is naturally inspired or
reasonably exists, the person who has gained an advantage due to that
confidence has the burden of proving that no undue influence was used to gain
that advantage," In re Estate of Penna,322 N.J. Super.
417, 423 (App. Div. 1999), and "the donee has the burden of
showing by clear and convincing evidence not only that 'no deception was
practiced therein, no undue influence used, and that all was fair, open and
voluntary, but that it was well understood.'" In re Estate of
Mosery, 349 N.J. Super.
515, 522-23 (App. Div. 2002) (citing In re Dodge, 50 N.J. 192,
227 (1967)).
The person receiving gifts and greater benefit had a
burden to show no deception was practiced and that all of the transactions were
fair, open and voluntary, and that they were well understood.
Wills should be prepared without undue
influence. No one other than the person who is signing the Will should be in
the room. We usually request the person who wants the Will to fill out the
interview form themselves.
6. NJ Inheritance tax
The
NJ Inheritance Tax Return instructions and NJ Estate Tax Forms were revised in
2011. Throw out old forms. Even if no
inheritance tax due, a Tax Waiver on a house must still be obtained and filed
if the house was not co-owned by the spouse.
7. Power of Attorney
Do not use a form
purchased online. A Power of Attorney should contain reference to the NJ
statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991,
c. 95 (c. 46:2B-11).
8. Federal Health Privacy Law (HIPAA)
The federal regulation known as the
Health Insurance Portability and
Accountability Act (HIPAA) was adopted regarding disclosure of
individually identifiable health information. This necessitated the addition of
a special release and consent authority to all healthcare providers before
medical information will be released to agents and interested persons of the
patients.
The effects of HIPAA are far reaching,
and can render previously executed estate planning documents useless, without
properly executed amendments, specifically addressing these issues.
Any previously executed Powers of
Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical
Directives now require HIPAA amendments.
Powers of attorneys and Living Wills
should be updated to reference this new law. More information on the HIPAA law
at http://www.njlaws.com/hipaa.htm
After you sign the
Living Will in your attorney’s office, provide a copy to your doctor and
family.
9. Competency required to sign a Will or Power of Attorney
My law
office cannot prepare a Power of Attorney, Will or any other legal document
unless a person is mentally competent. If someone is unable to come into our
office, we require the client or client’s family to have the treating Doctor
sign the “Doctor Certification of
Patient Capacity to Sign Legal Documents” It is the client or client’s
family’s responsibility to contact the doctor, obtain the signed Certification
at the clients’ expense, and then provide the law office with the original
signed Certification. The law office cannot accept phone calls stating someone
is competent. Therefore, it is wise do have your documents drafted while you
can drive and are healthy.
More
information on Wills and Probate at
