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2020 Estate Planning & Probate Newsletter and materials from January 15 Will and Estate Update
By Kenneth Vercammen, Esq. Edison, NJ
1. Beware of cheap online forms. Always have proper Self- Proving Wills since witnesses often move or pass away. Often cheap online forms are rejected
2. Make sure your Will includes a formal "no bond required"
3. Include a funeral agent in your Will and Letter of Instruction to Family.
4. Problems if You Have No Will or a cheap online form not valid
5. Why periodic review and changes to Wills are recommended
6 2020 Federal Estate Tax Rates
7 Sign a new Power of Attorney- Do not use a form purchased online.
8. Have a new Living Will prepared to comply with the Federal Health Privacy Law (HIPAA)
1. Beware of cheap online forms. Always have proper Self- Proving Wills since witnesses often move or pass away. Often cheap online forms are rejected.
The County Surrogates will reject for filing a Last Will and Testament when the Will was not correctly and legally signed and witnessed by independent persons.
The prior 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 affidavit. A relative's old Will was not self- proving, and the witness to the Will forced to pay a $500 fee to sign paperwork.
The New Jersey Legislature later passed a law to create a type of Will called a "Self-Proving Will." In the improved "Self-Proving Will", the person for whom the Will is made first must sign. Then the two witnesses sign. Then the attorney or notary must sign;
Then the person signs a second time on the self-proving affidavit, then the witnesses sign a second time, then the attorney signs with certain statutory language to indicate the Will is self-proving. Beware of online documents not prepared by an attorney. Never use a cheap form on line. No one tries to do their own electrical work on their home anymore or do their own dental work. Have a professional do it right.
When done properly, the executor does not have to locate any witnesses. This usually saves time and substantial money. If your Will is not "self-proving" or if you are unsure, schedule an appointment with an estate planning 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. Ken Vercammen's office prepares Self Proving Wills.
2. Make sure your Will includes a formal "No Bond required" clause so the executor/ personal representative does not have to spend thousands of dollars being bonded.
Pull out your prior Will. Does it does not say No Bond required? If not, call an attorney to have a new Will prepared. If the Will does not say "No Bond required, usually the Executor will have to pay over $1,000 and go through the bonding process.
3. Include a funeral agent in your Will and Letter of Instruction to Family.
A law was revised that recommends persons appoint a "Funeral agent" to be the official person to handle a funeral. If your Will was done more than three years ago, you want to write to the Executors to formally appoint them as funeral agent.
If you don't have a Will, contact an attorney to have a Will prepared with the specific designation of someone as funeral agent.
"I hereby nominate, constitute and my Executor to serve as my Funeral and Disposition Representative, pursuant to N.J.S.A. 45:27-22. ... More information on www.njlaws.com.
4. Problems if You Have No Will or a cheap online form not valid.
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
1. The procedure to distribute assets becomes more complicated. It will require all of the children to select someone to be the Administrator, then all the children to sign a Renunciation Affidavit in front of a notary. If all the children do not sign the Renunciation Affidavit if front of notaries, then a Complaint and Order with have to be filed in the Superior Court. Cost over $3,000. The preparation of a Will for under $400 eliminates these costs.
2. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs often over $1,000 and extra surrogate fees and legal fees.
3. State law determines who gets assets, not you. People who don't help you or don't care about you can get your assets.
4. If you have no spouse or close relatives the State may take your property. Most people who rather have charities or friends get their money.
5. It often causes fights and stress within your family and sometimes lawsuits.
6. If there are minor children a Judge determines who gets custody of grand children.
When loved ones are grieving and dealing with death, they shouldn't be overwhelmed with Financial concerns and estate problems if there is no Will or not prepared or signed properly.
Who don't you want to receive your assets?
Who is not the best choice to raise your children, or safeguard your children's money for college? Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play games?
Beware of online documents not prepared by a real attorney. Never use a form on line. It is foolish to do your own electrical work on a home anymore or change their own oil. Have a professional do it right.
5. Why periodic review and changes to Wills are recommended
Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:
-Death or incapacity of a beneficiary,
-Death, incapacity or change in residence of a named executor, trustee or guardian of infants
-Bankruptcy or pending divorce of a child or grandchild
- Substance abuse or spending problems of a beneficiary
-Significant changes in the value of your total assets or in any particular assets, which you own
-A change in your domicile
-Annual changes in tax law
- Changes in who you like and who care about you
A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature. Beware; if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will.
6. 2020 Federal Estate Tax Rates
For 2020, the basic exclusion amount will go up to a new total of $11.58 million. So for you millionaires out there, you will be taxed on estates over $11.58 million. New Jersey has temporarily stopped the NJ Estate Tax. However, it is unclear if the governor's pledge to increase taxes on the rich will be approved.
7. Sign a new Power of Attorney- Do not use a form purchased online.
A Power of Attorney should always 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). A NJ bank or brokerage company does not have honor a Power of Attorney without the NJ language. Also, if you or your representative move it is a good idea to have a new POA prepared since a bank may give your selected person a hard time if the address on their ID is different than the address on the POA.
A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. You usually select a spouse, child or family member. In general, an attorney-in-fact may perform any legal function or task, which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your spouse, children or partner the power to handle your affairs if you become ill or disabled. In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your spouse, family or partner cannot pay your bills or handle your assets. The result can be lengthy and expensive delays. Have a current Power of Attorney prepared. Avoid having to spend $4,000 on a lengthy guardianship.
8. Have a new Living Will prepared to comply with the 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.
Any old Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments. After you sign the Living Will in your attorney's office, provide a copy to your doctor and family.
Powers of Attorneys and Living Wills should be updated to reference this Federal reg.
A Living Will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.
Example:
A. Fluids and Nutrition.
I request that artificially provided fluids and nutrition, such as by feeding tube or intravenous infusion (initial one, not both)
1. ______ shall be withheld or withdrawn as "Life Sustaining Treatment."
2. ______ shall be provided to the extent medically appropriate even if other "Life Sustaining Treatment" is withheld or withdrawn.
B. Directive as to Medical Treatment.
I request that "Life Sustaining Treatment" be withheld or withdrawn from me in each of the following circumstances: (Initial all that apply. Most people initial 1-4, all of them)
1. ______ If the "life sustaining treatment" is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging my life, or is likely to merely prolong an imminent dying process;
2. ______ If I am permanently unconscious (total and irreversible loss of consciousness and capacity for interaction with the environment);
3. ______ If I am in a terminal condition (terminal stage of an irreversibly fatal illness, disease, or condition); or
4. ______ If I have a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh the likely benefits to me from such intervention.
______ None of the above. I direct that all medically appropriate measures be provided to sustain my life, regardless of my physical or mental condition. I want to be kept alive for as long as possible.
___ None of the above. I direct that all medically appropriate measures be provided to sustain my life, regardless of my physical or mental condition. [This means you want to be kept alive with tubes]
If you or anyone you know needs an updated Will, Power of Attorney or Living Will, please have them fill out our confidential interview from and schedule a consult. Call the Law Office of Kenneth Vercammen at 732-572-0500 to schedule an in-office consultation.
Kenneth Vercammen & Associates
Attorney at Law
2053 Woodbridge Ave
Edison, NJ 08817
"CONFIDENTIAL WILL QUESTIONNAIRE"
Please fill out completely and email, fax or mail back for Vercammen Law to draft your Will. Email, typing name is best. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.
Please be sure to check all appropriate boxes. If "NONE", please state "NONE". If "NOT APPLICABLE", please state "N/A"
PLEASE PRINT CLEARLY
1. Your Full Name: ____________________
2. IF MARRIED OR SEPARATED, complete (a) and (b) below. If married no need to fill out separate forms unless you want different Executors
Spouse's Full Name: ___________________________________
First Last
3. Your Street Address: ___________________
City _______________________ State ____ Zip Code _____
4. Telephone Numbers:
Cell: _______________________________ other # ________
5. E-mail address: ________________________
6. Referred By: _________________________
If referred by a person, is this a client or attorney? If you heard about the law office on the Internet, what search terms did you use? If Legal plan, write Claim number & ID. [Hyatt, UAW] ____________
7. Today's Date ____________________
We recommend a Durable Power of Attorney in the event of your physical
or mental disability to help you with financial affairs?
Yes ________ No ________
We recommend a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan?
Yes ________ No ________
Confidential Will Q
How can we help you? What are your questions/other important information that need to be addressed?
____________________________________
[It is required by Court Rules that all pages be filled out in person's own handwriting prior to seeing the attorney]
8. Your Marital Status: [ ] Single [ ] Married [ ] Separated [ ] Divorced [ ] Widowed
9. Your Day/Month of birth: ___________________
10. Spouse Day/Month of birth: _________________
11. If you are the parent or legal guardian of a minor child or minor children, please check here. [ ]
2. ESTATE EXECUTOR
The person charged with administering/Probating your estate, paying taxes and/or other debts, preserving, managing, and distributing estate assets and property is called an Executor. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Executor, followed by the child who lives closest to your home.
Please provide the following information about the person you wish to name to serve in this capacity.
1. PRIMARY Choice of Executor/Personal Representative in Power of Attorney:
Name: _________________________ _______________
First Last
Relationship: _______________ Address: ________________
2. SECOND Choice of Executor/Personal Representative in Power of Attorney:
This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.
Name: _________________________ _____________________
First Last
Relationship: _______________ Address: ______________
The two proposed Executors must be filled out prior to meeting the attorney. We do not recommend Joint Executors, which often cause conflicts and additional work for the Estate. It is best to select one primary person, then a secondary person.
Asset Information- Must Be Completed - If none, write "none"
House/Real Estate Address ______________________
Other Real Estate Address ______________________
Estimate Total Real Estate Value: _____________ mortgage balance ___
Bank Accounts, Stocks, CDs and Assets: ____________
Approximate Amount ___________________________
Direct Beneficiaries of Accounts - If none write "none" __________
Other Major Assets - If none, write "none" ____________
Approximate Life Insurance: _________________ Beneficiary _____________
Is total more or less than $11,500,000 ? ____________
In the Will- Who do you want to get your assets:
Beneficiary (1) _______________________ Relationship _________
Beneficiary (2) _______________________ Relationship ________
Beneficiary (3) _______________________ Relationship _______
It is required that major assets and beneficiaries be filled out prior to seeing the attorney. A best guess. Also, list who receives assets if a beneficiary dies prior to you if that person's share does not go to their children. No account numbers needed.
Any Specific Bequests of Money and Property:
_____________________________________________
[ ] A. MARRIED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN).
Generally most married people provide that, upon their death, property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse.
2. If your spouse predeceases you, then your estate will be divided in equal shares among all of your living children, If any child shall predecease you, then that child's share to their children (grandchildren).
Names of Children: ______________________________ Age: _____
____________________________________________ Age: _____
LIST THE NAMES AND AGES OF ALL CHILDREN EVEN IF THEY ARE OLDER THAN EIGHTEEN. IF NO CHILDREN, WRITE NONE. If no minor children, skip page 5.
III. GUARDIAN(S) OF MINOR CHILD(REN) or Trustees of Trust
[Skip this section if you have NO minor children and DO NOT want a trust. There are substantial additional fees for preparation of a Trust, minimum $2,500 for stand alone trusts]
The surviving parent of a minor child is ordinarily entitled to be the GUARDIAN of that child. In the case of simultaneous death of you and your spouse, or if you are a single parent, you should appoint a Guardian for your minor child. It is advisable, prior to the completion of this Questionnaire, to make sure that your proposed Guardian(s) is (are) willing to serve as Guardian(s). In addition, the Guardian will also hold the monies for the minor children UNLESS you direct us otherwise. In your Will you can have any adult serve as Trustee of monies for minor children.
Provide the following information about the person(s) you select to be Guardian(s)/Trustee(s). In the event my spouse predeceases me, I name as GUARDIAN(S)/ TRUSTEE(S):
1. PRIMARY Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: ______________________________________
2. SECOND Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: _____________________________________
[ ] B. MARRIED PERSONS WITH NO CHILD(REN) OR GRANDCHILD(REN).
Generally most married people with no child(ren) or grandchild(ren) provide that upon their death their property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse, but
2. If your spouse predeceases you, then your estate will be distributed to your living parent, or equally to your living parents.
3. But should both of your parents predecease you, then your estate will distributed equally to your brothers and sisters or equally to the children of a predeceased brother or sister.
Please check B above only if you wish your property distributed precisely and exactly as indicated in section B, 1 through 3, above.
Additional information on Wills, Probate and Elder Law available at www.njlaws.com. This interview form online at http://www.njlaws.com/will_questionnaire.html
[ ] C. DIVORCED OR WIDOWED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN). Generally, most divorced or widowed persons with child(ren) or grandchild(ren) provide that upon their death property will be distributed as follows: 1. Your estate (all property and assets not owned jointly with another person) will be distributed in equal shares to all of your living child(ren).
2. But if one or more of your children predeceases you, that deceased child's share will be distributed to his or her child(ren), your grandchild(ren) in equal shares
[ ] D. ALTERNATE PLAN OF DISTRIBUTION - You may list specific gifts to individuals and/or divide your estate among several individuals by listing percentages to each, making sure that the percentages total 100%. You may add additional sheets if necessary or use the back of this form. There are additional Will preparation fees if there are gifts, called specific bequests.
Are there any beneficiaries with special needs, or receiving SSI or SDD or there are reasons why they should not receive money outright? Please answer in detail ___________________________
Are you or any of your Beneficiaries not United States citizens? _______
If not US citizen, extra taxes may apply.
Do you have any religious wishes on burial? ___, Are you a USA Veteran or Elks member?_
PLEASE WRITE DOWN ANY QUESTIONS YOU HAVE HERE or anything else important that we should be aware. Use back of this page for additional important information or type a list:
___________________________________________________________
If your assets exceed $11,500,000 and you desire estate planning to avoid or reduce your estate tax or require a Trust to protect a spouse or children, please advise Mr. Vercammen. A Standard Will is not designed to address estate tax issues. We do not do Medicaid Nursing Home Planning. The law office building has four steps in the front so please advise us if you need assistance ahead of time.
WILLS:
T 1- Parents with minor children and trust for children 22,25,30 ___________
T 2- Parents no spouse ____________
T 3- Unmarried ____________
T 4- Parents without trust ____________
T 5- Spouse Trust Will $ for spouse to go in Trust ? [2nd marriage
or protect assets from Medicaid] _____
PAYMENT WILL BE MADE BY: (Please circle one)
Check, Credit Card (Visa, Mastercard, American Express) or Cash
Checks are payable to Vercammen PC
Payment is required for Will, Power of Attorney and other document preparation at the first consult and prior to any documents being drafted. Minimum fee for Last Will and Testament preparation is $300 each. We charge a $150.00 consultation fee, which is credited to the preparation of the Will or other document. This $150.00 fee is non-refundable even if the documents are not prepared. If there are any changes to a draft form Will, Power of Attorney, or other document, there will be a minimum charge of $75.00 per revision. The Will needs to be signed within 21 days of initial consult or an additional fee of $100.00 will be charged. Due to complexity and need to re-title assets, Fees for Stand-a
Alone Trusts are minimum $3,000.
This form was filled out by: sign name _________________________
__________________________________________________________________________
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