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Kearny Estate Blog

A power of attorney is an important part of an estate plan

Along with a will, a trust if one is needed, a health care directive, and other documents which we have discussed on this blog, a New Jersey resident who is going through the estate planning process may want to consider creating a durable power of attorney. Under New Jersey law, a durable power of attorney allows a person, called a principal, to name a trusted loved one, called the attorney in fact or agent, to handle the principal's financial affairs.

This step can be important even for a principal who is healthy but is simply busy or just getting on in years. Having someone else who can handle financial transactions can save the principal time which she can then devote to other endeavors.

Rocker's death may lead to battle over elective share

The estate of famed rock singer Ric Ocasek, who performed for The Cars and was inducted into the Rock and Roll Hall of Fame just last year, is now reportedly heading for a legal battle following his death in September 2019.

The rocker had been married to the same spouse for almost 30 years. They continued to share the same home even though they were in the process of divorcing. The rocker had updated his will prior to his death. Specifically, in light of the pending divorce, he cut his spouse out of the will, leaving her nothing. He also used certain language in the will to suggest she was not even entitled to the so-called elective share, although whether she is so entitled will ultimately be up to the judge who hears the case. If the woman does manage to assert her right to the elective share, then she may still be able to recover well over $1.5 million dollars from the property of the estate, even though the will says she is not to inherit anything.

Estate plans can make end-of-life care decisions in advance

Much of estate planning is focused on what happens after we are gone. A well-drafted will helps our loved ones through the transition, resolving difficult issues in advance and, hopefully, providing them with the resources to have easier lives.

However, some types of estate planning documents can go into effect before we pass away. These can include certain types of trusts that can protect assets and provide for loved ones. They can also include advance health care directives and other documents that can be invaluable in helping families to avoid some extremely painful disputes.

General versus limited guardianships

This blog has previously discussed the topic of guardianships in New Jersey. In the absence of a valid power of attorney, a family may need to request a guardianship over an adult, such as an aging parent or even an adult child, who is physically or mentally unable to care for themselves.

New Jersey law allows for two different types of guardianship over a person. The first type, called a general guardianship, gives the legal guardian full decision-making authority over the person's life. To give a comparison, for the most part, the guardian has the same power and authority over the adult as a parent has over a minor child.

When will a court replace the executor of a will?

Creating a will is a series of big decisions, none of which you should make lightly. Having a good will can make it easier for your loved ones to manage after your death. Among those important decisions is who will handle all the final expenses after your death. This person called the executor.

It’s important for the person you choose as the executor of your will to be trustworthy to carry out these responsibilities. Before you make anything official, make sure the person you choose can:

An LLC can help accomplish estate planning goals

Like other states, New Jersey allows residents to form limited liability companies, or LLCs. Usually, a person would form an LLC because he or she is interested in starting a business and wants the protection from creditors that the LLC offers.

However, some New Jersey residents may also want to consider using an LLC as an estate planning device. Using an LLC for the purpose of transferring assets can be a convenient way both to avoid some of the probate process and to save on taxes, including the federal gift tax.

How are claims against an estate handled?

Not surprisingly, many New Jersey residents die owing various other individuals and businesses money. In some cases, these are well established debts like a medical bill or a credit card. In other cases, though, the debt may arise under more controversial circumstances.

For instance, the person who died may have been the target of a negligence lawsuit or some other litigation that could have led to the deceased's owing money.

Dispute over film illustrates problem with high-profile estates

Lawyers for the estate of the late pop sensation Michael Jackson seemed reasonably confident in an initial victory in their legal dispute with HBO.

This probate litigation arose after the estate heard that HBO was planning a film that portrayed Jackson in a negative light.

What happens when there is no will?

When a New Jersey resident dies without a will, then the laws of this state determine who gets what share of his or her property. These rules also apply when the person's will is invalid or if the will does not provide for a particular piece of the person's overall estate.

These rules do not apply, however, to property held in trust or that would otherwise pass outside of the probate and estate administration process.

3 questions to ask before creating a living will

Surveys show less than a third of all Americans have created an advance directive, such as a living will, making it one of the most neglected documents for their physical and financial well-being. A living will states how you want to be cared for if you become physically or mentally incapacitated.

Some avoid getting this legal document because they’re too young and healthy to worry, while others avoid it because it forces them to answer difficult questions over their mortality, such as whether doctors should do everything they can to keep them alive, even if the outlook is dire.

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