Wednesday, August 30, 2017
Elect against Will by spouse
Elective share of surviving spouse in New Jersey What is my share of my spouse's estate if I elect to take against the will of my deceased spouse? In general, a surviving spouse dissatisfied with his or her share under the Will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testator’s entire estate. The surviving spouse is entitled to one-third of the estate provided that at the time of death, the surviving spouse and decedent had not been living separate and apart in different habitations. Generally, the surviving spouse must elect to take his/her elective share by filing a complaint within six months after the appointment of a personal representative of the decedent's estate.
Thursday, August 17, 2017
Advice to the Executors of an Estate
Advice to the Executors of an Estate
Advice to the Executors of an Estate
The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.
Duty of Executor in Probate Estate Administration
1. Conduct a thorough search of the decedents personal papers and effects for any evidence which might point you in the direction of a potential creditor;
2. Carefully examine the decedents checkbook and check register for recurring payments, as these may indicate an existing debt;
3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;
4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;
Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills. Medical expenses can be deducted in the inheritance tax.
Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or readily ascertainable creditors of the decedent. This means that is your responsibility to diligently search for any readily ascertainable creditors.
Other duties/ Executor to Do
Bring Will to Surrogate
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries (Attorney can handle)
If charity, notice to Atty General (Attorney can handle)
File notice of Probate with Surrogate (Attorney can handle)
File first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)
File waivers within 8 months upon receipt (Attorney can handle)
Prepare Informal Accounting
Prepare Release and Refunding Bond (Attorney can handle)
Obtain Child Support Judgment clearance (Attorney will handle)
Lets review the major duties involved-
In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Probate. The executor must probate the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.
Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.
Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return.Occasionally, the return will be audited.
Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience
At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which weve set out below.
In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Probate. The executor must probate the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.
Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.
Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estates assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return.Occasionally, the return will be audited.
Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.
http://www.njlaws.com/Advice-executor.html?id=2801&a=
Administration of Estates, Probates and Decedents Law in New Jersey 3B:10-6
Administration of Estates, Probates and Decedents Law in New Jersey 3B:10-6
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Administrator of an Estate where there is no Will
Administrator of an Estate where there is no Will
ADMINISTRATOR OF A DECEDENTS ESTATE WHERE THERE IS NO WILL- DUTIES AND RESPONSIBILITIES
When a person dies without having a Will that is called intestate. The administration must be opened in the County where the decedent resided at his/her death. The person who is seeking to qualify as Administrator must bring into the Surrogatesoffice a certified copy of thedeath certificate, a complete list of names and addresses of all immediate next of kin of the decedent, and an exact amount of every asset in the decedents name alone. Your right to act as an Administrator is defined by law in the following relationship order:
FIRST - Spouse of the decedent
SECOND - Children of the decedent
THIRD - Parents of the decedent
FOURTH - Brothers and sisters of the decedent
FIFTH - Children of a deceased brother or sister
Persons having a prior or equal right to act as Administrator under the law will be required to renounce their right to act.
http://www.co.gloucester.nj.us/depts/s/surrogate/services/admaffidavits.asp
Who has the right to be appointed when an individual dies without a Will? The next of kin of the decedent have the right to be appointed. This is determined by statute. The surviving spouse or domestic partner has the first right. Children of the decedent are next. However, any heir may be appointed assuming they obtain the appropriate renunciations from any other heir who has an equal or prior right to be appointed.
If all the children agree that one person shall serve as Administrator, the Attorney will prepare Renunciations for the other children to sign. However, if some of the children will not sign, you will need to have your attorney file and Complaint and Order to Show Cause to have you appointed as the Administrator.
What do I bring if the decedent dies without a Will? You must still go through the probate process. You will be required to bring:
A certified death certificate; Renunciations, if applicable, from parties not willing to serve as Administrator.
A list of the decedents assets and an approximate value of each.
You must provide the Make, Model and Vin number for any car in the decedents name alone
You must provide Bank Account information i.e. Bank name, Account number and most recent statement.
http://www.co.middlesex.nj.us/Surrogate/faq.asp
In most cases, a surety bond will be required in order to appoint an Administrator. The purpose of the bond is to protect all heirs and creditors of the estate. Pursuant to New Jersey statutes, N.J. S.A. 3B:15 15-1, the order of appointment includes a requirement that the Administrator post bond. The Surrogate sets the bond amount based on the total amount of the estate. The applicant may choose the insurance agency they wish to work with. The bonding agency usually requires an attorney to represent the estate to assure payment of the bond premium. The bond must be executed before the Administrator will be appointed. Once the estate is closed and all the debt has been paid and the money has been distributed, a Refunding Bond and Release must be filled out by every beneficiary of the estate, including the Administrator, in order to get released from the bond.
If the applicant qualifies as the Administrator, Letters of Administration and a short certificate will be issued by the Surrogate. A short certificate is the document the Administrator will use as proof of their authority to transfer or sell the decedents assets.
Source: http://www.co.gloucester.nj.us/depts/s/surrogate/services/admaffidavits.asp
What happens if I cant find the Original Will? If the original Will cannot be found, the next of kin to the deceased would come to the Surrogate Court to make application for Administration.
What is a Surety Bond and why do I need to get one? A surety bond is an insurance policy that protects the beneficiaries and creditors of the estate. Administrators are required by law to obtain a surety bond in order to be appointed.Executors may not be required to obtain a surety bond if the will waives that requirement.
How do I get a Bond released? The Administrator can be released from the surety bond in two ways:
Filing the original refunding bond and release forms from all beneficiaries with the Surrogate Court and stamped copies with the Insurance Company
With the approval of the Superior Court of a formal accounting of the estate
Some of the Duties of the Administrator in Estate Administration
1. Conduct a thorough search of the decedents personal papers and effects for any evidence, which might point you in the direction of a potential creditor;
2. Carefully examine the decedents checkbook and check register for recurring payments, as these may indicate an existing debt;
3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;
4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;
Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills. Medical expenses can be deducted in the inheritance tax.
Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Administrator/ Personal Representative in every estate is personally responsible to provide actual notice to all known or readily ascertainable creditors of the decedent. This means that is your responsibility to diligently search for any readily ascertainable creditors.
Other duties/ Administrator to Do
Lets review the major duties involved-
In General. The Administrators job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets. Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Probate. An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The Administrator should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the Administrator the authority to deal with the IRS on the estates behalf.
Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.
Manage the Estate. The Administrator takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the Administrator may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the Administrator will have to obtain stock power, tax waivers, file affidavits, and so on.
Take Care of Tax Matters. The Adminstrator is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The Adminstrator can, in some cases be held personally liable for unpaid taxes of the estate. If they don't follow the law. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required. Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
Distribute the Assets. After all debts and expenses have been paid, the Administrator will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate. Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an Administrator can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the Administrator should have an understanding of the many problems involved and an organization created for settling estates. The Administrator should retain an attorney experienced in estate administration.
http://www.njlaws.com/admin.html?id=5566&a=
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