Divorce and the New Jersey Elective Share Law – Does it Impact the Probate of an Ex-Spouse’s Estate?

By Fredrick P. Niemann, Esq. a New Jersey Probate Law Attorney

It is clear that under New Jersey probate laws a spouse cannot be completely disinherited while still married. But, what happens when a spouse dies.  A divorce has not been finalized and the parties did not reside together as husband and wife?

New Jersey probate and divorce law states that “if after having executed a will the testator is divorced or the marriage is annulled, any dispositions or appointments of property made by the will to the former spouse are revoked.”

So what happens between divorce death and the probate of a Last Will?
During that period of time when a divorce has not been finalized, all provisions in a will for the benefit of the spouse may be enforceable in the event the testator dies prior to a judgment of divorce. This may lead one to conclude that the issue of estate planning should be addressed even before filing the divorce complaint.  Some legal commentators believe separation excludes a separated spouse from an estate, but that remains an open issue subject to a future legal opinion of a Court. I personally believe that a physical separation between spouses most likely revokes spousal entitlement to a share of a deceased spouse’s state.

Contact me personally today to discuss your New Jersey 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.

Disinheriting a Spouse Under New Jersey Probate Law

By Fredrick P. Niemann, Esq. a Freehold, Monmouth County Probate Attorney in  New Jersey

Divorce sucks!  It is destructive on so many levels causing those involved to question why the relationship failed.  Then there are the implications of New Jersey’s elective share law when death comes and a Last Will is filed for probate.

The Will specifically disinherits his or her spouse.  The question then raised is whether under New Jersey probate law is can you disinherit your spouse in New Jersey.  Law provides that a disinherited spouse under a Will of the deceased spouse is entitled to a one third share of the augmented estate of the deceased spouse. The augmented estate means that the value of the estate is reduced by funeral and administration expenses and any enforceable claims before the one third share is calculated and divided.

However, a surviving spouse receives the one third elective share after the death of the first spouse when a surviving spouse has not been living separate and apart, or has not ceased to cohabit with his or her spouse as man and wife and no divorce from bed and board or other action which has been filed has released the parties from the bonds of marriage.

In New Jersey the one third elective share is applicable to domestic partner relationships as well.

Contact me personally today to discuss your New Jersey 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.

Executors and Estate Administrators Beware! New Jersey Will File a Lien on the Probate Estate

By Fredrick P. Niemann, Esq. of Hanlon Niemann a Monmouth, Ocean County New Jersey Probate Law Attorney

In addition to the right to recover from the estate of the Medicaid beneficiary as a creditor of the estate, New Jersey Medicaid must place a lien on real estate owned by a Medicaid beneficiary during his or her life unless certain dependent relatives are living in the property. If the property is sold while the Medicaid beneficiary is living, not only will the beneficiary cease to be eligible for Medicaid due to the cash from the sale, but the beneficiary will have to satisfy the lien by paying back the state for its coverage of his or her care to date. The exceptions to this rule are cases where a spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house is living there at the time the home is sold.

Whether or not a lien is actually placed on the house of the state, the lien’s purpose is for New Jersey to recover the Medicaid long term care expenses if the house is sold during the beneficiary’s life. The lien will not be removed upon the beneficiary’s death, only when the home is sold and the debt repaid.

If you are an executor or administrator of an estate subject to probate and your decedent was a beneficiary of New Jersey Medicaid, contact me personally today to discuss this 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.

Joint Accounts: Defeating a Claim of Ownership by Account Holder

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a NJ Probate and Will Contest Attorney

Recently I received another inquiry about ownership of non-probate assets that were jointly owned by the deceased mother and her son who is a well known CPA in the area.  In this case, the sister was not named on the account and as a result, her brother received over $700,000 upon his mother’s death while his sister received $2,453.78.

Joint bank accounts, joint brokerage accounts, virtually anything jointly owned can provide that the survivor of the joint owners be entitled (by virtue of their right of survivorship) to the proceeds left in the account upon the death of the other joint owner.

If you look at joint accounts created by a parent naming an adult child as the joint owner, there are two common reasons why these joint accounts were set up.  The joint account “could” have been set up in order to purposely give the remaining money to the child.  In other words, the parent intended to make a “gift” to the child upon the parent’s death with the child receiving the balance of the money left in the joint account.  Alternatively, a joint account may be set up for the child to access the money in the joint account to assist the parent with paying bills, but with the unstated intention that the balance in the account, upon the parent’s death, be distributed according to the parent’s Last Will.  In this example, the funds in the account become part of the parent’s probate or trust estate meaning that the account will be subject to the parent’s Last Will or living trust.

In New Jersey, where the intention of the parents is not clear, it is up to the child challenging the ownership of the joint account, to prove that the deceased parent did not intend to gift the balance of the account to the surviving child.  If the child is able to prove that the intention was to gift the balance to all child(ren), or in accordance with a Last Will or trust, the courts will find that the balance left in the joint account forms part of the deceased parent’s estate to be distributed according to the parent’s Will.

Where the intention is not clear, disputes over what the parent intended often results in protracted litigation between the Estate (or its beneficiaries) and the child, with significant legal expenses being incurred by all.  And so is what is happening in the recent inquiry I just received.

The facts considered by the courts when courts try to decide what a parent intended include:

  1. Facts and conduct of the parties before and after the joint account was created – although the court seeks to determine the intention at the time the joint account was created, subsequent conduct by the joint owners may shed light on the original intention.  Who had control and use of the funds in the joint account may show the original intention – if the parent, whose money was deposited into the joint account, continued to control the money after transferring it to the joint account, it may indicate that the account was created for convenience only and not intended to be a gift to the surviving child;
  2. The wording of the bank, brokerage, annuity, and other documents that created the joint account is important as is the mental health of the grantor.  For example, did the creator understand the legal effect of creating a joint account?
  3. Who legally owned the funds that were originally deposited into the joint account – if only the parent deposited their funds to the account, then the ownership of the funds may have been intended to remain with the parent.  By contrast, if both the parent and the child contributed to the joint account, then it may be more likely that the intent was truly “share the funds”;
  4. Was a power of attorney given to the jointly named owner (the child), which may suggest that the account was not set up for convenience as the jointly named owner could have accessed the account using the power of attorney.  This is a critical factor given the strong fiduciary relationship between a power of attorney and his or her principal;
  5. Who paid the taxes on interest earned from the money in the joint account?  If the parent, then what does this suggest?  Why did just the parent pay the taxes?

Other factors that may be considered included:

  1. where the evidence establishes that the parent was aware of the consequences of creating a joint account (ie; perhaps they had prior experience with joint assets), this will weigh heavily in determining that the parent intended to gift the balance in the account to the child; and
  2. evidence of a close relationship between the co-owners may be considered by the court when determining the intention of the parent who created the joint account.

The burden of proof rests on the surviving joint owner (the child) to satisfy the court that the parent intended for the child to receive the balance left in the account on the death of the co-owner parent, if there is doubt of the intention, the balance in the account will go to the deceased parent’s estate.

Therefore, to ensure the money in a joint account is distributed as desired, a parent who creates a joint account would be wise to ensure others (ie; people other than the child who is the joint owner) are aware of their intentions – this may include other family members, as well as the parent’s lawyer and/or accountant, or other financial adviser.  Failing to clearly set out the parent’s intention (in writing) can result in expensive and protracted litigation and possibly the money going to someone other than to whom the parent desired.

If you have questions about estate planning, please contact Fredrick P. Niemann, Esq. toll-free at 855-376-5291 or email him at fniemann@hnlawfirm.com.  He welcomes your inquiries.  Then visit our website, www.probateattorneyinnewjersey.com for a more thorough discussion of this topic.


How to File a Medicaid Application in New Jersey

Fredrick P. Niemann, Esq. of Hanlon Niemann,  a New Jersey Medicaid Application Attorney

Filing the Application
Federal and New Jersey state laws regulate the Medicaid application process. The federal law on Medicaid applications is found in the Code of Federal Regulations, 42 C.F.R. §435.900. The state regulations concerning Medicaid applications are found in the New Jersey Administrative Code, Title 10, and Section 71. Internal agency memoranda, called Medicaid Communications, from the state Medicaid agency to the county boards of social services must also be consulted.

Extensive documentary evidence and information is required by the Medicaid agency to successfully file and complete an application. Because the evidence required is so extensive, Hanlon Niemann must  often meet with the client at their house if necessary to assist with the completion of the required information.

In the usual Medicaid application case, the following information and documents are required, and must be provided to the agency along with the application:

Verifications Required for Medicaid Applications
Personal Information
1). Birth Date/Citizenship Information
Birth certificate, baptismal record, passport, voter’s registration card, naturalization papers, or alien registration card.

2). Marriage Certificate/Divorce Papers/Death Record
Copy of marriage certificate
Copy of divorce papers, if divorced
Copy of death record, if spouse is deceased.

3).   Social Security Card

4). Health Insurance Card
A copy of the Medicare Card, front and back, is needed in addition to any supplemental coverage such as AARP, prescription cards, Blue Cross, major medical, etc. A copy of medical coverage premium invoice is also required.

Bank statements for each month for the past 60 months
Passbooks covering the past 60 months
Canceled checks for $500.00 or more for the past 60 months
Provide an explanation for all transactions of $500.00 or more
Continue to provide statements received between the application date and the date your case is granted by the state.