“You don’t have to be rich…” to have a will.

rain imageSay it ain’t so, Prince.

The Morning Papers said that probate documents recently filed in Minnesota claim His Royal Badness did not have a will.

With all the effort the man went to over the years to retain control of his art and his image, I find this almost impossible to believe. It’s not just a Sign o’ the Times, it’s a sign something was very wrong.

Because estate planning is about P Control.* And we all want it, we want to keep it, we don’t want others to have it.  Especially not the courts, who know nothing about our dreams, our goals, our wishes, our values except for what someone with a stake in it tells them.

Admit it. We especially want to stay in control when we can’t do it ourselves anymore. That is why I find it hard to believe that Prince would just LetitGo. This is the reason we all need to do estate planning – you have to get it done because it’s not Automatic. Even if you are The Marrying Kind, your spouse will only have limited powers without your written consent.

If you want to be the one to make decisions about what happens with your stuff, what happens with your health, what happens with your money, you have to plan ahead and put it in writing. Make sure the keys to your vault, no matter how small or big it may be – are held by someone you trust. If nothing else, I hope you get this in your Head by the end of this blog.

In my line of work, the biggest estate planning concern I have for my clients is making sure they have the right kinds of documents to retain control during their lives, like powers of attorney for finances and health care. Without having these in place, if you are “Delirious” a judge is going to decide who makes decisions about where you live (and it probably won’t be Alphabet St.,) what kind of end-of-life treatment you will receive, and how your money will be spent. That may not be the person you would choose for yourself, and without written directives, your end-of-life preferences may go unrespected. I try very hard to make sure that does not happen to my clients. Its a lot more likely there will be Thieves in the Temple if you don’t choose people you trust, and things won’t go the way you want if you leave it up in the air.

But I get it, people also want to decide what happens to their Diamonds and Pearls, and other hard-earned stuff after they are gone, so we do wills and trusts as well to control what happens after death.  A good lawyer probably won’t die 4 u, but if U r Willing and Able they will write a will 4 u. And even though we all don’t have a vault of music worth potentially hundreds of millions, many of us have special things that will need management or ongoing help and attention after we are gone – like family property, or a loved one with special needs such as a minor or disabled child, or a spouse on Medicaid. People who value their privacy might want these things to be taken care of outside of the probate court system. In cases with issues like those, a trust could be the best estate planning tool. Finally, if you really want to say I Hate U to someone in particular, a will or trust is a good place to do it by leaving them out.

If you are uncomfortable talking about death and disability,  I Feel for You. A good lawyer will help you through it. Or maybe you are thinking Money Don’t Matter 2nite.  But it will matter if something happens to you and you have not chosen someone you trust to handle things – and you never know when that day will be. After all, didn’t 1999 seem like a long way away, once upon a time?

Whether you are young or old, rich or poor, gay or straight, black or white you need to get these done when you reach adulthood, which is 18 in Wisconsin. Don’t let Controversy reign over your world.

#RIPPrince – although that is sounding less and less likely if the news is true.

*Oh – P? I meant probate.

 

 

Upcoming CLE: Current Developments in Medicare and Medicaid for Long-Term Care

Upcoming CLE: Current Developments in Medicare and Medicaid for Long-Term Care

Rhode Island attorneys who practice elder law or advise healthcare facilities may be interested to know about an upcoming RI Bar Association CLE seminar on Medicare and Medicaid.  I’m pleased to announce that I’ll be speaking at this seminar along with two senior members of the Rhode Island Executive Office of Health and Human Services next month. Here are the details:

Current Developments in Medicare and Medicaid for Long-Term Care
2-4pm, Tuesday, May 24th, 2016
Rhode Island Law Center, Cranston
41 Sharpe Drive, Cranston, RI 02920

*Unable to attend in person? A live webcast takes place at the same time*

Many Americans rely on Medicare and Medicaid, and they are critical in paying for long-term care. As an attorney advising a client or representing a hospital or nursing home facility, it is imperative to keep up with the changing laws.

This program will review an under-utilized technique to enable clients to obtain extended access to the Medicare Part A skilled nursing home benefit. It will also review changes in the structure and procedures at the Rhode Island Offices of Health and Human Services (OHHS) and the Department of Human Services (DHS) and how to assist clients with Medicaid applications.

Don’t miss your chance to expand your proficiency in this unique area of practice and meet with personnel from the Executive Office of Health and Human Services.

Speakers:
Deborah A. George, Esq.
Legal Services Administrator
Office of Legal Services
Executive Office of Health and Human Services

Jennifer L. Wood, Esq.
Deputy Secretary/General Counsel
State of Rhode Island
Executive Office of Health and Human Services

Mark B. Heffner, Esq.
Certified Elder Law Attorney*
Heffner Associates

For more information and to register, see the seminar brochure.

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Can Non-Citizens Qualify for New Jersey Estate and Death Tax Exemption

Can Non-Citizens Qualify for New Jersey Estate and Death Tax Exemption

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Estate Planning Attorney

 

Recently I reviewed a will for a married couple, both are non-citizens. While the federal statute is clear on estate tax exclusion and marital deduction for non-citizens, there are no NJ statutes on point.

There are two issues present (1) is a non-citizen is entitled to the $675,000 NJ exclusion and (2) if a transfer from a non-citizen decedent to a non-citizen surviving spouse will be exempt from NJ estate tax under the marital deduction?

Simply stated for the NJ Inheritance Tax there is no citizenship requirement for the martial deduction. For the NJ Estate Tax – the 2001 Federal estate tax law and exemptions. Let me explain the marital deduction rules a bit more.

A marital deduction is not allowed when property is transferred to a non-US citizen spouse. However, an exception to this rule is available through the use of a qualified domestic trust (“QDOT”). The marital deduction is allowed for transfers to a surviving spouse who is not a US citizen if the property passes to the surviving spouse in a QDOT, or if such property is transferred or irrevocably assigned to a QDOT before the decedent’s estate tax return is filed (Code Sec. 2056(d)(2).

A QDOT is any trust:
(1) that requires at least one trustee to be either an individual who is a US citizen or a domestic corporation;
(2) that requires that no distribution of principal from the trust can be made unless such a trustee has the right to withhold from the distribution the tax imposed on the QDOT;
(3) that meets the requirements of any applicable regulations; and
(4) for which the executor has made an election on the decedent’s estate tax return (Code Sec. 2056(a)).

Note that the QDOT rules can be avoided if the non-US citizen surviving spouse:
(1) becomes a US citizen before the day the estate tax return is filed; and
(2) was a resident of the United States at all times after the date of the decedent’s death and before becoming a US citizen (Code Sec. 2056(d)(4); Reg. Sec. 20.2056A-1(b).

There you have it.

To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Premarital Agreements and Medical Eligibility in New Jersey

Premarital Agreements and Medical Eligibility in New Jersey

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a NJ Medicaid Attorney and Law Firm

 

Medicaid says it does not recognize premarital agreements signed by spouses prior to entering into a first, second or subsequent marriage.  A premarital agreement is a signed contract between two competent adults prior to marriage which addresses each other’s economic, and financial support obligations and responsibilities during the marriage and/or in the event of divorce or the death of one spouse.  These agreements are legally binding upon each signatory provided certain formalities and disclosures are made (these formalities and disclosures are outside the scope of this page).  But there are strategies which I believe preclude Medicaid from refusing to acknowledge and enforce these agreements. In my opinion, Medicaid is powerless to deny an otherwise lawful premarital (a/k/a prenuptial agreement) legality.  To be successful however requires a deliberate strategy and precise timing.

My strategy requires an immediate application to the Superior Court to obtain a judgment that declares the prenuptial agreement enforceable and enters a divorce from the prospective (or actual) institutional spouse.

There is an interesting dynamic and running conflict within New Jersey laws when this strategy is contemplated.  First there are published cases that hold each spouse to be legally responsible to the other spouse for life’s “essential necessities,” but this case law does not address the enforceability of those obligations when a premarital agreement has been legally signed by the spouse prior to marriage.  Therefore, filing for divorce and enforcing the terms of the premarital agreement is your only option to escape Medicaid’s non-negotiable position on marriage, which is if you’re married when you file for Medicaid you’re bound by the Medicaid laws.

Please read my extensive blog on this subject found under the Recent Posts/Blogs section of this page. http://bit.ly/1o6vWmd Click here

 

To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Wills and Codicils…How to Properly Change Your Will to Avoid A Will Contest and Estate Dispute

WILLS AND CODICILS…HOW TO PROPERLY CHANGE YOUR WILL TO AVOID A WILL CONTEST AND ESTATE DISPUTE

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Will Contest and Probate Litigation Law Firm

Those of us who have a will know how important it is to ensure that your wishes will be honored after your death and that you can take comfort in knowing that your loved ones will be properly cared for. Once your will is drafted and finalized, what happens if you change your mind with respect to beneficiaries named in your will? How simple or complicated is it to alter your will?

Periodically reviewing your will and making revisions as you deem necessary is critical to avoid litigation among your family and friends after your passing. If you decide to amend or change your will, you can either (1) create a new will document or (2) draft a codicil to your will.

A codicil is a written amendment to a person’s will, which must be dated, signed and witnessed just as a will would be, and must make some reference to the will it amends. A codicil can add to, subtract from or modify the terms of the original will. When the person dies, both the original will and the codicil are submitted for approval by the court (surrogate’s office to be precise), and forms the basis for administration of the estate and distribution of your belongings. Notes, memos or a handwritten change on the will document itself may not be sufficient. In that instance, you are subjecting your loved ones to costly litigation wherein a court would have to determine if a change to your will is enforceable and in accordance with your testamentary wishes.

If a will is non-compliant with the execution requirements (in writing, signed and witnessed), a court will have to determine if the document is legal. In this case the proponent of the document must prove and establish by clear and convincing evidence that the decedent intended the document or writing to constitute (1) the decedents will; (2) a partial or complete revocation of the will; (3) an addition or alteration of the will or (4) a partial or complete revival of the formerly revoked will or formerly revoked portion of the will.

Clear and convincing proof means that the evidence presented by a party during the trial is more highly probable to be true than not.

There are established court decisions on this issue. In the 1985 case of In the Matters of Marinus, the court held that a codicil must specifically or by clear implication refer to that will or be attached to it in order to effectuate a republication of the will. Other Appellate Division cases analyzed whether the proffered document was reviewed and assented to by the decedent at his/her final binding will. In light of the above, it is important to make your intentions clear. If not, you are certainly opening the door to future litigation where a court will have to interpret and make a determination as to your final intentions and wishes.

To discuss your Will and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.