Feb 26
Part of our practice at The Jayson Law Group LLC includes elder care legal elements, including drafting a power of attorney or a living will. The Union, NJ elder care attorneys at The Jayson Law Group LLC are providing this information in hopes that readers can make more informed decisions about their future health care.
Firstly, it is important to note that a living will and a power of attorney are only valid if they are pertaining to an individual at least 18 years or older and who can understand what the documents are about. Additionally, health care documents are effective if your doctor determines that you lack the capacity to make your own health care decisions, meaning that:
- You cannot understand the nature or consequences, nor communicate your wishes (orally, in writing, or through gestures) regarding the health care options available to you.
These documents are in effect until:
- You officially revoke your document
- A court invalidates your document: this can occur if someone questions the validity of your health care directives.
- A court revokes your agent’s authority: this can occur if someone believes your health care agent is not acting on behalf of your best interests.
- You get a divorce: while a divorce has no effect on your written directions for health care, it can revoke the right of your spouse to act as your health care agent.
Power of Attorney
Usually called “health care proxy” or “attorney-in-fact for health care,” a power of attorney legally appoints someone you trust to be your health care agent in the event that you lack the capacity to make your own health care decisions. Your health care agent will make any necessary health care decisions for you and make sure that health care providers are giving the type of care you wish to receive. When drafting a power of attorney you can expand or limit the powers you grant to your satisfaction.
Living Will
A living will dictates the type of care you do or do not want if you become incapacitated. Unlike a conventional will or living trust, this document is only to lay down your health care preferences. There is no limit to what you can and cannot say about your health care directives in a living will.
Click here or call us today at (908) 258-0621 to speak to a New Jersey elder care law firm—The Jayson Law Group LLC.
Dec 03
Estate planning can be a complex and emotionally difficult affair, but the proper guidance can make all the difference. The Newark estate law attorneys at The Jayson Law Group want to help you secure your future and the future of your loved ones when devising your estate plan. We have outline a few simple pointers and explanations regarding wills and trusts in the state of New Jersey to help you effectively draft your estate plan for your family’s future.
What is a Will?
A will is a legally enforceable written document that decides the ownership of your property upon your death. A will also appoints your legal representative, known as an executor, to carry out your wishes.
What is a Trust?
A trust is a legal arrangement through which a person or entity called a “trustee” holds legal title to property or income for another person, called a “beneficiary.”
How are they Different?
A will is only effective upon death of the signer, whereas most trusts becomes effective as soon as you create them. In addition, a will only covers property in one person’s name; any property in joint tenancy is not covered. A trust covers all property put in the name of the trust.
If you are concerned about how all of your assets are going to be distributed after you die, or how much tax your heirs will inherit, you will want to look into a trust. Furthermore, property in a trust can pass to its beneficiaries outside of a will so that the property in the trust does not need to go through probate.
A trust cannot replace a will; everyone should have a will. A will can provide back-up protection for any asset that does not make it into the trust. Most trusts only deal with specific assets, such as life insurance or a piece of property, while a will governs the distribution of nearly everything else in your estate.
About Both
If you do not have a will or a trust, your property will be transferred to your closest living relatives as determined by New Jersey state law. This is why estate planning is important, it allows you to dictate where you assets and belonging go and who will be inheriting them.
Both trusts and wills and trusts need to be updated with new property is acquired or to change beneficiaries or investments. Consult your Newark business lawyer every few years to make sure that your estate plan including any trust(s) and/or will stays up-to-date.
Our Union, NJ business attorneys and estate attorneys can help you plan for your future and protect your loved ones. Click here or call us today at (908) 258-0621 to find out more about our estate planning services.
Oct 08
United States v. Windsor ___ U.S. ___ (2013) was the Supreme Court case holding that Section 3 of the Defense of Marriage Act (“DOMA”) was unconstitutional. In doing so, the court found that all federal rights must be granted to married same-sex couples. Federal agencies are now in the process of informing the public of what this ruling means. On September 18, 2013 the Department of Labor released “Guidance to Employee Benefit Plans on the Definition of ‘Spouse’ and ‘Marriage’ under ERISA and the Supreme Court’s Decision in United States v. Windsor.”
The Guidance
The Employee Retirement Income Security Act (“ERISA”) governs pension plans in private industry. This Guidance changes the definition of “spouse” to mean any individual legally married in a state. Included in this definition are same-sex couples that are legally married in one state, but reside in a state that does not allow same-sex marriage.
As was the case in the Windsor decision, this ruling does not apply to same-sex couples that are not legally married, i.e. civil unions. While state laws may apply to those couples who are in a civil union, a couple must be in a relationship that is recognized by a State as a legal marriage.
What Does this Means?
This ruling creates uniformity in the pension system. If the rule applied only to couples where they were domiciled it would have created problems. A same-sex couple legally married in State A but living in State B which does not recognize same-sex marriage would have created logistical problems. As the Guidance said “[s]uch a system would be burdensome for employers and would likely result in errors, confusion, and inconsistency for employers, individual employees, and the government.”
Furthermore, there would be an issue with consistency among the different federal agencies. As the Guidance notes “given the interconnectedness of statutory provisions affecting employee benefit plans, recognition of marriage based on domicile could prevent qualification for tax exemption, lead to loss of vested rights if spouses move, and complicate benefits determinations if spouses live in different states.”
The Department of Labor discussed this Guidance with the IRS and the Department of Health and Human Services and finds that this new rule is consistent with the goals of ERISA.
For individual businesses this means that if they participate in a pension plan they must extend those plans to those employees who are in a legal same-sex marriage.
Sep 07
In Part 1 and Part 2 we examined a case in which an unsigned will made its way through the courts. In this final installment we’ll take a look at the cases conclusion and decision.
The Superior Court of New Jersey, Appellate Division acknowledged that “[t]he trend toward excusing harmless errors is based on a growing acceptance of the broader principle that mistake . . . should not be allowed to defeat intention nor to work unjust enrichment.” Ehrlich at 71. The Appellate Division previously addressed the issue of the “harmless error” doctrine in In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010) when it held that “a writing need not be signed by the testator in order to be admitted to probate.” Ehrlich at 71, quoting Macool at 311.
In order for a writing to be admitted into probate under N.J.S.A. 3B:3-3 “the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.” Id., citing MaCool at 310.
The Appellate Division in Ehrlich noted that Section 3 should be liberally construed, but “the greater departure from Section 2’s formal requirement thee more difficult it will be to satisfy Section 3’s mandate that the instrument reflect the testator’s final testamentary intent.” Id. at 73.
The court found that “to overcome the deficiencies in formality, Section 3 places on the proponent of the defective instrument the burden of proving by clear and convincing evidence that the document was in fact reviewed by the testator, expresses his or her testamentary intent, and thereafter assented to by the testator.” Id. at 74.
In applying the above requirements, the court found that Richard Ehrlich prepared the document and challenged the document. Id. The court also noted that Jonathan was the only living relative that the decedent had any meaningful contact with and “was the natural object of decedent’s bounty” of the Will submitted for probate. Id. These facts allowed the court to conclude that the document was reviewed the document.
Next the court needed to determine whether decedent gave his final assent to the document submitted for probate. The court reasoned that the notation on the cover page by the decedent led credence that Richard Ehrlich assented to the document submitted to probate to act as his Will. The court also used the fact that the decedent also executed a healthcare directive and a power of attorney on the same day to show the decedent’s intent to assent to the Will. Richard Ehrlich’s actions describing the Will to friends following its original drafting also was used by the court to show his assent to the document.
In reviewing all of the facts and circumstances surrounding this case, the Appellate Division found that “there is clear and convincing evidence that the unexecuted document challenged by appellants was reviewed and assented to by decedent and accurately reflects his final testamentary wishes.” Id. at 75. The court found that the General Equity Judge properly admitted the document submitted by Jonathan Ehrlich as Richard Ehrlich’s Last Will and Testament.
Conclusion
While the Appellate Division held that the Will did not need to be signed, the facts of this case are very specific. There was a copy of the Will found which stated where the original Will was located. The decedent made his wishes known on several occasions which incorporated the Will. When Richard drafted and executed his original Will he also drafted and executed a healthcare directive and power of attorney, and the beneficiary of his Will was someone he communicated with regularly. However, this all could have been avoided if Richard Ehrlich had updated his Will in the years following the original drafting and his eventual death. If you do not have a Will you should speak with an attorney to draft a Will. If you already have a Will you should speak with an attorney every two to three years to update it. Had Richard Ehrlich updated his Will and informed someone of the new Will’s location, this most likely would have been avoided.
Sep 04
In the Part 1 we brought up the issues that can occur when someone passes away without signing a will. In this installment we find out how that document made its way through the court system.
The Procedural History
Following the verified Complaint filed by Jonathan Ehrlich and the Answer by Todd Ehrlich and Pamela Venuto and discovery, the General Equity Judge granted Jonathan’s Complaint and admitted the found copy entitled “Last Will and Testament” of Richard Ehrlich. As the Appellate Division stated, the General Equity Judge reasoned that
[S]ince Mr. [Richard] [sic] Ehrlich prepared the document, there can be no doubt that he viewed it. Secondly, while he did not formally execute the copy, his hand written notations at the top of the first page, effectively demonstrating that the original was mailed to his executor on the same day that he executed his power of attorney and his health care directive is clear and convincing evidence of his ‘final ‘assent’ that he intended the original document to constitute his last will and testament as required both by N.J.S.B.A. 3B:3-3 and [In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298, 310 (App. Div. 2010)] [sic].
Ehrlich at 69.
The Appellate Division heard the appeal on April 23, 2012, and decided the case on June 29, 2012. At issue before the Appellate Division was “whether the unexecuted copy of a purportedly executed original document sufficiently represents decedent’s final testamentary intent to be admitted into probate under N.J.S.A. 3B:3-3.” Id. at 69 – 70.
The Appellate Division’s Reasoning
The court began its decision by noting that the technical requirements for a Will are found in N.J.S.A. 3B:3-2. The court also acknowledged that N.J.S.A. 3B:3-2(3)(b) allows for an exception to the requirements, which allows for a document to be probated as a Will “if the signature and material portions of the document are in the testator’s handwriting.” Furthermore, N.J.S.A. 3B:3-2(3)(c) states that “Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator’s handwriting.”
Even if a Will does not fall in the rigid requirements of N.J.S.A. 3B:3-2, N.J.S.A. 3B:3-3 allows for a document to be treated as if it had been drafted under N.J.S.A. 3B:3-2 “if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will . . . .”
**Check back next time to find out the conclusion to this estate planning problem.
Aug 30
What happens when an Estate Attorney drafts a Will but never signs it? Should the will be enforceable? Should the courts allow the Will to be probated? Or, should the will be deemed invalid and barring the finding of another Will drafted by that attorney, should the estate be deemed intestate and be distributed according to the New Jersey rules of intestacy? These were the issues the Superior Court of New Jersey, Appellate Division decided in In re Ehrlich, 427 N.J. Super 64 (App. Div. 2012), certif. denied 213 N.J. 46 (2013), appeal dismissed, __ N.J. __ (2013).
The Facts of the Case
Richard Ehrlich (“decedent”) was a trust and estates attorney who practiced in New Jersey. On September 21, 2009 he died. When he passed away he had no wife or kids of his own. The only family he had was the three children of his deceased bother: Todd and Jonathan Ehrlich and Pamela Venuto. Richard was not in contact with Todd and Pamela and had not been for over twenty years. Richard and Jonathan were in contact, to the point where Richard informed his friends as late as 2008 that Jonathan was the person to contact should Richard become ill or die and that his estate should be left to Jonathan should anything happen.
When Richard Ehrlich died, a search commenced to locate his Will. Jonathan located a copy of a purported Will in a drawer in Richard’s house. On December 17, 2009 Jonathan filed a verified Complaint with the court asking to have the purported Will admitted to probate. Todd and Pamela filed an Answer objecting to probate the purported Will. Although other searches of Richard’s home and office were done, no other document resembling a Will was ever located.
The Will that Jonathan submitted to the court to probate was a detailed fourteen-page document entitled “Last Will and Testament.” The document was typed on legal paper with Richard’s name and law office address printed in the margin of each page. Richard Ehrlich’s signature was not on the document, but it did include a notation in the right-hand corner of the cover page in Richard’s handwriting that the “‘Original mailed to H.W. Van Scriver, 5/20/2000[.]’ [sic]” Id. at 68. Mr. Van Scriver was to be the Executor of the written document with Jonathan as the contingent Executor. Mr. Van Scriver was also named the Trustee of the purported Will and Jonathan and Michelle Tarter were contingent Trustees. Mr. Van Scriver died prior to the decedent and the original Will described in the purported Will found by Jonathan was never returned or located.
Although he never updated the original sent to Mr. Van Scriver, Richard Ehrlich had told friends publicly that he had a Will and wished to delete a specific bequest in the Will. Although the decedent told his friends of his intentions, he never effectuated any changes to the original Will sent to Mr. Van Scriver, and no such document was ever found.
**Check back next time to find out how the courts handled this situation.
