ESTATES & TRUSTS
Business owners and executives face the issue of estate and asset protection planning so that they can transfer wealth at minimum tax cost both during life and upon death. Kulzer & DiPadova, P.A. designs and implements tax-saving strategies for estates of all sizes. The firm also counsels fiduciaries and represents beneficiaries of estates and trusts.
The most common areas within Estates & Trusts…
“Estate planning” is the process of arranging your affairs to minimize aggravation and stress to your family at a time of need. Typically, an “estate plan” will involve the creation of several legal documents to implement the plan. One common document is a Last Will and Testament which applies after an individual passes away. In addition, most clients will also execute an Advance Directive for Health Care and a General Durable Power of Attorney to supplement the plan and insure that the assets or the decision making process can be accessed at a critical point in time. Unlike a Last Will, these documents apply during life and terminate at death. In some estate planning clients will consider the execution and possible funding of a Revocable or “Living” Trust to supplement the plan.
Estate Planning Counseling
The process of counseling clients with “estate planning” and assistance with the legal documents to implement the plan represents a very large segment of the Kulzer & DiPadova practice. The transfer taxes that can be imposed on an estate represent the significant source of “aggravation” to clients in making plans to transition their estates from generation to generation. The most common transfer “tax” (e.g., taxes imposed on wealth transfers) are federal estate, New Jersey estate and the New Jersey or Pennsylvania inheritance taxes. Thus, there are many situations where a tax attorney’s advice will play a role in the estate plan. The “estate plan” can also include non tax issues such as “asset protection” estate planning, “business succession” planning and long term testamentary planning.
Probate & Trust Administration
A significant part of the Kulzer & DiPadova law practice involves Probate & Trust Administration to minimize aggravation and stress upon the death of a loved one. Since estate planning represents a large portion of our practice, we are aptly suited to assist in the probate and trust administration process. A well devised estate plan will not eliminate the emotional aspect of the estate administration process; however, our legal team can assist with the maze of filing requirements and details to be accomplished in order to ensure that the assets reach their intended goal thus accomplishing the wishes of the testator without undue expense.
Probate & Trust Administration; State Law controls disposition of assets…
In New Jersey, the “probate” system is not Court supervised. The term “probate” simply means the process by which State law controls disposition of assets out of a decedent’s individual’s name and into the name of the rightful heir. Under the New Jersey practice, the process of “probate” is handled by the decedent’s family without the necessity of Court intervention. Each county has an elected official, the “Surrogate”, and the Surrogate and their staff in each of the counties are well equipped to provide the necessary documentation in order to assist the family with the transfer of a decedent’s assets. However, in the event of complexity or contest, the Surrogate’s Court in New Jersey will lose jurisdiction over a matter, meaning the dispute must be settled by a Court. Nevertheless, in the vast majority of estate administration situations, the probate process can be a relatively smooth and easy affair. The role of our firm is to assist in the process and assist with tax filings.
Trusts can be either Revocable or Irrevocable
Our staff members are also very familiar with the administration requirements for all types of trusts. Trusts can be either revocable or irrevocable, charitable or non-charitable or, in tax jargon – “simple” or “complex”. In each circumstance, our attorneys and staff members are familiar with the steps necessary to administer a trust at its various stages and, depending upon the need, we can either assist with the tax filing requirements or assist the client’s accountant with the necessary tax and reporting obligations depending upon the nature and purpose of any given trust.
Will Disputes & Estate Litigation
Will Disputes & Estate Litigation following the death of a loved one only adds to an emotionally stressful time. Kulzer & DiPadova resolves issues in an amicable manner amongst the named beneficiaries. However, in a few instances, a dispute can arise concerning whether the final Last Will and Testament of the decedent truly represents such individual’s final wishes. In these instances, a Will Contest may be initiated which challenges the validity of the decedent’s Last Will and Testament.
Will Disputes & Estate Litigation and Representing Beneficiaries
At Kulzer & DiPadova, P.A., we have extensive experience in representing beneficiaries who want to challenge a Will as well as beneficiaries who feel the Will should be upheld. The most common challenges to a Will include allegations of undue influence as well as questions concerning the mental capacity of the decedent at the time the Will was executed. Other issues such as the decedent’s probable intent, the existence of a mistake and tortious interference in a beneficiary’s rightful bequest are sometimes also included in estate litigation.
We recognize and understand the emotional turmoil estate litigation engenders among family members. We always attempt to resolve these difficult issues through compromise and settlement. However, if our attempts are not successful, our attorneys and staff of estate administration paralegals will competently and vigorously represent our clients through the completion of the litigation process.
Conservatorships & Guardianships
Frequently, aged individuals become incapacitated and unable to tend to their daily living needs and are without a valid Power of Attorney. In such cases, a Complaint may be filed for Guardianship over the person and/or property. The Complaint will need to include two Doctors’ Affidavits which state that the individual is not competent to make his or her own decisions regarding his or her personal or financial affairs and a Certification of their assets. Once the Complaint is filed, the Court will appoint an attorney to represent the individual that is alleged to be incapacitated.
At the Guardianship hearing, the Court will determine whether or not the alleged incapacitated individual is incapacitated. In the event the Court finds that the individual is incapacitated, the Court will determine whether or not the filing party is an appropriate person to be the Guardian. Once appointed, the Guardian of the person and property of the incapacitated will then be responsible for making personal, medical, and financial decisions as prescribed in the Court decision. The decision making authority may be limited and must be made for and in the best interests of the incapacitated individual.
A Conservatorship is typically more limited than a guardianship. The Conservatorship is a relationship between a caregiver and an individual who cannot make decisions for himself or herself, perhaps because of dementia or that the affairs of the Conservatee are more sophisticated than the mental capacity of the Conservatee can handle. Unlike a Guardianship, a Conservatorship does not require a determination of incapacity. The Court determines that the Conservatee’s decision-making abilities are impaired to such an extent that he or she cannot properly manage financial or personal affairs.
Guardianship & Conservatorship Litigation
Senior citizens face increasing physical and mental impairments as the population of that age group grows. Careful planning can protect a Senior’s estate assets against dissipation. Seniors can use revocable living trusts and powers of attorney to manage their assets. However, many Seniors fail to make such plans, or the plans prove to be insufficient. As a result, court-imposed decision-making, such as a Guardianship or Conservatorship, may be necessary.
Guardianship & Conservatorship Litigation After a Passing
When an individual becomes incapacitated and can no longer manage his or her affairs or take care of himself or herself, family members or other concerned individuals may ask the Court to protect the incapacitated individual by appointing a Conservator or Guardian. A similar proceeding for developmentally disabled or mentally ill individuals allows parents or family members to ask the Court for the appointment of a Guardian of the disabled person. In cases in which a minor is to receive a gift, inheritance, personal injury award, etc., it may be necessary that his or her parents (or other responsible adult) be appointed by the Court as Guardian of the minor’s estate. In situations where a minor’s parents die or their parental rights are terminated, the Court may appoint a Guardian of the minor.
Ordinarily, these Conservatorship and Guardianship proceedings are uneventful and uncontested. However, in some cases, disputes arise among family members or other interested persons.
Challenging an Appointment
Contested Conservatorship and Guardianship cases may involve: challenging the appointment of a sibling or other person as unfit; challenging the incapacitation of an individual; limiting the scope of the authority of a Conservator or Guardian; and seeking to have a Guardianship or Conservatorship revoked because of financial abuse, emotional abuse or failure to care for the ward.
Guardianship and Conservatorship proceedings require a formal complaint to be filed with the Court and may require subpoenas, depositions and a trial. Additionally, certifications from two medical doctors or psychologists are required and the Court will appoint counsel for the alleged incapacitated individual.