A Guide to Probate, Tax and Estate Litigation

(1)

90 Woodbridge Center Drive Suite 900 Box 10 Woodbridge, NJ 07095-0958 732-726-7422 www.wilentz.com

A Guide to

Probate, Tax and

Estate Litigation

90 Woodbridge Center Drive Suite 900 Box 10 Woodbridge, NJ 07095-0958

732-726-7422 www.wilentz.com

A Guide to

Probate, Tax and

Estate Litigation

(2)

A Guide to

Probate, Tax and

Estate Litigation

This guidebook was prepared by the Trusts and Estates Department of

WILENTZ, GOLDMAN & SPITZER, P.A.

90 Woodbridge Center drive

Woodbridge, nJ 07095 (732) 726-7422 Meridian Center i tWo industrial Way West eatontoWn, nJ 07724 www.wilentz.com

(3)

A GUIDE TO THE

PROBATE PROCESS

This booklet was written to give you an overview of the probate process and insight into probate litigation. While we have made an effort to explain the procedures in the simplest of terms, some -- particularly those who have just lost a loved one -- may find probate confusing and distressing.

Probate litigation adds tension and anxiety to bereavement. If you find yourself battling with family members or heirs, you may find this brief overview helpful. While we hope you find this booklet informative and enlightening, we recommend you consult with an attorney who specializes in estate matters to discuss your specific situation.

(4)

TABLE OF CONTENTS

1. THE PROBATE PROCESS ... 1

Collection of Assets ... 3

Taking of Inventory ... 3

Payment of Debts, Expenses and Taxes ... 4

Determination of Heirs ... 4

Obtaining Releases and Providing an Accounting ... 4

Distribution of Assets ... 4

2. COMMISSIONS ... 5

3. NEW JERSEY’S INHERITANCE AND ESTATE TAX ... 6

A. NEW JERSEY INHERITANCE TAX ... 6

Exemptions ... 8

B. INHERITANCE TAX WAIVERS ... 8

Personal Property ... 8

Real Property ... 10

Safe Deposit Boxes ... 10

C. NEW JERSEY ESTATE TAX ...11

4. FEDERAL ESTATE TAX ... 12

5. PROBATE LITIGATION - THE CONTESTED ESTATE ... 14 APPENDIX A ... 17

Executors’ and Administrators’ Commissions ... 17

Commissions of Trustees Under a Will and Guardians ... 18

APPENDIX B ... 21

Economic Growth and Tax Reconciliation Act of 2001... 21

(5)

(6)

1. THE PROBATE PROCESS

Probate is a term which most people have heard before but never had to consider until the trying time following the loss of a loved one. In essence, probate is a means by which a loved one’s wishes are carried out after his or her passing. During the difficult time following a loss, it is important to understand the probate process. For many people, probate is a daunting experience, with an unfamiliar procedure and new terminology. Several of the terms that one must be familiar with are “Decedent”, “Estate”, “Personal Representative” and “Beneficiary”. The “Decedent” is the person who has died. The Decedent’s “Estate” is made up of the assets standing in the Decedent’s name or passing to his estate by reason of his death. The “Beneficiaries” are those persons entitled to inherit the Decedent’s Estate. The “Personal Representative” is the person with the fiduciary obligation and legal authority to administer the Estate.

If a Decedent dies with a Will, probate is the process by which the Executor gets the Will certified as valid by the Court. The Executor is the person designated by the Decedent in his Will to administer his Estate. The process begins by the Executor filing the original Will, original death certificate and a fact sheet with the Court. By law, the Court must wait 10 days following a Decedent’s death before probate will be granted to allow time for the filing of objections to the Will. Assuming everything is in order, and the Will is self-proving, it can be probated without delay. A self-proving Will contains an Affidavit identifying the person making the Will (the Testator) and the witnesses to the Will. The affidavit is a notarized statement affirming that all the formalities of law were followed when the Will was signed. If the Will is not self-proving, at least one of the witnesses must appear at the Surrogate’s office to swear to the validity of the signatures before the Will is admitted to probate. The Surrogate is an elected official who has authority to attend to routine matters relating to Estates and who acts as the clerk of the Court in other matters.

The Surrogate’s Court in the county in which a Decedent was domiciled at the time of his death has jurisdiction over the Decedent’s estate. The location of a Decedent’s domicile has great significance as the laws concerning inheritance taxes, intestacy and spousal rights of election vary between the states. Generally a person’s domicile is where his primary residence is located and where he intends to return to when away. Although the probate process usually involves only one Court, if the Decedent owned real estate in another state an ancillary (secondary)

(7)

proceeding will also be required in each state in which he owned real estate. Once a Will is accepted for probate, the Surrogate will issue Letters Testamentary to the Executor. These Letters are the formal Court documents giving the Executor control over the Decedent’s estate and conferring upon him the authority to carry out the Decedent’s wishes in accordance with the Will. The Executor will usually have to present a certificate from the Surrogate that the letters remain outstanding in order to transfer assets of the Estate. Once the Will is probated, the Executor has 60 days to notify all the heirs and beneficiaries named in the Will of his appointment and of their right to have a copy of the Will on request.

If a Decedent dies intestate, meaning without a Will, a person having an interest in the estate must come forward to be appointed by the Surrogate. This process is known as Administration and the person appointed by the Court is known as the Administrator. In the case of intestacy, the procedure differs from that where there is a Will. In most cases a surety bond will be required. Also, before a person is appointed by the Court, all next of kin of the Decedent with equal or greater rights to the person applying must renounce their rights to be Administrator and approve the appointment of the applicant. The order of priority for being appointed Administrator is governed by law, and generally, the closest living relative is the one with priority. By way of example, the surviving spouse has first priority to be appointed, but if he or she renounces his or her right to appointment, a child or children may be appointed, assuming all the other children (those with equal rights to appointment) agree. This can sometimes be a contested and lengthy process. The Court will ultimately decide whom to appoint after hearing from all interested parties. In certain circumstances, the Court may decide that an independent third party should be named. Also, if the closest heirs do not commence proceedings, other heirs, or even creditors interested in collecting their debts, may do so. Once the decision is made as to who will act as Administrator, the Surrogate will issue Letters of Administration giving the Administrator the necessary authority to handle the affairs of the estate.

(8)

The estate over which the Personal Representative, whether Executor or Administrator, has authority is known as the probate estate and consists of those assets in the Decedent’s individual name, together with any insurance or benefits made payable to his or her estate. Joint assets such as bank accounts between husband and wife pass by operation of law to the surviving account holder. Likewise, insurance and other benefits payable to a designated beneficiary pass by operation of law outside the probate estate. It is important, however, to keep in mind the distinction between probate estate and taxable estate. For instance, although joint bank accounts pass by law to the surviving co-owner, such accounts are part of the Decedent’s estate for purposes of estate and inheritance taxes.

The Personal Representative is responsible for winding up the Decedent’s affairs and uses the authority of the Letters Testamentary or Letters of Administration to accomplish his responsibilities. The administration of an estate involves the collection and valuation of the Decedent’s assets, the payment of debts, expenses of administration and taxes, and the distribution of the remaining assets to the persons entitled thereto. This process is described as administering or settling the estate. This is an essential and important process. It clears the title to the Decedent’s property, settles legitimate debts, and protects the Personal Representative in making distribution of the estate to the persons entitled thereto. The most important responsibilities of the Personal Representative in settling the estate are briefly described below.

Collection of Assets

A fundamental job of every Personal Representative is to gain control over the Decedent’s assets so that bills and taxes can be paid and the remaining assets distributed as required under the Will or by state law. The Personal Representative must take care to minimize the likelihood of loss or damage to Estate assets.

Taking of Inventory

The Personal Representative must inventory the estate assets and put together a listing, or inventory, as of the dates on which the Personal Representative’s responsibility began and ended, for estate assets.

(9)

Payment of Debts, Expenses and Taxes

Expenses and debts must be paid as well as federal and state income, estate and inheritance taxes.

Determination of Heirs

The Personal Representative must determine the names, ages, and relationships of all immediate family members. In an intestacy the closest family members are the ones who are legally entitled to inherit the estate. If, however, others are named as beneficiaries under a Decedent’s Will, state law still requires that certain family members (those who would take in the absence of a Will) are formally notified that the probate

proceeding is taking place. _

Obtaining Releases and Providing an Accounting

Before making a distribution to any beneficiary of the estate, the Personal Representative should obtain a Release from that beneficiary. A Release is a legal document in which the beneficiary approves the actions of the Personal Representative and acknowledges having no future claim against the Personal Representative or the estate. Often the Release is combined with a Receipt, which is a document in which the beneficiary acknowledges receiving a specified distribution. Some beneficiaries may not sign off informally and will require an Accounting (a complete reconciliation of all funds that were received by the estate, how the funds were spent, and what funds are left) before signing a Release. At the request of a beneficiary, the Court will require a formal Accounting before releasing a Personal Representative.

Distribution of Assets

When all assets have been collected, all debts, taxes and expenses have been paid, and an informal or formal accounting approved, the remaining assets may be distributed to the persons entitled thereto.

The Personal Representative must determine the names, ages, and relationships of all immediate family members. In an intestacy the closest family members are the ones who are legally entitled to inherit the estate. If, however, others are named as beneficiaries under a Decedent’s Will, state law still requires that certain family members (those who would take in the absence of a Will) are formally notified that the probate proceeding is taking place.

(10)

2. COMMISSIONS

The Personal Representative is responsible for winding up the Decedent’s affairs and is entitled to compensation for services rendered in settling the estate. Such compensation is referred to as commissions. Commissions are governed by state law, although a Will or a Trust may provide for rates of compensation in excess of those statutorily prescribed. If provisions in a Will or Trust fix commissions, then those rates usually govern.

By law, Personal Representatives are entitled to commissions on all income earned by the estate at a rate of 6%. By way of example, income earned by the estate includes dividends on securities standing in the Decedent’s name, as well as interest on accounts held by the estate. A Personal Representative is also entitled to commissions on principal received at the following rates: 5% on the first $200,000 of estate assets, 3.5% on the next $800,000 and 2% on the excess. By way of example if the probate estate consists of real estate with a value of $300,000 and securities with a value of $400,000, the Personal Representative is entitled to corpus commissions in the amount of $200,000 at 5% plus $500,000 at 3.5%, or $27,500 in principal commissions.

In the event that there is more than one Personal Representative the statutes provide for an additional 1% of all principal for each additional fiduciary to be divided among all of them. However, no Personal Representative is entitled to receive more than that to which a single Personal Representative would be entitled. Thus, if there were two Personal Representatives for the $700,000 estate described above, they would split $34,500 -- ($27,500 plus $7,000 [1% of $700,000]). They could divide this amount between themselves as they deemed appropriate subject to the condition that neither could receive more than $27,500.

Commissions are chargeable to and payable from the Decedent’s estate. Commissions represent payment for services rendered and as such are includable in the Personal Representative’s taxable income in the year received. As a general matter, commissions may be paid without Court allowance although they may be reduced by the Court if a beneficiary demonstrates that the services rendered were materially deficient or that the actual pains, trouble and risk involved in settling the estate were substantially less than generally required for estates of comparable size.

(11)

Trustees named under a Will are also entitled to commissions for their services in administering Trusts. They are entitled to annual commissions on income and principal, as well as commissions on the termination of or distributions from the Trust. Trustee commissions are prescribed by statute, although the will or trust instrument can establish higher or lower rates. Corporate trustees can establish their own rates, which rates will be respected provided they are reasonable.

3. 3. NEW JERSEY’S INHERITANCE

AND ESTATE TAX

Depending upon the size of the Decedent’s estate, and who the beneficiaries are, estate taxes may be due. There are three levels of estate taxation to consider: New Jersey Inheritance Tax, New Jersey Estate Tax, and Federal Estate Tax.

A.

NEW JERSEY INHERITANCE TAX

The State of New Jersey imposes a transfer Inheritance Tax, at graduated rates, on property which passes from a Decedent to a beneficiary.

In many instances, if all of a Decedent’s property passes to a surviving spouse, children, stepchildren, parents, grandparents or grandchildren, it will not be necessary to file an Inheritance Tax return with the Division of Taxation. In such cases, if there was any real property in the name of the Decedent, a Form L-9 may be filed to release the State’s lien on the real property.

If a death occurs on or after January 1, 1985, property passing to a surviving spouse is entirely exempt from the tax. If a death occurs on or after July 1, 1988, property passing to surviving parents, grandparents, children, stepchildren or grandchildren is entirely exempt from the tax.

In essence, the revised New Jersey Transfer Inheritance Tax Act of 1985 provides for four classifications of beneficiaries.

• Fathers, mothers, grandparents, wives, husbands, child or children of the Decedent, adopted child or children, any issue of any child or legally adopted child of a Decedent, or

(12)

a mutually acknowledged child or stepchild, are all part of Class “A”, and are exempt from inheritance taxes.

• Brothers, sisters, daughters-in-law and sons-in-law, included in Class “C”, are exempt for the first $25,000. When the bequest is in excess of $25,000 and up to $1,100,000, they must pay 11%, up to $1,400,000 the tax is 13%, up to $1,700,000 the tax is 14%. Over $1,700,000 the tax is 16%. • Bequests for charitable or public purposes to the State of New

Jersey, an educational institution, church, hospital, orphans’ asylum, public library and certain other non-profit agencies also are exempt from inheritance taxes. They fall into Class “E”.

• All others, included in Class “D”, are exempt from taxation if the total amount is no more than $499. They pay a 15% tax on any amount up to $700,000 and 16% for any amount beyond that.

• Class “B” was eliminated from the law in an earlier revision in 1963.

The return should be filed with the Individual Tax Audit Branch, Inheritance and Estate Tax, in Trenton.

The return and associated tax are due eight months after the Decedent’s death.

An inheritance tax return must be filed and the tax paid on the transfer of real or personal property for:

• A resident Decedent for the transfer of real or tangible personal property located in New Jersey or intangible personal property wherever situated.

• A nonresident Decedent for the transfer of real or tangible personal property located in New Jersey. No tax is imposed on non-resident Decedents for intangible personal property wherever located.

(13)

A return must be filed whenever any tax is due or when benefits are passing to other than Class “A” beneficiaries. The tax is a lien on all property for 15 years, unless paid sooner or secured by acceptable bond. Interest on unpaid tax will accrue at the rate of 10% per annum beginning 8 months after date of Decedent’s death.

For up-to-date information about New Jersey’s Transfer Inheritance Tax laws, call (609) 292-5033, the New Jersey Inheritance Tax Office.

Exemptions

In addition to the exemptions listed under “Beneficiary Classes and Tax Rates”, no tax is imposed on:

• Transfers having an aggregate value of less than $500. • Life insurance proceeds paid to a named beneficiary. • Payments from the New Jersey Public Employees’ Retirement

System, the New Jersey Teachers’ Pension and Annuity Fund and the New Jersey Police and Firemen’s Retirement System.

• Federal Civil Service Retirement benefits payable to a Beneficiary other than the estate or the Executor or Administrator of a Decedent’s estate.

• Annuities payable to survivors of military retirees.

B.

INHERITANCE TAX WAIVERS Personal Property

a.

Waivers are not required for automobiles, household goods, accrued wages or mortgages, but these assets must be reported in the inheritance tax return filed.

b.

Under the current statute, a membership certificate or stock in a cooperative housing corporation held in the name of a Decedent and a surviving spouse as “joint tenants with

(14)

right of survivorship” is exempt. However, a waiver is required to transfer ownership to the survivor.

c.

In the estate of a resident Decedent, banks, savings and loan associations, and building and loan associations may release 50% of all funds on deposit to the beneficiary prior to the issuance of a waiver. The full amount on deposit as of the date of death of the Decedent must be listed in the inheritance tax return and will eventually require a waiver. This 50% procedure is referred to as a blanket waiver and is not available for the transfer of stocks and bonds. For a detailed explanation see N.J.A.C. 18:26-11.16.

d.

A Self-Executing Waiver, Form L-8, has been created for Class “A” beneficiaries in the estate of a resident Decedent. This form may be used in most cases to transfer bank accounts, stocks, and bonds in the following circumstances:

1) When transfers are to a surviving spouse in estates of Decedents’ dying on or after January 1, 1985, or

2) When transfers are to a surviving Spouse or any other Class “A” beneficiary in estates of Decedents dying on or after July 1, 1988. Proper use of this form may eliminate the need to file a formal Inheritance Tax return. However, the Form L-8 cannot be used for the transfer of real estate.

The completed Form L-8 is to be filed with the financial institution or transfer agent which will then be authorized to release the subject asset.

(15)

Real Property

a. Unpaid inheritance taxes constitute a lien on real property and tax waivers are required to transfer real estate. However, real property held by husband and wife as “tenants by the entirety” in the estate of the spouse dying first need not be reported and may be transferred without a waiver, regardless of the date of death.

b. A Request For A Real Property Tax Waiver, Form L-9 has been created for Class “A” beneficiaries in the estates of resident Decedents. When either of the following two conditions exist, this form may be used if the entire estate is untaxable and passing to Class “A” beneficiaries and the only reason to file a return is to obtain a waiver to transfer real property:

1) Transfers are to a surviving spouse in estates of Decedents dying on or after January 1, 1985 and the Decedent’s interest was in the name of the Decedent alone.

2) Transfers are to a surviving spouse or any other Class “A” beneficiary in estates of Decedents dying on or after July 1, 1988.

Use of this form may eliminate the need to file a formal inheritance tax return.

This form is to be filed with the Individual Tax Audit Branch, Inheritance and Estate Tax in Trenton. If the form is in order, the necessary waiver(s) will be promptly issued.

Safe Deposit Boxes

Safe deposit boxes are no longer inventoried by the New Jersey Division of Taxation. On September 30, 1992, the Division issued a blanket release in the form of a letter from the Director, Division of Taxation, to all banking institutions, safe deposit companies, trust companies, and other

(16)

institutions which serve as custodians of safe deposit boxes. The contents of the boxes may be released without inspection by the Division.

C.

NEW JERSEY ESTATE TAX

In addition to the inheritance tax, New Jersey imposes a separate estate tax. An estate may be subject to the New Jersey estate tax even though there is no New Jersey Inheritance Tax payable. For Decedents with a date of death prior to January 1, 2002 the New Jersey estate tax was designed to absorb the maximum credit for State inheritance, estate, succession or legacy taxes allowable in the Federal estate tax proceeding. It did not increase the estate’s total estate tax obligation.

The New Jersey estate tax was revised on July 1, 2002 and made to apply retroactively to Decedents dying after December 31, 2001. The revised New Jersey estate tax is de-coupled from the Federal estate tax.

The New Jersey estate tax is now imposed upon the transfer of the estate of every resident Decedent that would have been subject to a Federal estate tax under the provisions of the Internal Revenue Code in effect on December 31, 2001.

The following summarizes the filing requirements and important provisions of the revised estate tax:

• The person or corporation responsible for payment of the tax may choose the Form 706 method or the Simplified Tax System (Alternative) method of filing the New Jersey estate tax return. The Form 706 method is based upon the provisions of the Internal Revenue Code in effect on December 31, 2001 (2001 Federal estate tax return). The Simplified Tax System may only be used in those situations where a Federal estate tax return has not and will not be filed and is not required to be filed with the Internal Revenue Service. The Simplified Tax System is not intended for use in all estates. The Simplified Tax System requires that a Form IT-Estate be prepared and filed along with a New Jersey inheritance tax return (Form IT-R) completed in accordance with the provisions of the inheritance tax statute in effect on December 31, 200l. • A New Jersey estate tax return must be filed if the Decedent’s

(17)

gross estate as determined in accordance with the provisions of the Internal Revenue Code in effect on December 31, 2001 exceeds $675,000. It must be filed within nine months of the Decedent’s death.

• The New Jersey estate tax is due on the Decedent’s date of death and must be paid within nine months.

Unlike the prior New Jersey estate tax, the revised estate tax is a lien on all the property of a Decedent. Additionally, the statute provides that the Decedent’s property may not be transferred without the written consent of the Director. The tax waiver form has been modified to release both the inheritance and the estate tax lien and permit the transfer of the property listed thereon for both inheritance and estate tax purposes. Generally, regulations which previously pertained only to inheritance tax waivers have been amended to apply also to estate tax waivers.

For estates of Decedent’s dying on or after March 1, 1992, interest accrues at the rate of 10% per annum on any New Jersey estate tax not paid within nine months of the Decedent’s date of death unless an extension of time to file the Federal estate tax return is granted. The Director of the Division of Taxation may then reduce the interest rate of 6% per annum on any New Jersey estate tax not paid within eighteen months of the Decedent’s death or within 60 days of the final determination of the Federal estate tax by the Federal authorities, whichever is later.

4. FEDERAL ESTATE TAX

At the time of death, a Federal estate tax is imposed on the transfer of property by a Decedent. Property transferred at death includes the property owned in one’s sole name at death. This might include, for example, a residence, stocks, bonds and bank certificates of deposit. Also included are items of personal property such as household furnishings and jewelry. Property that is not owned in one’s sole name, or directly at the time of death may also be subject to tax for Federal estate tax purposes. This will include property placed into a trust that can be revoked.

The purpose of the Federal estate tax is to impose tax on the transfer of wealth at death, without regard to how that property transfer is accomplished. For example, if anyone will succeed to property ownership

(18)

at the time of death by reason of the property being held as “joint tenants with the right of survivorship”, and purchased with no contribution by the other joint owner, the estate tax will apply. Similarly, if one holds “incidents of ownership” (for example, the right to designate the beneficiary) in an insurance policy on his life, the proceeds will be includable in the gross estate even if the proceeds are not payable to the estate. Also includable will be property previously transferred in trust but over which one retained certain rights and powers under the trust instrument. Some limited types of property will be included even where one has given up all rights in property, if the termination of such rights occurs within three years of death.

In 2002 and 2003, if there were no lifetime taxable gifts, the first $1 million of assets was protected from estate taxation. This is accomplished through the availability of an “applicable credit amount.” This tax credit is also available during lifetime and, accordingly, may have been partially or completely used by gifts made during life. If completely used during life, the credit would not be available to protect assets transferred at death from the application of the Federal estate tax. The amount (known as the “applicable exclusion amount”) that can be protected from estate tax under this credit increased gradually until it reached $3.5 million in 2009, the final year before the estate tax was to terminate in 2010. Note that the amount excluded by the credit for lifetime gift tax purposes remains at $1 million, so more credit is available for estate tax purposes than for gift tax purposes. At this time, in the Spring of 2010, it seems unlikely that the repeal of the Federal Estate Tax will be permanent and it is more likely that the amount excluded will remain at $3.5 million.

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

Common causes of probate litigation exist when:

1) A Will offered for probate is challenged as invalid because it was the result of fraud, duress, mistake or undue influence exerted upon the Testator;

2) there was no clear succession for the family business;

3) there was not enough money to pay the taxes;

In 2002 and 2003, if there were no lifetime taxable gifts, the first $1 million of assets was protected from estate taxation. This is accomplished through the availability of an “applicable credit amount.” This tax credit is also available during lifetime and, accordingly, may have been partially or completely used by gifts made during life. If completely used during life, the credit would not be available to protect assets transferred at death from the application of the Federal estate tax. The amount (known as the “applicable exclusion amount”) that can be protected under this credit increased gradually until it reached $3.5 million in 2009, the final year before the estate tax was to terminate in 2010 and be replaced with a carryover basis regime. See Appendix B. Note that the amount excluded by the credit for lifetime gift tax purposes remained at $1 million, so more credit was available for estate tax purposes than for gift tax purposes. In December 2010, Congress reinstated the estate tax for 2010 with an exemption of $5,000,000, but allowed estates to elect to have the carryover basis regime apply instead. Congress also temporarily extended the new 2010 estate tax for two years, until December 31, 2012, but with a $5,000,000 gift tax exemption and no carryover basis provision. In 2012, Congress made the estate and gift tax exemption of $5,250,000 (adjusted for inflation in 2013) permanent, (increased to $5,340,000 in 2014 due to the inflation adjustment) with a maximum estate tax bracket of 40%. at the time of death by reason of the property being held as “joint tenants with the right of survivorship”, and purchased with no contribution by the other joint owner, the estate tax will apply. Similarly, if one holds “incidents of ownership” (for example, the right to designate the beneficiary) in an insurance policy on his life, the proceeds will be includable in the gross estate even if the proceeds are not payable to the estate. Also includable will be property previously transferred in trust but over which one retained certain rights and powers under the trust instrument. Some limited types of property will be included even where one has given up all rights in property, if the termination of such rights occurs within three years of death.

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

(19)

13 5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

14

4) the Will failed to address distribution of the jewelry or other heirlooms;

5) the named Executor isn’t trusted or respected by other family members;

6) a child was omitted, or is to receive less than the other children;

7) children from the first marriage object to the second spouse’s interest in the estate;

8) the second spouse wants to separate financial ties from children from the first marriage;

9) the titling of the assets are inconsistent with the terms of the Will;

10) the beneficiaries do not receive an accounting of the estate and believe there was more wealth than the inheritance received.

If litigation is commenced, it is generally filed in the county where the Decedent resided and is often commenced with an Order to Show Cause which seeks to: 1) overturn a Will offered for Probate; 2) remove an Executor; or 3) demand an accounting. Overturning a Will is most often supported by a claim that undue influence caused the Decedent to execute a Will that did not reflect his or her intent. Alternatively, a claim is often filed that the Decedent did not have the requisite cognitive mindset or capacity to know what he or she was signing, who the natural objects of his or her bounty are or how much wealth he or she had. Fraud is another cause of action often alleged in these cases.

There are times when estate or probate litigation cannot be avoided. However, litigation can often be avoided if: 1) communication can be established by the family members, with the Executors and Trustees and their respective professionals (attorney and accountant) from the beginning of the probate process; 2) issues are raised by beneficiaries or their professionals with proposed resolutions rather than threats; 4) the Will failed to address distribution of the jewelry or

other heirlooms;

There are times when estate or probate litigation cannot be avoided. However, litigation can often be avoided if: 1) communication can be established by the family members, with the Executors and Trustees and their respective professionals (attorney and accountant) from the beginning of the probate process; 2) issues are raised by beneficiaries or their professionals with proposed resolutions rather than threats;

14

13 5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

13 5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

13 5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

(20)

3) regularly scheduled meetings with clear agendas are part of the process; 4) reasonable expectations and timelines are established early in the probate process; and 5) the process concludes with an accounting.

Accomplishing these objectives takes patience, understanding and perseverance. One must put emotions aside, roll up the sleeves and do what has to be done. Experienced lawyers, judges and mediators often take time with family members to help find middle ground and settle all the disputes. If litigation is on the horizon, you should find an estate attorney who will not only competently litigate, but can help you settle the case.

Allegations of fraud, lack of testamentary capacity, and undue influence now seem commonplace particularly in Wills wherein a child was omitted or treated differently from other children, a proffered Will provided a different dispositive scheme than a prior Will, or a sizeable bequest was made to a charity, paramour or friend. Examples of unnatural Wills, deathbed Wills, or Wills executed in secrecy fill both law libraries and Court dockets. What makes undue influence a staple used by probate litigators is that such claims can arise in many different scenarios including both well-intentioned acts as well acts of coercion. Indeed, undue influence is one of the most common challenges to the validity of a Will. One study noted that 74% of all Will contests included allegations of undue influence. Jeffrey A. Schoenblum, Will Contests - An Empirical Study, 22 Real Prop., & Trust J. 607, 646-652 (1987).

Although there is no way to completely remove the possibility of a Will contest on the grounds of undue influence, the precautions set forth above might deter or minimize the likelihood of success of a Will contest.

14

15

3) regularly scheduled meetings with clear agendas are part of the process; 4) reasonable expectations and timelines are established early in the probate process; and 5) the process concludes with an accounting.

Accomplishing these objectives takes patience, understanding and perseverance. One must put emotions aside, roll up the sleeves and do what has to be done. Experienced lawyers, judges and mediators often take time with family members to help find middle ground and settle all the disputes. If litigation is on the horizon, you should find an estate attorney who will not only competently litigate, but can help you settle the case.

Allegations of fraud, lack of testamentary capacity, and undue influence now seem commonplace particularly in Wills wherein a child was omitted or treated differently from other children, a proffered Will provided a different dispositive scheme than a prior Will, or a sizeable bequest was made to a charity, paramour or friend. Examples of unnatural Wills, deathbed Wills, or Wills executed in secrecy fill both law libraries and Court dockets. What makes undue influence a staple used by probate litigators is that such claims can arise in many different scenarios including both well-intentioned acts as well acts of coercion. Indeed, undue influence is one of the most common challenges to the validity of a Will. One study noted that 74% of all Will contests included allegations of undue influence. Jeffrey A. Schoenblum, Will Contests - An Empirical Study, 22 Real Prop., & Trust J. 607, 646-652 (1987).

Although there is no way to completely remove the possibility of a Will contest on the grounds of undue influence, the precautions set forth above might deter or minimize the likelihood of success of a Will contest.

(21)

NOTICE

Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision.

If this guidebook is inaccurate or misleading, report same to the Committee on Attorney Advertising, Hughes Justice Complex, CN 037, Trenton, NJ 08625.

(22)

APPENDIX A

EXECUTORS’ AND ADMINISTRATORS’ COMMISSIONS

The applicable statutes are laid out below.

Income commissions (3B:18-13)

Commissions in the amount of 6% may be taken without Court allowance on all income received by the fiduciary. For the purposes of this section, income which is withheld from payment to a fiduciary or fiduciaries pursuant to any law of this State, or of the United States, or any other state, country or sovereignty, or of any political subdivision or governmental unit of any of the foregoing, requiring the withholding for income tax or other tax purposes, shall be deemed to be income received by the fiduciary, and shall be subject to income commissions as provided in this section in the same manner as if actually received by the fiduciary.

Corpus commissions (3B:18-14)

Commissions on all corpus received by the fiduciary may be taken as follows:

5% on the first $200,000 of all corpus received by the fiduciary; 3.5% on the excess over $200,000 up to $1,000,000;

2% on the excess over $1,000,000; and

1% of all corpus for each additional fiduciary provided that no one fiduciary shall be entitled to any greater commission than that which would be allowed if there were but one fiduciary involved.

Such commissions may be reduced by the Court having jurisdiction over the estate only upon application by a beneficiary adversely affected upon an affirmative showing that the services rendered were materially deficient or that the actual pains, trouble and risk of the fiduciary in settling the estate were substantially less than generally required for estates of comparable size.

(23)

COMMISSIONS OF TRUSTEES UNDER A WILL AND GUARDIANS

Income commissions (3B:18-24)

Commissions in the amount of 6% may be taken without Court allowance on all income received by the fiduciary. For the purposes of this section, income which is withheld from payment to the fiduciary pursuant to any law of this State, or of the United States, or any other state, country or sovereignty or of any political subdivision or governmental unit of any of the foregoing, for income tax or other tax purposes, shall be deemed to be income received by the fiduciary, and shall be subject to income commissions as if actually received by the fiduciary.

L.1981, c. 405, § 3B:18-24, eff. May 1, 1982.

Taking annual amounts on account of corpus commissions (3B:18-25) a. Fiduciaries may annually, without Court allowance, take commissions on corpus (including accumulated income which has been invested by the fiduciary) in the amount of $5.00 per thousand dollars of corpus value on the first $400,000 of value of corpus and $3.00 per thousand dollars of the corpus value in excess of $400,000.

b. Notwithstanding the provisions of subsection a. of this section, if the fiduciary is a banking institution, foreign bank or savings and loan association authorized to exercise fiduciary powers, the fiduciary shall be entitled to such commissions as may be reasonable.

c. Notwithstanding the provisions of subsection a. of this section, a fiduciary may take a minimum commission of $100.00 annually.

d. The value of the corpus for the purpose of this section shall be the “presumptive value” as defined in N.J.S.3B:18-18 or, at the option of the fiduciary, the value at the end of the period.

e. Upon application of a person interested in the trust or guardianship, a court may review the reasonableness of the commissions

(24)

of the fiduciary, provided, however, the fiduciary shall be entitled to receive at least the compensation provided for all fiduciaries as set forth in subsections a. and c. of this section.

L.1981, c. 405, § 3B:18-25, eff. May 1, 1982. Amended by L.1988, c. 165, § 1, eff. Nov. 29, 1988; L.1999, c. 159, § 11.

Taking annual amount on accounts of corpus commissions; two or more fiduciaries (3B:18-25.1)

If there are two or more fiduciaries, the amount of the annual commissions taken pursuant to N.J.S. 3B:18-25 may equal the commissions which may be taken pursuant to that section when there is but one fiduciary, plus one-fifth of the commissions for each fiduciary more than one. No one fiduciary shall be entitled to any greater commission than that which would be allowed if there were but one fiduciary involved.

L. 1989, c. 7, § 1, eff. Jan. 27, 1989.

Corpus commissions on termination of trust, guardianship or upon distribution of assets (3B:18-28)

In addition to the annual commissions on corpus, upon termination of the trust or guardianship, or upon distribution of assets from the trust or guardianship, the fiduciary may take a commission on corpus distributed, including accumulated income which has been invested by the fiduciary. The value of the corpus for the purpose of computing the commissions shall be the “presumptive value” or, at the option of the fiduciary, the value at the time of distribution, as defined in N.J.S. 3B:18-18. The amounts of the commissions to be taken are as follows:

a. If the distribution of corpus occurs within 5 years of the date when the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually taken by the fiduciary, plus an amount equal to 2% of the value of the corpus distributed;

b. If distribution of the corpus occurs between 5 and 10 years of the date when the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to

(25)

N.J.S. 3B:18-25, but not actually received by the fiduciary, plus an amount equal to 1 1/2% of the value of the corpus distributed;

c. If the distribution of corpus occurs more than 10 years after the date the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually received by the fiduciary, plus an amount equal to 1% of the value of the corpus distributed; and

d. If there are two or more fiduciaries, their corpus commissions shall be the same as for a single fiduciary plus an additional amount of one-fifth of the commissions for each additional fiduciary.

A Guide to Probate, Tax and Estate Litigation

A Guide to

Probate, Tax and

Estate Litigation

A Guide to

Probate, Tax and

Estate Litigation

A Guide to

Probate, Tax and

Estate Litigation

ADVERTISEMENT

A GUIDE TO THE

PROBATE PROCESS

1. THE PROBATE PROCESS

2. COMMISSIONS

3. 3. NEW JERSEY’S INHERITANCE

AND ESTATE TAX

A.

B.

a.

b.

c.

d.

C.

4. FEDERAL ESTATE TAX

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

13

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

14

14

14

14

13

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

13

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

13

5. 5. PROBATE LITIGATION -

THE CONTESTED ESTATE

14

15