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News & Info

What is a Will Contest?

Jun 20 2016
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Written by Jason Henbest, Esq. and Brittany Saxton

The potential for a Will contest is one of the most dreaded parts of the inheritance process.  A Will contest is a lawsuit that challenges the validity of a Last Will and Testament, and it can be filed before or after the Will is admitted to probate. Will contests are commonly known to the public in cases which involve celebrity figures, such as the case of the late Anna Nicole Smith and her elderly Texas millionaire husband, Howard Marshall.  However, each state has standards to determine whether a Will is valid or not in the probate process.  It is important to know these standards as an executor, testator and beneficiary to a Will.

Changing Permanent Residence: State Tax Auditors Suspicious of Retirees

Jun 20 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

Living in the Northeast is considered to some a blessing and a curse.  We are fortunate enough to experience all four seasons, yet sometimes the burden of maintaining a home in the winter months is too large.  The common trend for retirees is to have another residence in a warmer, southern state to reside for the cold, winter months.  However, when retirees begin to claim this second state as their permanent residence, state tax auditors become suspicious of these claims.

Appointing a Guardian for Minor Children

Jun 20 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

Having children under 18 is a busy time for parents.  Taking care of the day-to-day can sometimes be overwhelming in itself.  However, it is important not to forget that a part of caring for your children is making sure that your children’s future interests are protected.  A major component of your children’s future care is ensuring that they will be adequately cared for in the event of you or your partner’s death.  

Parents can appoint a guardian—a substitute caretaker—of their minor children in a Will.  This concern over the future care of minor children is the number one reason parents want and need to execute a Will.  Without a Will, if both parents pass away the court has the authority to appoint a guardian.  If only one parent passes away, custody of a child automatically passes to the surviving parent.  Yet, the future care of your children is too big a choice to leave that up to uncertainty.  Naming a guardian in a Will can be scary, knowing there is the potential that you may not be around for the entirety of your minor child’s life.  However, as the natural guardian of your children, you have a personal right of custody until your children reach the age of majority.  As long as a minor child is under 18 years old, the appointed guardian in your Will has the same expected duties of a natural guardian.

Leaving Personal Property in Your Will: How to Avoid Future Family Feuds

Jun 20 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

Upon a person’s death, family members have expectations regarding the possessions they hope to inherit.  These expectations range from mom’s favorite cooking apron to dad’s $80,000 classic car.  Some of the items beneficiaries argue over have sentimental value.  However, more often then not, the major dispute is over money.  Therefore, it is important to be proactive in considering how you can keep your family from feuding over your Will in the future.  

If you want to ensure that your family stays out of court when your Will goes into effect, it is important to know that there are several options.  First and foremost, if you want your oldest daughter to get the beautiful Omega watch she has been admiring for ten years, your first option is to make a lifetime gift, give your daughter possession of the watch, and document that the watch was a gift.  However, if you do not want to part with the watch during your lifetime, your second option is to include the watch in your Will.  Some Wills contain a separate page titled “gifts” that you do not have to fill out during the signing, but rather when you feel the time is right.  This list includes items that can be directed to particular recipients.

What is a Fiduciary?

Jun 20 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

Sometimes in law, the legalese is tough to understand.  Yet, some legal terms do not have simpler synonyms. When there is a necessity to deal with the law, it is very important to understand the meaning of the term you are working with.  One of these seemingly complex, but in fact easy, legal terms is fiduciary.  Derived from the Latin fiducia, meaning “trust,” a fiduciary is a person who has the power, responsibility and obligation to act on behalf of another.  A fiduciary can be a person or an institution.  Some common fiduciaries include business advisers, bankers, stockbrokers, accountants, financial advisors, mortgage brokers, real estate agents and attorneys.  These individuals are hired to advise and guide you in your best interests, setting aside their own personal motives and goals.

Has the Volume of Estate Litigation Increased?

Jan 25 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

The media today is plastered with images and news stories of disputes over a late celebrity’s estate.  There are innumerable counts of displeased beneficiaries vying for a larger inheritance, and then the dispute is brought to court. Can we accredit the media’s focus on these estate disputes as the sole reason for its apparent rise in litigation? Or are there other contributing factors to the rise in estate litigation? 

The answer cannot be pinpointed to a single factor.  In addition to a media focus on estate litigation, consider the increase in life span due to advances in medicine. Unfortunately, physical longevity does not directly correlate to a keen mind.  The aging population is prone to dementia and Alzheimer’s, which raises a capacity issue in altering an estate plan.  Dementia and Alzheimer’s may disqualify the principal of an estate plan to be of sound mind or memory, thus making it difficult to make or change important estate plans when time is of the essence. 

How to Distinguish Medicare from Medicaid

Jan 23 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

Medicare and Medicaid are well known terms in American health care.  However, they are often confused or deemed synonymous with each other. While both Medicare and Medicaid deal with health care, they provide two different services.  As potential recipients of either service, or as someone simply looking to become more informed, this article provides a brief synopsis of Medicare, Medicaid, and their involvement in the law. 

Medicare is a nationwide social insurance program that uses private insurance companies to provide health insurance to Americans 65+ who have worked and paid into the system. This federal program also provides some health insurance to people who are younger than 65 and disabled. Medicare was part of President Johnson’s agenda during the Great Society in the mid-1960s. The Social Security Act was modified to include Medicare, which is divided into 4 parts: A, B, C and D. Part A of Medicare covers hospital visitation, including the food, room, and tests. Part B covers outpatient care, including visits to doctors and medical equipment—basically health care services and equipment not covered under Part A. Part C falls into the Medicare Advantage plans, a supplement that ensures private companies provide health plans to recipients. Finally, Part D covers prescription drugs plans, allowing anyone eligible for Part A or B to be covered under Part D.  Parts C and D are subject to a separate, privately paid fee. 

Title and Homeowners Insurance: Knowing the Difference, Why You Need Both

Jan 18 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

In today’s world, the word insurance is used in various capacities.  Car, travel, and life insurance are popular ways to protect yourself and your assets.  There is also insurance available for real property, as all home purchasers know.  For new prospective buyers, it is important to familiarize yourself with the types of insurance involved with real estate.

Two common types of insurance involved with a home purchase are title insurance and homeowner’s insurance.  Each type of insurance serves different functions.  Title insurance involves claims against the buyer’s ownership of the property.  Homeowner’s insurance protects loss or damage to the property itself and claims made against the owner of a property for injuries.  Even though these insurances serve different purposes, some people still question: do I really need to have both? 

Homeowners are strongly encouraged to purchase title, on top of homeowner’s insurance, for numerous reasons.  Yes, homeowner’s insurance covers the cost of physical damage to the property—such as theft, vandalism, and injury—but title insurance ensures the future sale of a property.  While homeowner’s insurance provides financial protection against disaster, it does not provide financial protection against a smooth transaction on the future sale of your home.  Not every person, nor every family, wants to live in the same place their whole lives.  Title insurance guarantees true entitlement to the property, effectively preventing anyone else from claiming title to the property where your home is located.  In order for the current buyer, and potential future seller, to be protected against liens on the property, title insurance is essential.

In the legal and financial role as a homeowner, learn to understand how both title and homeowner’s insurance can protect you.  Whether you are purchasing a home for the first or fifth time, come into our Barnegat office to speak with an experienced real estate attorney about the real estate process today. 

Forgetting to Change a Will in the Event of Divorce

Jan 04 2016
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Written by Jason C. Henbest, Esq. and Brittany Saxton

Married couples that make estate plans typically designate their spouse as the primary beneficiary and executor of their Will. When creating their estate plans, most couples do not have a reason to believe they will end up separated. But unfortunately, some couples decide they have irreconcilable differences and end up getting divorced.

In the case of divorce, it is recommended that each individual update their estate plan with a qualified attorney to recognize the significant change that has taken place. However, there have been cases where a client fails to update their estate plan, and at the time of death everything is left to the ex-spouse. New Jersey has statute N.J.S.A. 3B: 3-14 which states that in the event of divorce, provisions that once benefitted the ex-spouse are essentially dissolved as if the former spouse disclaimed the bequests. In this case, the bequests pass over the spouse and are divided among the remaining beneficiaries. The same is true in the case of having named an ex-spouse as executor of a Will; the successor executor would be the primary point of contact to probate the Will. Statute N.J.S.A. 3B:3-14 also revokes the ex-spouse’s beneficiary designation to life insurance claims, as well as survivorship rights in jointly held property.

While a divorce nullifies the ex-spouse as a beneficiary of the estate, life insurance, executor of a Will, and survivorship rights of property, a divorce does not remove former spouses from inheriting retirement plans. This is one of many reasons that it is crucial to keep estate plans up to date amidst major life changes. The law intends to protect people, but it does not serve as a replacement for the personal responsibility of updating estate planning documents and beneficiary designations.

It is never too early to make sure you are creating an estate plan. Regardless of the extent of your assets, having your wishes in writing will save you and your loved ones from future headaches. Whether you are recently divorced or are similarly interested in creating new or reviewing your estate planning documents, come into our Barnegat office to speak with a qualified attorney about your estate plan, today.

Why Homeowners Choose to Lease

Dec 23 2015
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Written by Jason C. Henbest, Esq. and Brittany Saxton

Becoming a homeowner is a big undertaking. And sometimes, to ease the burden of homeownership, many homeowners decide to rent all or part of their property to prospective tenants. Most homeowners rent a portion of their space to relieve the financial burden of a costly mortgage payment. However, others use the increased income from a tenant’s rental payments for vacations, home renovation projects, or retirement funds. Whatever the reason behind a homeowner’s decision to rent out space, it is important to understand the legal implications of entering a landlord-tenant agreement, especially if this is your first time being a landlord.

Each state has unique landlord-tenant laws. In New Jersey, the State Department of Community Affairs has an abundance of information and paperwork regarding landlord-tenant information (see link below). The Legal Services of New Jersey also has a helpful website for understanding the legality behind every facet of landlord-tenant relationships (see additional link below). Likewise, realtor associations may be able to provide the appropriate paperwork. 
However, your most valuable resource is a well-qualified attorney. Lawyers who are familiar with landlord-tenant law can provide you with information regarding leases, rents, security deposits, potential evictions, and the like. Come to our Barnegat office to discuss your options—and the appropriate course of action—as a potential landlord, today!