Wills, Trusts, Estates and Probate

pageImage7Dilts & Koester’s practice area of wills, estates, trusts and probate deals with all kinds of matters related to estate planning, preparation of “simple” and complex wills and trusts, estate administration and elder care considerations dealing with nursing homes, Medicaid qualifications, and other life style concerns.

The purpose of estate planning is to preserve and protect assets, to prepare for disability, and to carry out a person’s wishes for the disposition of his or her property. Proper estate planning ensures that a client’s wishes are carried out during life and at death. The goal is to ensure the assets pass to whom the client wants, when the client wants, and under the circumstances the client wants, in a tax-efficient manner.

Estate Planning Documents

A basic estate plan should include, at a minimum, a will, a medical power of attorney or living will, and a power of attorney. These fundamental documents will define to whom the client grants property, to whom the client gives the authority to make medical decisions, and to whom the client gives authority to make financial decisions. The powers of attorney operate while the client is alive.

The will operates after the client’s death. Depending on circumstances, trusts, living wills, expressions of last wishes, memorandums, and other documents may be appropriate.

With the will, you identify the person(s) or entity you want as the personal representative (executor) of your estate and who receives your property upon your death. With the powers of attorney, you identify the person(s) who can make financial and medical decisions regarding your needs when you are not able to make them. The powers of attorney operate while you are alive. The will operates after your death.

Probate & Estate Administration

Historically, probate referred to the act or process of proving the validity of a will. Today, probate refers generally to all matters over which the probate court has jurisdiction. This includes the validity of a will, estate administration, guardianships, conservatorships and trusts.

Informal and Formal Probate

pageImage9In New Jersey, probate may be informal, with little or no judicial oversight, or formal, with oversight in probate court. The level of court involvement in formal probate will depend on the case facts, and whether the formal probate is supervised or unsupervised. Ultimately, probate is intended to ensure that:

  • A decedent’s property is gathered and identified,
  • Lawful creditors are paid, and
  • Assets are distributed according to a decedent’s wishes, or according to New Jersey law, if the decedent died without a will

Death Probate

Not all decedents’ estates are probated. When required, the process encompasses all matters involving a decedent’s estate, including appointing a personal representative, inventorying, accounting for and distributing the estate assets and closing the estate. Depending on the circumstances, probate may also include proving (validating) the decedent’s will, resolving the claims of creditors and others against a decedent’s estate, determining rightful heirs, resolving will contests and other issues, including litigation, that may arise.

Living Probate

Incapacitated persons, whether from age, illness or other infirmity, are unable to make certain basic life decisions. The law allows the courts to appoint a guardian or conservator of the person determined to lack the capacity to make those basic decisions for him or herself. Whether someone is appointed a conservator or a guardian depends on whether he or she will be in charge of another’s medical care or financial affairs.

Guardianship is a proceeding whereby the court appoints a person to oversee an incapacitated individual’s health and welfare.

Conservatorship is a proceeding whereby the court appoints a person to oversee and manage an individual’s property and financial affairs. Conservators and guardians are fiduciaries and must, at all times, act in the best interests of the individuals and properties they are appointed to protect. They are subject to court supervision, which includes filing plans for the care of the protected persons and their assets, and reporting to the court on the status and affairs of the protected persons.