Tag Archives: wills

So A Family Member Died and You Can’t Find the Will

By Louis Pashman, Esq.

The general rule is that a will must be executed with certain rather specific requirements.  NJSA 3B:3-1 and 2.  When New Jersey adopted the Uniform Probate Code, however, it adopted the “harmless error” doctrine, NJSA 3B:3-3.  Most states have not adopted that provision.  The statute provides that a writing will be treated as if it complies with the formal requirements of execution if it can be shown by clear and convincing evidence that:

  1. The document presented was intended by the decedent to be his will; or
  2. A complete or partial revocation of a will; or
  3. An addition to or alteration of a will; or
  4. A partial or complete revival of a formerly revoked will or portion of the will.

In Re Estate of Ehrlich, 427 NJ Super 64 (App. Div. 2012) examined the “harmless error” statute.  That court found that an unexecuted copy of a will could be admitted to probate under the circumstances of that case.  Those circumstances were, it must be noted, compelling.

First, the decedent was himself a lawyer and the copy presented was on formal legal size paper with the decedent’s office name and address printed on each page.  There was a notation in the margin of the first page, in decedent’s handwriting, that the original had been sent to the person named in the document as the executor (that individual predeceased decedent and the original will obviously was never found).  The document was prepared just before decedent was to undergo life-threatening surgery.  Decedent survived the surgery and years later he talked to others about the will and the possibility of revising it.  The primary beneficiary was the only relative with whom decedent had any meaningful relationship.

One of the appellate judges dissented.  He would have held that the statute does not permit admission to probate of an unexecuted document, only a defective will.  The Supreme Court refused to hear the case.

It seems that the lesson to be learned from this is that an unexecuted document can be admitted to probate as a will, but it will not be easy.  The evidence showing that the Ehrlich document met the requirements of NJSA 3B:3-3 was overwhelming .  As the court noted, “the greater the departure from … [NJSA 3B:3-1 and 2] formal requirements the more difficult it will be to satisfy … [NJSA 3B:3-3].”

Don’t Forget the Basics

By Joseph Goldman, Esq.

It’s April 2012 and the clock is ticking.  The federal estate and gift tax exemption is $5,120,000, the highest amount ever, but only until December 31.  Add an environment of low interest rates and relatively low market valuations and the time is ripe for estate tax planning.  But while you’re watching the estate tax bottom line, don’t forget the basics.

You need a Will, a Power of Attorney and a Health Care Proxy and Directive.  If you don’t have these documents – get them as soon as possible.

What’s more – communication is the key!

Does your family know that you executed estate plan documents and where to find them?

Does your family know your assets?  You should keep a list of bank accounts, credit cards, stocks and bonds, investments, real estate and mortgages, IRAs, pensions and other retirement plans.

Do they know your key advisers – attorney, accountant, investment and insurance – and how to contact them?

You should provide your family information about safe deposit boxes, combinations and keys.

Especially important in the digital age, you should provide them with your user name and password(s).

If you own a business, have you made plans for business succession?  This can be especially important if some of your children are involved in the business but others aren’t.

I often recommend that clients write a letter to family explaining their wishes, financial and otherwise, to supplement their estate plan documents.  This letter can provide useful guidance and a degree of comfort.

Estate planning should not be a secret.  Let your family in on the process and they will thank you for it.

Ring in the New Year with a Review of Your Estate Plan

By Joseph Goldman, Esq.

The Tax Relief Act of 2010 (TRA 2010) made major changes to the federal estate and gift tax laws. These include increasing the exemption amount to $5 million ($5.12 million in 2012) for estate tax, gift tax (no more $1 million limit on lifetime gift tax), and generation-skipping transfer tax, decreasing the tax rate to 35% and adding “portability.” The changes allow taxpayers to take advantage of gift-giving strategies that could result in substantial tax savings for their families. Even for individuals who have a Will, failure to review their estate plan may cause their estate to be disposed of contrary to their wishes and may also result in unnecessary tax liability. Individuals should also review their estate plan in light of changes to their family and financial situation that have occurred since their estate plan documents were executed. But time is of the essence! The changes made by the TRA 2010 are currently set to expire at the end of 2012. As of January 1, 2013, the exemption is scheduled to decrease to $1 million and the tax rate is scheduled to increase to 55%.