More formality may be better with intergenerational households

As elder law attorneys, our clients have presented us with many difficult situations involving adult children or grandchildren who live in their houses. Sometimes a child has run into some hard times and sees the parent’s home as an economical option; the child may move into his parent’s house along with his spouse and children. Sometimes the child just never became self-sufficient and never made any plan to move out. The adult child may or may not be disabled. Sometimes the expenses are being shared to a degree, but often the parent pays for most of the expenses. The parent may be wrestling with a feeling of obligation, and the child may have a feeling of entitlement. The child may feel that they are “taking care of the parent,” yet the actual need for care or the work being done may be imprecise and doubted by others in the family.

The longer the arrangement lasts, the more difficult it can be for the parent to move on. The dynamic can really change when there are other children who are upset at the arrangement. The parent’s financial security may get on edge. Things can particularly blow up when the parent has to hire a caregiver or wants to sell the house in order to downsize or move to assisted living or nursing home.  How can all of these competing interests be managed? How will the house be sold, and where will the child go?

Aging parents who are still supporting their adult children may want to do some careful planning. They need to consider what will happen to them if they need their funds for care but their child is counting on all of that ongoing financial support. There are many issues to consider. Should they charge actual rent? Should there be a written lease that specifies that occupancy only continues of the occupancy fees are paid? Should they put restrictions on the child’s behavior so that the parent’s peaceful residence isn’t disturbed? A parent may want to put a provision in his or her Will that allocates some extra amount for the dependent child so that at the parent’s death, there are extra funds for relocation. By putting protective provisions into the estate plan, the parent may be able to provide better protections than counting on other family members to honor the parent’s verbal “wishes.” It may not work well to just assume that the whole family will be able to work out an agreement to support the dependent one after mom or dad passes on.

At some point, should the parent insist that the child move out, but agree to pay for the alternate housing for some period of time? What if the house is going to be sold. Does the parent want to give the child written, enforceable rights to remain in the house for a certain amount of time under certain terms & conditions if the parent dies or moves out? How will that impact the parent’s well-being, or the ability of their Executor to wrap up the estate after death? Will the child need a new guardian or life care planner?

Call us for legal advice on developing a family well being plan … 732-382-6070

Can you Change a Will without a Writing?

I cannot tell you how many times over the years a client has told me that despite what is written in the Last Will and Testament of their parent or grandparent or Aunt or Uncle, “s/he said that s/he was leaving the house to X,” or “she wanted Y to get more because he moved in and was taking care of her at the end” or “she gave a lot of money to Z and intended him to pay it back from his share of the estate” or “she lent money to X but said the loan was forgiven” or “she left it to J. but told him he had to hold it for K.”   In each of these situations of course, the deceased person never put anything like that into their Last Will and Testament, and never signed a new Will or even a Codicil (formal amendment) to the existing will. Similarly, I also hear expressions of surprise when people read what is actually written in the only Will that was found — “She told everyone she had changed it!!”

Can you change your Will without a writing? New Jersey statutes suggest that the answer is “no.” I was actually aware of a case in court in New Jersey years ago in which the deceased had never changed her signed Will but a family member insisted that it had been revoked by a series of oral statements allegedly expressed to different people. I don’t know how that theory worked out for him. No doubt the litigation cost the estate a great deal of money. Also I litigated a case in which one of the testator’s children claimed that her mother had revoked a Will and Trust by various oral statements. That lawsuit was dismissed on summary judgment.

A Last Will and Testament is a written document that is signed, dated and witnessed. It’s called “Last,” because if there is a presumption that if no writing was signed later on and the document still exists, the deceased person intended it to be the last will and testament. The law presumes that the last document supercedes all prior Wills. In fact, just to be safe, many — perhaps most — Wills expressly say that “this document replaces all prior Wills.”

How can a Will be revoked? There either has to be a writing [signed etc.] that amends or revokes the Will, or there has to be some affirmative and intentional act of revocation. The statute says: “By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.”  Some old cases dealt with accidental destruction by fire, or additional papers found with writing on them that seem to amend a Will but it isn’t quite certain.  New Jersey has a statute concerning documents that don’t meet the specific requirements to be treated as a “Will,” and those documents are referred to as “a writing intended to be a Will.” But there always has to be a “document or writing.” There is a rational reason for these statutes. It is only when there is a writing that was reviewed by and signed by the deceased person that there can be reasonable certainty of what his or her last intentions were. Without a writing, it becomes a battle between interested parties who have a motive to either invent the alleged oral statements or to deny that the claimed statements were ever made (especially if they say that no one else was present when the alleged statements were made). With a writing, it not only speaks for itself, but there is often extrinsic evidence to authenticate the making and signing of the document.

Forewarned is forearmed. If it has been years since your parents reviewed their estate plan documents — or if they never bothered to sign a Will — this would be a good time to remind them to take care of it. Of course, getting your intentions in writing and updating your own plan is always a good idea.

Call us about senior care and estate planning with wills and trusts … 732-382-6070

Handwritten Wills may work … maybe

A handwritten Will is sometimes called a “holographic Will.” In New Jersey, it is referred to as a writing intended as a Will. The baseline statute for what is a “Will” requires that for something to “be a Will” it must be (1) in writing; (2) signed by the testator or by someone else at the testator’s direction while the testator is consciously present, and (3) signed by at least 2 witnesses who each witnessed the signing of the Will and who each affixed their signatures within a reasonable time of so witnessing. A document that doesn’t meet those exacting standards is a “writing intended as a Will.”

To be accepted, such a writing does not have to be witnessed, but the signature and material portions of the document must be in the testator’s own handwriting. There also must be proof that the writing was specifically intended by the testator to be the final expression of his or her wishes.

A major hazard with self-prepared writings intended as Wills is that a court proceeding is required to obtain the necessary court Order that authenticates the document. Very often, such homemade documents give confusing instructions, or create arrangements which are unclear or incomplete, or they leave out certain necessary components.  Notice of the court case has to be given to all of the heirs at law and all those who are named in the document. If any of those people file opposition, this could turn into a very expensive and time consuming contest.

A recent case in Alaska dealt with the question of whether the placement of the signature up at the beginning of the handwritten document rather than in its customary place at the end could still qualify it as the “signature” that’s required. Estate of Baker, 2016 WL 7488253 (Alaska Dec. 30, 2016). This was a hotly contested case, but eventually the Court decided that the document met all of the statutory criteria and upheld the validity of the document.

Better to do it the right way from the start.

Call for advice on estate planning, wills and trusts  … 732-382-6070

 

Why would an 18-year old need a Power of Attorney or a Will?

Powers of attorney are for old people.” “I don’t need a Will, I don’t own anything!” Truth be told, signing a basic set of ‘estate plan documents” at age 18 can prevent expensive legal problems later. It’s like fire insurance — you get it, but hope you don’t need to use it. I have been in court on so many occasions when an expensive guardianship proceeding was in progress because a young person had had a traumatic medical catastrophe or accident or brain injury but was over 18, had never signed a financial or medical power of attorney,  and no one could lawfully make decisions for them. Lawsuits couldn’t be filed or defended; settlements couldn’t be handled; bank accounts couldn’t be accessed; checks couldn’t be written; medical decisions were held up; bills couldn’t be paid.

What if there is no Last Will and testament? There, too, a person needs a Will so that someone can be appointed as Executor. It could happen that after a death, a lawsuit needs to be filed or other legal problems need to be straightened out. The Will designates the Executor, along with specifying who will receive the assets later. If there is no Will and no Executor, someone must apply at the County Surrogate  for appointment as  administrator, and others may be equally entitled to that appointment. This can cause substantial delays and costs to the estate.

As my children turned eighteen, they signed their basic estate plan. We called it insurance. As your children are becoming adults, consider helping them to make these arrangements also. The result can be peace of mind for everyone involved.

Call us for life cycle planning for young adults ……… 732-382-6070

A handwritten Will may work …….. depending

A handwritten Will is called a “holographic Will.” In New Jersey, it is referred to as a writing intended as a Will. The baseline statute for what is a “Will” requires that for something to “be a Will” it must be (1) in writing; (2) signed by the testator or by someone else at the testator’s direction while the testator is consciously present, and (3) signed by at least 2 witnesses who each witnessed the signing of the Will and who each affixed their signatures within a reasonable time of so witnessing. A document that doesn’t meet those exacting standards is a “writing intended as a Will.”

To be accepted, such a writing does not have to be witnessed, but the signature and material portions of the document must be in the testator’s own handwriting. There also must be proof that the writing was specifically intended by the testator to be the final expression of his or her wishes.

A major hazard with self-prepared writings intended as Wills is that a court proceeding is required in order to obtain the necessary court order that authenticates the document. Very often, such documents create arrangements which are unclear or incomplete, and some of the heirs-at-law may oppose it. Notice has to be given to all such people, and if they file opposition, this could turn into a very expensive and time consuming contest.

A recent case in Alaska dealt with the question of whether the placement of the signature up at the beginning of the handwritten document rather than in its customary place at the end could still qualify it as the “signature” that’s required. Estate of Baker, 2016 WL 7488253 (Alaska Dec. 30, 2016). This was a hotly contested case, but eventually the Court decided that the document met all of the statutory criteria and upheld the validity of the document.

The probate process for a properly drawn Will is very easy in New Jersey. However, when it comes to home-made legal documents, not only is a complex  and time-consuming court process required, there are often additional problems, because the writer may not understand the meaning of the language that they use in their writing. Not only are there cases in which the document isn’t signed, there are cases where the document doesn’t  completely dispose of the estate, or doesn’t deal with a contingency (such as a deceased beneficiary or the refusal of a named trustee to serve). Sometimes the document creates ambiguities so that the Executor can’t figure out what is required.

Would you do your own plumbing or electrical wiring? If not, you may not want to prepare your own legal documents either.

Call us for estate planning assistance that reflects your final wishes …

732-382-6070