New Jersey Appellate Court Clarifies Judge’s Role in Guardianship Cases

New Jersey Appellate Court Clarifies Judge’s Role in Guardianship Cases

by | Jun 2, 2026 | Guardianship, Legal Bulletin

When a court decides to appoint a state agency as guardian over a family member's objection, what due process is the family entitled to? Can a judge make that call based on attorney reports and physician certifications alone — without testimony, without cross-examination, and without detailed findings of fact?

The New Jersey Appellate Division in the case In re F.M.W., decided February 20, 2026, held that the trial court is obligated to first consider all the evidence and make findings by clear and convincing evidence as to whether the person is incapacitated, even if that issue is uncontested. Then when considering who to appoint as guardian the court cannot simply rely on the recommendations of the court-appointed attorney for the incapacitated person. The court must also weigh the wishes of the incapacitated person (such as what is stated in a Power of Attorney), and if the issue of who should be guardian is contested the court must permit discovery on the issue. Finally, the court must conduct a plenary hearing that allows the parties to present evidence, offer witnesses and have the opportunity to conduct cross-examination. 

Background

F.M.W. was an elderly woman suffering from advanced Alzheimer’s dementia. She lived with her sister, R.W., her only relative, who served as her primary caregiver. In 2014 — before her cognitive decline — F.M.W. had executed a durable Power of Attorney designating R.W. as her agent.

In late 2023, Adult Protective Services received an anonymous referral reporting concerns about F.M.W.’s care. Over the following months, a Protective Services social worker conducted multiple home visits and encountered resistance from R.W. — who allegedly refused to provide medical information, blocked access to F.M.W. on some occasions, and was described by F.M.W.’s former aide and a longtime friend as struggling with mental health issues, including paranoia. The court-appointed attorney, William Saxton, Esq., ultimately “strongly opposed” R.W.’s appointment as guardian, describing her as showing “signs of deep instability” and alleging that her neglect had compromised F.M.W.’s physical health.

On September 13, 2024, the probate court held a telephonic hearing. After hearing arguments from counsel and reviewing Saxton’s report and the physician certifications, the court found that R.W. would not be an “appropriate guardian” and appointed the New Jersey Office of the Public Guardian instead. The court issued no findings of fact, made no clear and convincing evidence determination on incapacity, and gave no analysis of F.M.W.’s best interests. F.M.W. died on July 29, 2025, before the appeal could be decided.

The Legal Framework: What NJ Courts Are Required to Do

New Jersey’s guardianship process is governed by N.J.S.A. 3B:12-24 to -35 and Rule 4:86-1 to -8. I covered the process in detail in my posts on Understanding Guardianship in New Jersey: Why It May Be Necessary and How to Obtain It, and What Happens After You’re Appointed Guardian in New Jersey. The procedural safeguards embedded in these rules exist for an important reason: a finding of incapacity results in an individual’s loss of the right of self-determination — one of the most fundamental rights recognized under the New Jersey Constitution.

When a guardianship proceeding reaches the hearing stage, the court is required to undertake a two-step analysis. First, the court must determine by clear and convincing evidence whether the individual is incapacitated. Second, upon making that finding, the court must determine whether to appoint a general or limited guardian and must select an appropriate individual to serve in that role.

On the second question — who should serve as guardian — New Jersey law establishes a clear preference. Under N.J.S.A. 3B:12-25, the Legislature has prioritized surrogate decision-makers in the following order: first, the incapacitated person’s spouse or domestic partner; next, their heirs or friends; and lastly, the Public Guardian. A family member’s preference “must be recognized unless it is shown to the court’s satisfaction that the appointment of next-of-kin would be affirmatively contrary to the best interests of the incapacitated person.” In re Roll, 117 N.J. Super. 122, 124 (App. Div. 1971).

The court may also consider the incapacitated person’s own prior expressed wishes — including a durable Power of Attorney, health care proxy, or advance directive. N.J.S.A. 3B:12-25; see also R. 4:86-4(a)(2).

What the Probate Court Got Wrong

The Appellate Division identified several distinct failures in the probate court’s handling of the case.

No findings on incapacity

Even though incapacity was uncontested, the probate court was still required to make formal findings by clear and convincing evidence. The absence of a dispute does not eliminate the obligation to analyze the evidence and state the basis for the court’s conclusions. The court simply summarized the physicians’ conclusions without conducting any independent analysis.

No consideration of limited guardianship

The court appointed a plenary guardian without considering whether a limited guardianship — one that preserved some of F.M.W.’s decision-making rights — might have been more appropriate. New Jersey law requires this analysis. A person who is incapacitated in some respects may still retain sufficient capacity to make certain decisions, such as where to live.

No consideration of the existing Power of Attorney

F.M.W. had executed a durable Power of Attorney in 2014 designating R.W. as her agent — an expression of her own wishes while she had capacity. The probate court made no mention of this document. While the court was free to give it whatever weight it deemed appropriate, failing to consider it at all was error.

No plenary hearing on the contested issue

This was the central failing. The question of who should serve as guardian was genuinely contested — R.W. denied the allegations against her, and the record contained positive observations contradicting the concerns raised by Protective Services and Saxton. Despite this, the court resolved the contest based on the testimony of court-appointed counsel and written reports alone, without the opportunity for discovery and presentation of evidence, other witness testimony, and without cross-examination. In sum, the Appellate Division found that R.W. did not have a meaningful opportunity to challenge the evidence against her.

The decision to appoint a guardian for an incapacitated person ‘made without evidential basis, without examination and cross-examination of lay and expert witnesses, and without a statement of reasons is untenable in the extreme.’ J.G. v. J.H., 457 N.J. Super. 365, 373 (App. Div. 2019).

The Appellate Division’s Holding

📌 Key Holding: When the appointment of a guardian is contested, due process requires: (1) findings by clear and convincing evidence on incapacity; (2) consideration of whether limited guardianship is appropriate; (3) consideration of the incapacitated person’s prior expressed wishes, including any POA; and (4) a plenary hearing in open court with testimony, limited discovery, and cross-examination on the contested issue of who should serve as guardian.

The court acknowledged that the Public Guardian may ultimately have been the correct choice — the decision had no bearing on the merits because F.M.W. had already died. The point was the process. Overriding the statutory preference for a family member, and overriding F.M.W.’s own documented choice of R.W. as her agent, required more than a telephonic hearing and consideration of one-sided reports.

The Appellate Division reversed the probate court’s order and issued the decision for publication — establishing it as precedent for future guardianship proceedings — specifically because the procedural issues raised were “capable of repetition, yet evading review.”

The Planning Lesson: Why Power of Attorney and Advance Directives Matter

The F.M.W. case is also a reminder of why advance planning matters. F.M.W. had the foresight to execute a Power of Attorney designating R.W. as her agent — an expression of her own wishes that the probate court failed to even mention. Had the court given that document its proper weight, it may have changed the analysis significantly. For more on the documents every New Jersey adult should have in place, see my posts on Durable Power of Attorney, Springing Power of Attorney, Living Wills, and Medical Decision Making.

Personal Care Assistant Services in New Jersey: What You’re Entitled To — and What Insurance Companies Aren’t Telling You

Personal Care Assistant Services in New Jersey: What You’re Entitled To — and What Insurance Companies Aren’t Telling You

by | May 26, 2026 | Consumer Advocacy, Medicaid

Many New Jersey Medicaid recipients who need help with daily activities — bathing, dressing, toileting, mobility — are entitled to Personal Care Assistant (PCA) services. These are in-home, hands-on services paid for by Medicaid and delivered through a managed care organization. They can make the difference between living independently at home and moving to a facility.

What most people don’t know is that PCA services are available under all New Jersey Medicaid plans — not just MLTSS. This post explains how PCA eligibility works, how hours are determined, and what New Jersey consumers should know before agreeing to switch their Medicaid plan.

What Are PCA Services?

Personal Care Assistant services are non-emergent, health-related services provided in the home of an eligible NJ FamilyCare (Medicaid) beneficiary. They are intended to help people with disabilities and chronic conditions maintain independence and remain in the community rather than moving to a nursing facility or assisted living.

PCA services cover hands-on assistance with Activities of Daily Living or ADLs. PCA services do not cover skilled nursing, medication administration, or medical procedures. They are personal care — the kind of hands-on daily assistance that allows someone to function safely at home when they can no longer do so independently.

Who Is Eligible?

📌 Key Point: PCA services are available to ALL New Jersey Medicaid beneficiaries who meet the functional criteria — not just those enrolled in MLTSS.

Eligibility for PCA services is governed by N.J.A.C. 10:60-3.1. A beneficiary qualifies if they require either a) moderate or greater hands-on assistance in at least one ADL, or b) minimal assistance or greater in at least three different ADLs, at least one of which must require hands-on assistance.

A diagnosis alone is not sufficient. The functional limitations must be documented through a face-to-face assessment using the State's standardized PCA Assessment Tool.

            Activities of Daily Living (ADLs) are defined as:

  1. Oral hygiene and care of teeth and mouth

  2. Grooming — care of hair, shampooing, shaving, nail care where upper extremity function or cognitive impairment requires assistance

  3. Bathing — in bed, tub, or shower

  4. Toileting and use of bedpan

  5. Changing bed linens with the beneficiary in bed

  6. Ambulation indoors and outdoors

  7. Transfers — moving from bed to chair or wheelchair, in and out of tub or shower

  8. Assistance with eating, including placing food and liquids into the mouth and assisting with swallowing difficulties

  9. Dressing

  10. Accompanying the beneficiary to physician visits, clinics, or other trips for medical diagnosis, treatment, or therapeutic purposes

            Instrumental Activities of Daily Living (IADLs) are defined as:

  1. Sweeping, vacuuming, and dusting of the beneficiary's room and areas used by the beneficiary

  2. Care of kitchen — maintaining cleanliness of refrigerator, stove, sink, and floor; dishwashing

  3. Care of bathroom — maintaining cleanliness of toilet, tub, shower, sink, and floor

  4. Care of the beneficiary's personal laundry and bed linen, including necessary ironing and mending

  5. Bed-making and changing of bed linen

  6. Rearranging furniture to enable the beneficiary to move about more easily

  7. Listing, shopping for, and storing food and essential household supplies

  8. Planning, preparing, and serving meals, including special therapeutic diets

  9. Relearning household skills

One of the most misunderstood aspects of the PCA benefit is the fact that it is not available to every senior or person with a disability who may need some assistance at home. It is important to know that IADL assistance alone — no matter how significant — does not establish eligibility for PCA services. A beneficiary who needs help with meal preparation, housekeeping, laundry, and shopping but does not meet the ADL threshold above does not qualify for PCA. IADLs are authorized only in conjunction with ADL services, as a supplement to hands-on personal care.

IADLs for Shared Households

It is also crucial to understand that when a beneficiary lives with a legally responsible relative, that relative is expected to handle IADL tasks that benefit the household generally — cleaning shared spaces, shared laundry, shared meal preparation, and shopping for items used by all household members. PCA IADL coverage is limited to tasks that specifically serve the beneficiary's personal needs.

Finally, it is important to know that PCA services do not include the following:

  • Supervision as a standalone service

  • Companionship

  • Services limited to non-hands-on personal care needs only

  • Services for conditions with no functional limitations (e.g., high cholesterol)

  • Services for acute short-term diagnoses expected to heal (e.g., a fracture)

How PCA Hours Are Determined

PCA hours are not self-reported or set by a doctor’s prescription. They are determined by a professional who conducts a clinical assessment in the applicant’s home using New Jersey’s standardized PCA Assessment Tool. The assessment evaluates the individual’s functional status across each ADL category and determines how many hours per week of PCA services are medically necessary.

Prior authorization from the MCO is required. The MCO reviews the nurse’s assessment and the plan of care before authorizing hours. Under New Jersey administrative code, PCA hours are authorized on a weekly basis. Unused hours cannot be banked or carried over to the following week — even if the beneficiary or aide was ill or hospitalized.

The current weekly cap on PCA services is 40 hours. If a beneficiary disagrees with the number of hours authorized, they have the right to appeal through their MCO and, if necessary, through a Fair Hearing before an Administrative Law Judge.

The Personal Preference Program: Self-Directing Your PCA Services

New Jersey offers an alternative to agency-provided PCA services through the Personal Preference Program (PPP). Under the PPP, eligible Medicaid beneficiaries receive a monthly budget based on their authorized PCA hours and can use that budget to hire their own caregiver directly, including a family member, friend, neighbor, or spouse.

Any Medicaid beneficiary who qualifies for PCA services and chooses to self-direct can participate. The authorized representative who manages the budget cannot be the same person who provides the care. A fiscal intermediary handles payroll, taxes, and withholding on behalf of the participant.

To switch from agency-provided PCA services to the PPP, contact your MCO and request enrollment. A reassessment of hours may or may not be required depending on the MCO.

The MLTSS Misconception — and Why It Matters

⚠️ Consumer Alert: PCA services are a benefit of all NJ Medicaid programs — not exclusively an MLTSS benefit. Consumers who are told they must switch to MLTSS to receive PCA services are being misinformed.

A widespread misconception among New Jersey Medicaid recipients — and sometimes among their families and care coordinators — is that PCA services are only available through MLTSS. This is incorrect. PCA services are a New Jersey State Plan benefit, meaning they are available to all NJ FamilyCare beneficiaries who meet the functional criteria, regardless of which Medicaid plan they are enrolled in.

MLTSS is a different and more comprehensive program designed for individuals who meet nursing facility level of care. MLTSS covers a broader array of services than standard Medicaid, including assisted living, case management, home modifications, and personal emergency response systems. For consumers who genuinely need that level of service coordination, MLTSS may be the right choice.

But not every Medicaid recipient who needs PCA services needs MLTSS. A person who needs 15 hours of weekly PCA assistance but is otherwise managing well at home may have their needs fully met by standard Medicaid with PCA services. Enrolling in MLTSS when it is not necessary adds administrative complexity, may change the consumer’s provider network, and is not required to access PCA benefits.

Why MCOs May Encourage MLTSS Enrollment

Understanding why MCOs sometimes steer consumers toward MLTSS requires a basic understanding of how managed care financing works. Medicaid pays MCOs a capitation rate — a fixed monthly payment per enrollee. The capitation rate for MLTSS enrollees is significantly higher than the rate for standard ABD Medicaid enrollees, reflecting the greater expected cost of serving a population with nursing facility-level needs.

This creates a financial incentive structure worth understanding. As long as an MCO’s actual cost of serving an MLTSS enrollee remains below the capitation rate, the MCO retains the difference. Enrolling a consumer in MLTSS who could be adequately served under standard ABD Medicaid generates a higher capitation payment for the MCO for what may be a comparable cost of services. This is not a hypothetical concern — federal Medicaid policy documents on New Jersey’s MLTSS program have explicitly acknowledged that MCOs have financial incentives to enroll additional participants in MLTSS as long as their costs remain below the capitation rate.

None of this means that every MCO recommendation to enroll in MLTSS is financially motivated or that MLTSS is the wrong choice for a given consumer. For many New Jersey residents with complex long-term care needs, MLTSS is the appropriate program. The point is that consumers should make this decision based on their own needs and circumstances — not based on a recommendation from an entity that has a financial stake in the outcome.

What Consumers Should Ask Before Switching

If you or a family member is currently enrolled in standard ABD Medicaid and is being encouraged to switch to MLTSS, ask these questions before agreeing:

  • Am I eligible for PCA services under my current ABD Medicaid plan?

  • What specific services does MLTSS provide that I cannot receive under my current plan?

  • What are the clinical eligibility requirements for MLTSS, and do I actually meet them?

  • What are the financial eligibility requirements for MLTSS, and how will this impact me going forward?

  • What impact will this have on my Estate since Medicaid is entitled to be paid back after I pass away?

Consumers have the right to remain in their current Medicaid plan. A recommendation to switch — however well-intentioned it may be presented — is not a requirement.

Final Thoughts

PCA services are one of the most valuable benefits available to New Jersey Medicaid recipients. They allow people with significant functional limitations to remain in their homes and communities rather than moving to institutional care. Knowing that this benefit is available under standard Medicaid plans — and understanding how hours are assessed and authorized — puts consumers in a much stronger position to advocate for themselves.

Do You Need to Plan to Avoid Probate in New Jersey? Probably Not

Do You Need to Plan to Avoid Probate in New Jersey? Probably Not

by | May 19, 2026 | Estate Administration, Irrevocable Family Trusts, Probate, Trusts

If you have spent any time researching estate planning online, you have likely encountered some version of the following warning: probate is expensive, slow, and public — and you must plan aggressively to avoid it. Living trusts are pitched as essential. Horror stories of estates consumed by legal fees are used to justify the purchase of planning products.

In many states, that concern is legitimate. In California, for example, probate attorney fees are set by statute at a percentage of the gross estate and can easily reach tens of thousands of dollars on a modest home. In New Jersey, the situation is quite different. For the typical New Jersey estate, probate is a straightforward administrative process that is neither prohibitively expensive nor particularly complicated. Understanding what probate actually involves here — rather than what it involves in other states — should inform whether you need to go out of your way to avoid it.

What Probate Actually Looks Like in New Jersey

Probate in New Jersey is the legal process of validating a will, appointing an executor, and overseeing the distribution of a deceased person's estate. It is governed by Title 3B of the New Jersey Statutes and administered through each county’s Surrogate’s Court. In most uncontested cases, probate in New Jersey is largely an administrative process handled by the Surrogate’s Court staff — not a formal court hearing before a judge.

Here is what the process typically looks like for a straightforward NJ estate:

  • Wait ten days after death — New Jersey law prohibits probate from being initiated within ten days of death, though paperwork can be filed in advance

  • File the original Will and a death certificate with the county Surrogate’s Court

  • Pay the filing fee — typically $100 to $200 depending on the length of the will and associated services requested

  • Receive Letters Testamentary from the Surrogate, which authorize the executor to act on behalf of the estate

  • Send notice of probate to all beneficiaries and next of kin within 60 days

  • Notify creditors, pay valid debts, obtain any required NJ inheritance tax waivers, and distribute remaining assets to beneficiaries

In most cases, there is no court appearance required. The Surrogate’s staff process the application, issue the Letters, and the executor takes it from there. The process is bureaucratic, not adversarial.

What Does Probate Cost in New Jersey?

This is where New Jersey diverges most sharply from the states that give probate its frightening reputation. Court costs in New Jersey are minimal — the filing fees range from $100 to $200, which typically includes a small per-page fee for longer wills and a nominal fee for each short certificate (Letters Testamentary) issued.

Attorney fees are not set by a statutory formula in New Jersey the way they are in California or Florida. New Jersey uses a reasonable compensation standard, meaning attorneys may charge an hourly or flat fee, subject to the reasonableness standard. For a simple, uncontested estate — a house, some bank accounts, standard beneficiaries — attorney fees for probate typically range from $2,000 to $5,000. That is a meaningful cost, but it is not the ruinous expense that probate-avoidance marketing would suggest.

Executor commissions are set by statute in New Jersey at 5% on the first $200,000 of estate assets, 3.5% on the next $800,000, and 2% on amounts over $1,000,000, plus 6% of estate income. These commissions are payable to the executor — who is frequently a family member — and can be waived in whole or in part. In practice, family member executors routinely waive their commission entirely, particularly in smaller estates.

How Long Does NJ Probate Take?

The timeline for New Jersey probate is driven primarily by two fixed waiting periods, not by court backlog or procedural complexity. The first is the ten-day waiting period before the Will can be admitted. The second — and the one that sets the practical minimum — is the nine-month creditor claims period. Creditors of the estate have nine months from the date of death to file claims against the estate. Prudent executors wait for this period to pass before making final distributions.

For a straightforward estate with no tax issues, no disputes, and Class A beneficiaries only (spouse, children, grandchildren, parents), the total timeline is typically nine to twelve months. For estates requiring NJ inheritance tax returns — applicable to Class C and D beneficiaries such as siblings and more distant relatives — the timeline can extend to twelve to eighteen months due to the time required to obtain a tax clearance.

This is not fast. But it is not the multi-year ordeal that probate can become in other states or in contested New Jersey cases. For a family that is not in a hurry to sell real estate or access inherited funds, nine to twelve months is manageable.

When Probate IS a Legitimate Concern in New Jersey

The argument that probate avoidance is unnecessary for most NJ estates should not be read as an argument that probate is never a problem. There are specific circumstances where avoiding probate provides real, tangible benefits in New Jersey.

  • Real estate in multiple states: If a decedent owns real property in more than one state, each state where property is located requires its own ancillary probate proceeding. This multiplies costs and complexity significantly. A trust that holds out-of-state real estate may avoid ancillary probate in each additional state.

  • Privacy concerns: Probate is a public process. Wills admitted to probate become public records. In some counties, probate filings are searchable online. For individuals who prefer that the terms of their estate plan remain private — particularly the amounts left to specific beneficiaries — a trust-based plan keeps that information out of the public record.

  • Blended families and anticipated disputes: When family dynamics suggest a heightened risk of Will contests or beneficiary disputes, probate provides a forum for those disputes to play out — which is both a feature and a liability. A trust-based plan can reduce the opportunities for litigation, though it does not eliminate them entirely.

  • Incapacity planning: Placing assets in a trust serves a dual purpose: it avoids probate at death and provides a framework for managing assets during incapacity. For individuals who are concerned about future cognitive decline or who do not want to rely solely on a Power of Attorney for asset management, trusts can provide a more robust incapacity planning vehicle.

  • NJ inheritance tax and Class C/D beneficiaries: Probate itself does not eliminate the inheritance tax, but the administration of estates with non-exempt beneficiaries is more complex and time-consuming. Proper planning can minimize the tax exposure, which is a legitimate goal independent of probate avoidance.

What Most NJ Families Can Use Instead of a Trust

For the typical New Jersey family — a married couple with children leaving their estate to each other and then to their children — several non-probate transfer mechanisms accomplish most of what trusts would achieve at far lower cost and complexity:

  • Beneficiary designations: Life insurance, retirement accounts (IRA, 401(k)), and annuities pass directly to named beneficiaries outside of probate. Keeping these designations current is one of the most important and most overlooked aspects of estate planning.

  • Payable-on-death (POD) and transfer-on-death (TOD) designations: Bank accounts and brokerage accounts can be set up with POD or TOD designations that direct the assets to named beneficiaries at death without going through probate. This is simple, free, and effective for liquid assets.

  • Joint tenancy with right of survivorship: Real property held jointly with right of survivorship passes automatically to the surviving owner at death without probate.

  • A well-drafted Will: For assets that do pass through probate, a clear and current will ensures that the Surrogate’s Court process is as smooth and efficient as possible. An outdated Will, or a Will that conflicts with beneficiary designations, creates the kind of confusion that turns routine probate into contested probate.

When a Trust Does Make Sense in New Jersey

None of this means that trusts are never appropriate for New Jersey residents. They are a useful and sometimes essential planning tool. The point is that the decision should be driven by the client’s actual circumstances, not by generalized fear of probate.

A trust is worth serious consideration in New Jersey when:

  • The estate includes real property located in other states

  • The client has strong privacy concerns about public probate records

  • The client wants a robust incapacity planning structure beyond a Power of Attorney alone

  • The family situation is complex — blended family, estranged beneficiaries, or a high risk of disputes

  • The estate is large enough that the cost of creating and funding a trust is proportionally modest relative to the overall estate value

A trust is generally not worth the additional upfront cost — typically $2,000 to $5,000 or more for a properly drafted and funded trust, plus ongoing maintenance — when the estate is straightforward, the beneficiaries are Class A, and there is no out-of-state real property.

The Real Purpose of Estate Planning in New Jersey

This is perhaps the most important point of this post. For most New Jersey families, the primary reasons to engage in estate planning have little to do with probate avoidance. They have to do with:

  • Incapacity planning: A Durable Power of Attorney, Healthcare Proxy, and Living Will are essential documents that have nothing to do with probate. They govern what happens if you lose the ability to make decisions for yourself. These documents are arguably more important than any probate-avoidance strategy.

  • Medicaid planning: For families whose primary concern is long-term care costs and asset preservation, Medicaid planning — irrevocable trusts, spend-down strategies, spousal protections — is the more urgent priority. Probate avoidance is secondary to the question of whether assets will be consumed by long-term care costs or subject to Medicaid estate recovery.

  • Clarity and family harmony: A clear, current Will that accurately reflects your wishes and is understood by your family is worth more than an elaborate trust structure that no one understands. The most expensive probate is a contested one.

  • Tax planning for non-exempt beneficiaries: If your estate will pass to siblings, nieces, nephews, or more distant relatives, NJ inheritance tax planning is a legitimate priority that is entirely separate from probate avoidance.

Final Thoughts

New Jersey probate is not the monster it is made out to be in states where attorney fees are set as a percentage of the gross estate and formal court proceedings are required. For the typical New Jersey estate passing to a spouse and children, probate is a manageable administrative process with modest costs and a predictable timeline.

That does not mean estate planning is unimportant — it means that the goals of estate planning in New Jersey should be properly identified. Incapacity planning, Medicaid asset protection, clarity of testamentary intent, and appropriate beneficiary designations are the real priorities for most families. Probate avoidance is a secondary consideration that may or may not be worth pursuing depending on the specific facts.

If you are unsure whether your current estate plan — or lack of one — is serving your family’s actual needs, contact an experienced estate planning attorney.

You Cannot Arbitrate a Will Dispute in New Jersey

You Cannot Arbitrate a Will Dispute in New Jersey

by | May 12, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Probate, Trusts

Can a testator include an arbitration clause in their Will that forces beneficiaries to resolve disputes in a private arbitration forum rather than a New Jersey court? For the first time, the New Jersey Appellate Division has answered that question directly — and the answer is no.

In a case published on April 21, 2026, In re Estate of Samuel P. Hekemian, the Appellate Division held that an arbitration provision contained in a Last Will and Testament is unenforceable under New Jersey law.

Background: The Hekemian Family Estate

Samuel P. Hekemian died testate in August 2018, survived by his wife Sandra and their four adult sons: Peter, Jeffrey, Mark, and Richard. His 2002 Last Will and Testament (2002 LWT) appointed his son Peter and longtime advisor Edward G. Imperatore, Esq. as co-executors and co-trustees of three testamentary trusts established under the Will.

The 2002 LWT contained an arbitration clause providing that any dispute regarding the interpretation of the Will or its administration “shall be submitted for settlement by arbitration.” The clause declared arbitration to be “the exclusive remedy” for resolving such disputes and stated that the arbitrator’s decision “shall be final and binding upon all interested parties and shall not be appealable to any court of law.”

The same arbitration provision appeared in reciprocal Wills executed simultaneously in 2001 by Samuel and Sandra that were prepared by the same New York attorney. When Sandra and Richard later filed exceptions to the co-executors’ first intermediate accounting of the estate, the co-executors moved to compel arbitration.

A Second Look at the Same Arbitration Clause

This was not the first time the arbitration provision had been challenged. In an earlier unpublished opinion, the Appellate Division had affirmed the denial of a motion to compel arbitration of Richard’s request for an accounting, finding that the clause was not the product of mutual assent under traditional contract principles and that it failed to explain that Richard was relinquishing his right to bring a claim in court. At that time, however, the court stopped short of declaring the arbitration provision categorically unenforceable.

In the intervening period, Sandra joined the litigation and filed her own exceptions to the co-executors’ accounting. Unlike Richard, Sandra had received distributions under the 2002 LWT. The co-executors argued this distinguished her situation and that her participation in the Will’s benefits, combined with the execution of the reciprocal 2001 Wills, established the mutual assent necessary to compel her to arbitrate. The trial court rejected that argument and denied the motion. The co-executors appealed.

The Court’s Holding: Two Independent Grounds

The Appellate Division affirmed the trial court’s denial, but went further than the lower court by issuing a definitive ruling on a question of first impression: arbitration clauses in testamentary instruments are unenforceable under New Jersey law. The court rested its holding on two independent and mutually reinforcing grounds.

1. Lack of Mutual Assent

An agreement to arbitrate, like any contract, requires mutual assent — a knowing and voluntary waiver of the right to pursue claims in court. The court reaffirmed its earlier conclusion that the arbitration clause failed to explain, in clear and unambiguous terms, that interested parties were relinquishing their right to sue. Citing Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), the court emphasized that “the point is to assure that the parties know that in electing arbitration as the exclusive remedy, they are waiving their time-honored right to sue.”

The co-executors argued that Sandra’s simultaneous execution of a reciprocal Will containing the same arbitration clause demonstrated her assent. The court rejected this. While a meeting of the minds is not required for a Will to be effective — because a Will is a unilateral disposition of property, not a contract — that principle cuts in the opposite direction for arbitration purposes. Precisely because a Will is unilateral, neither Sandra nor any other interested party was afforded the opportunity to consider or elect to waive their right to proceed in court. The court was not satisfied that the simultaneous execution of reciprocal Wills, without more, established the kind of informed, knowing assent required for a valid arbitration agreement.

2. Inconsistency with the Probate Code

Even if the assent problem could be overcome, the court held that arbitration clauses in Wills are incompatible with New Jersey’s statutory framework for estate administration. The Probate Code, N.J.S.A. 3B:1-1 et seq., vests the Superior Court with comprehensive authority over Will disputes, trust administration, and fiduciary accountings. The court catalogued the relevant provisions, including but not limited to:

  • N.J.S.A. 3B:2-2 grants the Superior Court "full authority to hear and determine all controversies respecting wills, trusts[,] and estates, and full authority over the accounts of fiduciaries, and also authority over all other matters and things as are submitted to its determination under this title."

  • N.J.S.A. 3B:3-17 during probate, the Superior Court "may take depositions to wills[,] admit the same to probate, and grant . . . letters testamentary or letters of administration with the will annexed."

  • N.J.S.A. 3B:3-18 requiring that to "prove the transfer of any property or to nominate an executor, a will must be admitted to probate."

Against this backdrop, the court reaffirmed and expressly adopted what had been an observation in its prior unpublished opinion: “arbitration clauses that eliminate the courts’ expected role in resolving Will disputes are inconsistent with the detailed statutory scheme vesting the superior courts with the authority to adjudicate such issues.” Accordingly, enforcement of an arbitration clause in a testamentary instrument is contrary to both the Probate Code and New Jersey’s contract principles. The court held:

We conclude enforcement of an arbitration clause in a testamentary instrument is contrary to the court’s role underlying the Probate Code and inconsistent with our State’s contract principles.

What This Means for Estate Planning in New Jersey

The Hekemian decision settles a question that had been lingering in New Jersey estate practice for years. Estate planners and their clients should take note of several practical implications.

  • Arbitration clauses in Wills are unenforceable in New Jersey. Regardless of a testator’s intent, an arbitration provision in a Last Will and Testament cannot compel beneficiaries, heirs, or other interested parties to resolve their disputes outside of court. Any such provision should be considered a nullity.

  • Testamentary trusts are also covered. The court’s holding extends to disputes concerning trusts created under a Will, not merely the Will itself. The arbitration clause in the Will purported to cover disputes “regarding the interpretation of this Will and the trusts created hereunder” — both were held unenforceable.

  • The result is the same regardless of mutual assent. Even if a testator and their spouse executed reciprocal Wills containing identical arbitration clauses, and even if the surviving spouse received benefits under the Will, that is insufficient to establish the knowing, voluntary waiver of court rights required under Atalese.

  • Inter vivos trusts are a different question. The Hekemian decision addresses testamentary instruments — Wills and trusts created by Wills. Arbitration clauses in standalone inter vivos trusts, which are contractual instruments, may be treated differently.

  • Will disputes belong in court. Beneficiaries and interested parties who find themselves in estate disputes in New Jersey have a right to litigate those disputes in the Superior Court, Chancery Division, Probate Part — and a testator cannot take that right away through a provision buried in their Will.

A Practical Note for Families

For families navigating an estate dispute in New Jersey, the Hekemian decision is significant. If a co-executor or trustee attempts to invoke an arbitration clause in a Will to divert your dispute out of court, that clause is unenforceable. You are entitled to pursue your claims — whether exceptions to an accounting, removal of a fiduciary, or other relief — in the Superior Court under the full protections of New Jersey law.

For those in the estate planning process, this decision underscores the importance of working with an experienced New Jersey estate planning attorney who stays current with developments in the law. Estate planning documents should reflect the current legal landscape, not aspirational provisions that courts will not enforce.

Does Medicaid Take Your House When You Die in New Jersey?

Does Medicaid Take Your House When You Die in New Jersey?

by | May 5, 2026 | Estate Administration, Estate Planning, Medicaid, Probate

It is one of the most common questions elder law attorneys hear: “If my parent goes on Medicaid, does the state get the house when they die?” The short answer is: it depends — and the details matter enormously.

New Jersey, like every other state, operates a Medicaid Estate Recovery Program (MERP). Under federal law, states are required to seek reimbursement from the estates of Medicaid recipients for long-term care costs paid on their behalf. The home — often the only significant asset remaining at death — is frequently the target. But the rules governing when and how New Jersey can pursue recovery are specific, and with proper planning, recovery can often be minimized or avoided entirely.

This post explains how New Jersey’s Medicaid estate recovery program works, what protections exist, and what families can do to protect a home and other assets.

What Is the Medicaid Estate Recovery Program?

The Medicaid Estate Recovery Program is administered in New Jersey by the Division of Medical Assistance and Health Services (DMAHS). Under both federal law and New Jersey law, DMAHS is required to seek reimbursement from the estates of deceased Medicaid beneficiaries for all Medicaid payments made on their behalf for services received at age 55 or older.

This is a point that catches families off guard. Medicaid’s eligibility asset rules during the recipient’s lifetime exempt the home from the $2,000 asset limit, provided the recipient intends to return home or a spouse or dependent relative lives there. But that exemption during life does not protect the home from recovery after death. The state is effectively deferring its claim until the recipient passes.

Recovery is not limited to nursing home care. Under New Jersey’s rules, DMAHS recovers for all Medicaid payments made on behalf of a recipient age 55 or older, including:

  • Nursing facility care
  • Home and community-based services, including MLTSS
  • Capitation payments (the cost of the Medicaid plan) made to managed care organizations on the recipient’s behalf — even if no specific services were rendered
  • Hospital and prescription drug costs related to long-term care

This broad scope means that recipients of home-based care programs are equally subject to estate recovery as nursing home residents. Families who chose home-based care assuming it carried no recovery risk should be aware of this.

What Does New Jersey Count as Part of the Estate?

New Jersey’s definition of “estate” for recovery purposes is broad — and broader than the probate estate in important ways. Under NJ DMAHS rules, an estate includes any property that belonged to the deceased at the time of death or at the moment prior to death, including:

  • The decedent’s home or share of a home
  • Bank accounts — whether solely or jointly held
  • Trusts and annuities
  • Stocks and bonds
  • Any other real or personal property

Critically, New Jersey’s rule extends to jointly held property. Even though a jointly held bank account or home typically passes to the surviving joint owner outside of probate — by operation of law — New Jersey treats the deceased recipient’s share as part of the recoverable estate. This is an area where New Jersey’s rules are particularly aggressive compared to some other states, which limit recovery to the probate estate only.

Families who added an adult child to a parent’s bank account or deed as a matter of convenience should understand that this titling arrangement may not protect those assets from MERP. See my earlier post on joint bank accounts and Medicaid eligibility for how account titling creates problems both during the Medicaid application process and after death.

When Will New Jersey Not Pursue Recovery?

Recovery is not automatic upon death. New Jersey is prohibited from pursuing estate recovery — or must defer its claim — under the following circumstances:

Surviving Spouse

DMAHS will not pursue recovery while a surviving spouse is alive. Recovery is deferred until after the spouse’s death. At that point, New Jersey may seek recovery from whatever remains in the estate — including assets that passed from the Medicaid recipient to the surviving spouse. This is an important planning consideration, particularly for couples who did not pursue Medicaid planning before the first spouse’s death.

Surviving Child Under 21

Recovery is deferred while the recipient has a surviving child under the age of 21. Once the child reaches 21, or upon the child’s earlier death, DMAHS may pursue recovery from remaining estate assets.

Blind or Permanently Disabled Child

Recovery is deferred while the recipient has a surviving child who is blind or permanently and totally disabled under Social Security standards. Recovery may be pursued after that child’s death or if the disability no longer applies.

Cost-Effectiveness

DMAHS has discretion not to pursue recovery if it determines that doing so would not be cost-effective. In practice, this exception applies to very small estates where the administrative cost of collection would outweigh the recovery amount.

The Hardship Waiver: Narrow in New Jersey

Federal law requires all states to offer a hardship waiver — a mechanism by which the estate representative can seek to have DMAHS waive or reduce its recovery claim based on undue hardship to the beneficiaries. Some states have adopted generous hardship waiver standards. New Jersey has not.

⚠️ Important: New Jersey’s hardship waiver rules are among the strictest in the country.   Under N.J.A.C. 10:49-14.1(h), New Jersey recognizes hardship only in very limited circumstances: when the deceased’s property is the sole source of income for one or more surviving family members, and pursuing recovery would likely cause those survivors to become eligible for public assistance or Medicaid. A waiver may also be considered if it would not be cost-effective to pursue recovery.

This standard is significantly narrower than the federal guidance, which suggests states also waive recovery against homes of modest value, income-producing family farms or businesses, and other compelling circumstances. New Jersey has not adopted those broader protections.

The practical consequence is that most NJ families who would otherwise qualify for a hardship waiver in other states will not qualify in New Jersey. An adult child who lived in and cared for a parent’s home, for example, would not qualify for a waiver simply because they stand to lose their residence — unless they can demonstrate they have no other source of income and would be driven to public assistance.

How New Jersey Places and Enforces Liens

When a Medicaid recipient dies and the conditions for recovery are met — no surviving spouse, no qualifying child — DMAHS will seek to be repaid up to the amount of all Medicaid assistance provided for services received at age 55 or older, including all capitation payments.

New Jersey does not typically force the immediate sale of a home to satisfy a MERP claim. However, there is an important exception to the deferral rule for family members residing in the home. Under New Jersey’s rules, if a family member of the deceased Medicaid beneficiary had continuously resided in the home prior to the beneficiary’s death, and the home was the beneficiary’s primary residence and remains the family member’s primary residence, DMAHS may record a lien against the property but will not enforce it until:

  • The property is voluntarily sold
  • The resident family member dies
  • The resident family member vacates the property

This deferral can provide meaningful relief for a family member — often an adult child caregiver — who has been living in the home. But it is a deferral, not a waiver. The lien remains. When any of the triggering conditions occur, DMAHS will pursue its claim from whatever value remains in the property.

Life Insurance, Annuities, and Burial Trusts

Life Insurance

Proceeds from life insurance policies are generally considered assets of the named beneficiaries — not the estate — and are therefore not subject to recovery, provided a beneficiary other than the estate is named. However, if a named beneficiary predeceases the Medicaid recipient and the estate becomes the default beneficiary, those proceeds become recoverable.

Annuities

Annuities that were not liquidated prior to Medicaid eligibility must name the State of New Jersey as the remainder beneficiary in the primary position — or secondary position if there is a community spouse or qualifying child. Upon the recipient’s death, the state collects any remaining principal or income from the annuity before any other beneficiary receives a distribution.

Irrevocable Funeral Trusts

Under New Jersey law, any funds remaining in an irrevocable funeral trust after reasonable funeral expenses have been paid must be forwarded to DMAHS if the deceased received Medicaid or public assistance benefits. This applies equally to burial insurance policies.

What the Estate Is Required to Do

The obligation to notify DMAHS falls on whoever is handling the estate — whether an executor, administrator, or family member. Under New Jersey’s rules, the estate representative must contact DMAHS in writing as soon as possible after the Medicaid recipient’s death to determine whether a claim exists. This notice must be sent before any assets are distributed to creditors or heirs (with the exception of reasonable funeral expenses).

Distributing estate assets to heirs before satisfying a DMAHS claim can expose the executor or administrator to personal liability. Written notice should be sent to:

DMAHS Office of Legal and Regulatory Affairs
Attn: Estates
PO Box 712 — Mail Code #6
Trenton, NJ 08625  
Phone: 609-588-3016

How to Protect Your Home and Assets From Estate Recovery

The most important thing to understand about Medicaid estate recovery is that it is largely avoidable with proper advance planning. The strategies that work best require time — ideally years — before a Medicaid application is filed.

  • Medicaid Asset Protection Trust (MAPT): Transferring a home or other assets into an irrevocable Medicaid Asset Protection Trust removes those assets from the recoverable estate, provided the transfer occurs more than five years before a Medicaid application. Assets held in a properly structured MAPT are not subject to MERP because they are no longer owned by the Medicaid recipient at death. This is the single most effective tool for protecting a home from estate recovery.
  • Life Estate Deed: A life estate deed transfers remainder interest in the home to children or other heirs while the owner retains the right to live there for life. However, this type of transfer must be made more than 5 years before the first Medicaid application. This strategy should only be used if the plan is to stay in the home permanently. If the Medicaid recipient vacates the home or if it is sold, it may affect the home's exempt status under Medicaid rules or be considered a receipt of assets. There are nuances to this approach and it is not appropriate in all situations.
  • Spousal planning: A home transferred to a community spouse during the Medicaid recipient’s lifetime can be considered an exempt asset.  Proper titling and estate planning for the community spouse can limit what remains in a recoverable estate at the survivor’s death. There are also potential pitfalls to be aware of such as the unexpected death of the community spouse before the Medicaid recipient.
  • Beneficiary designations and joint ownership: Unlike some states, New Jersey reaches jointly held property and certain non-probate assets for recovery purposes. Families should not assume that a joint account or payable-on-death designation will shield assets from MERP in New Jersey.

For a broader discussion of Medicaid planning strategies available to married couples, including some that require a more difficult conversation, see my post on Divorce as a Medicaid Planning Strategy in New Jersey.

Final Thoughts

New Jersey’s Medicaid Estate Recovery Program is real, it is active, and it reaches further than most families expect — including jointly held property, home-based care recipients, and assets that pass outside of probate. The hardship waiver is available in theory but rarely granted in practice under New Jersey’s narrow standards. The families who successfully protect their homes and assets are almost always the ones who planned ahead. If you or a loved one is aging or dealing with health concerns, the question of Medicaid estate recovery is worth discussing with an elder law attorney now — before a nursing home admission, before a Medicaid application, and before it is too late to take meaningful action.