by Jose D. Roman | May 21, 2025 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate
If you inherit a house in New Jersey with someone else and you disagree on whether it should be sold, the situation will likely fall under property law and co-ownership rules. Here’s an overview of your options:
1. Try to Negotiate or Reach an Agreement
- Discuss the situation with the co-owner to try and reach a compromise. This could involve buying out the other person’s share, agreeing to rent the property, or setting terms for its sale.
- Mediation with a neutral third party can help if direct negotiation isn’t successful.
2. Partition Action (Court Involvement)
- If you cannot agree, either party can file a lawsuit for partition in the Superior Court of New Jersey.
- A partition action can result in one of two outcomes:
- Partition by Sale: The court orders the property to be sold, and the proceeds are divided between the co-owners according to their ownership shares.
- Partition in Kind: If feasible, the court physically divides the property. However, this is rare for residential properties because splitting a house isn’t practical.
- Legal costs will be involved, and the court’s decision is binding.
3. One Party Buys Out the Other
- If one person wants to keep the house, they could offer to buy out the other’s share. An appraisal may be needed to determine the home’s fair market value.
- This option avoids the costs and delays of a court proceeding.
4. Co-Ownership Agreement
- If you and the co-owner can reach a temporary agreement, you might create a written contract outlining how the property will be managed, sold, or divided in the future.
5. Sale Through Agreement
- If both parties ultimately agree to sell, you can jointly list the house for sale and split the proceeds according to your ownership percentages.
Key Considerations:
- Legal Counsel: It’s advisable to consult a attorney experienced in New Jersey law. They can guide you through negotiations, prepare documents, or represent you in court if necessary.
- Costs: If the matter goes to court, both parties may incur legal and court fees.
- Time: A partition action can take months or even years to resolve.
- Property Expenses: Until the matter is resolved, co-owners are typically jointly responsible for property taxes, mortgage payments (if applicable), and upkeep.
by Jose D. Roman | Feb 12, 2025 | Estate Planning, Legal Bulletin, Power of Attorney
Recently it was reported that an Asbury Park resident was detained by ICE after dropping his child off at school. Situations like this raise the question of who will care for the child if the parent remains in custody or is deported. Will someone be appointed guardian? Navigating New Jersey’s guardianship laws can be daunting, especially when a parent is temporarily unable to care for their child. Fortunately, N.J.S.A. 3B:12-39 provides a practical, court-free solution: it allows parents and legal guardians to delegate parental authority through a properly executed Power of Attorney. This flexibility is a lifeline for families, particularly immigrant parents who face the ever-present risk of detention, removal, or deportation in today’s unpredictable socio-political climate.
A Modern Solution for Modern Challenges
Under N.J.S.A. 3B:12-39, parents, custodians, or guardians can delegate their authority over a minor child’s care, custody, or property to a trusted individual. The delegation can take effect immediately or upon the occurrence of a specific “activating event.” The statute explicitly identifies several such events, including:
- A determination by the parent’s, custodian’s, or guardian’s attending physician that they are incapacitated or debilitated.
- Immigration administrative action, such as detention, removal, or deportation, which may separate a parent from their child.
- Criminal proceedings.
- Military service.
This streamlined process empowers families to plan ahead, avoiding the delays, costs, and complexities of court-appointed guardianship.
Why This Law is a Game-Changer for Immigrant Families
For immigrant parents, the fear of sudden detention or deportation can cast a long shadow over their ability to care for their children. In a political landscape where immigration policies are constantly in flux, this law provides a critical safety net. By including “immigration administrative action” as an activating event, N.J.S.A. 3B:12-39 directly addresses the unique challenges immigrant families face, offering several key advantages:
- Proactive Planning: Parents can execute a Power of Attorney in advance, designating a trusted individual to step in if an immigration action occurs.
- Avoiding Traumatic Placements: With a delegation in place, children are less likely to end up in temporary group settings and can remain with someone the family knows and trusts.
- Preserving Parental Rights: Even after delegating authority, parents retain the right to revoke the Power of Attorney or resume decision-making when circumstances allow.
- Peace of Mind: Knowing that a legal framework exists to protect their children allows immigrant parents to face their challenges with greater confidence.
This legal tool ensures that children continue to receive the care and stability they deserve, even in the face of immigration-related disruptions.
Practical Steps for Parents and Guardians
If you’re considering delegating parental authority under N.J.S.A. 3B:12-39, here are some key steps to keep in mind:
- Free Forms v. Paying a Lawyer: While it is always best to consult an experienced lawyer, there are free forms available. In fact, the text of the law itself actually provides a form you can use. If you can’t afford an attorney you should stick with the language from N.J.S.A. 3B:12-39 or use forms published by trusted sources such as local law school legal clinics or government websites. Here is a form from Rutgers Law School, along with an FAQ to answer common questions. Here is a form published by the New Jersey Department of Children and Families.
- Tailor the Power of Attorney: The document should clearly outline the scope of delegated powers and specify which activating events will trigger the delegation (including immigration-related issues).
- Address Consent Requirements: Obtain the consent of both parents or explain why the other parent is unable to provide consent (deceased, incapacitated, whereabouts unknown, etc.). This is outlined in the law and should be addressed in the form.
- Execute Properly: New Jersey requires a Power of Attorney to be notarized. However, it is recommended that you execute the document before two witnesses and a notary.
- Understand Renewal and Revocation: Be aware that the delegation expires after one year (with possible extensions under exigent circumstances). It can also be revoked by you at any time.
By taking these steps, parents can create a safety net for their families, ensuring stability even in the most uncertain times.
Final Thoughts
The Minor/Parental Power of Attorney under N.J.S.A. 3B:12-39 is a testament to New Jersey’s commitment to protecting families in crisis. By allowing parents to delegate parental authority without court intervention, the law provides a practical, compassionate solution for families facing emergencies. For immigrant parents, who often bear the brunt of shifting immigration policies, this legal mechanism is more than just a tool—it’s a vital safeguard for their children’s well-being.
by Jose D. Roman | Feb 10, 2025 | Estate Planning, Guardianship, Power of Attorney
A Springing Power of Attorneyis a legal document that allows someone you appoint as your agent to manage your financial affairs, but only when a specific condition is met—typically, your incapacitation. Unlike a typical Power of Attorney, which takes effect upon signing, a Springing Power of Attorney “springs” to life when you (“the principal”) become unable to handle your own financial matters.
How to Create a Springing Power of Attorney in New Jersey
To create a valid Springing Power of Attorney in New Jersey, be mindful of the following:
- State Clearly that it is Springing: The Power of Attorney should clearly state that it is springing and specify the triggering event, usually incapacitation. The document should also outline how incapacity is determined. In New Jersey, this often requires written certification from two licensed physicians confirming that the principal is unable to manage their affairs.
- Appoint a Trusted Agent: Choose a responsible individual who will act in the your best interest and handle your financial matters effectively.
- Choose Alternates: It is highly recommended that you choose alternate agents in case your first choice is unwilling or unavailable to serve.
- Include Specific Powers: The document should explicitly list the powers granted to the agent, as powers not listed are often not recognized, especially by banks and other financial institutions.
- Meet Legal Requirements: New Jersey law requires the Power of Attorney to be signed before a notary public or an attorney. Because other states may require two witnesses as well, it is recommended that you also sign it before two witnesses. Any person you are designating as an agent should not serve as a witness.
- Distribute Copies: Provide copies to the appointed agent, financial institutions, and any relevant parties who may need to recognize the Power of Attorney when the time comes. Keep the original in a safe place that is accessible by your agent.
Why Choose a Springing Power of Attorney?
A Springing Power of Attorney offers additional protections over an immediate Power of Attorney. Reasons people may choose a Springing Power of Attorney often include:
- Discomfort with Relinquishing Control: Since the agent’s authority only activates upon incapacity, the principal retains sole control of their financial affairs while competent. With an immediate Power of Attorney, your agent may act right away, which may not be desirable if you are uncomfortable with the idea of an immediate Power of Attorney.
- No Close Relatives or Friends Available: Individuals often appoint their spouse, children or a close friend as agent. If you don’t anyone close to you who can serve as your agent, you may want to opt for a Springing Power of Attorney.
- Trust Issues: Perhaps you don’t completely trust your designated agent but still want to appoint the person in case something happens to you. A Springing Power of Attorney may be the appropriate solution in these circumstances.
Ultimately, aSpringing Power of Attorney provides a safeguard against financial mismanagement, as no one can act on the principal’s behalf unless they truly become incapacitated. However, there are potential downsides. Proving incapacity can be challenging, as physicians may be hesitant to certify incompetency, and financial institutions may require additional proof before recognizing the agent’s authority. After all one of the purposes of having a Power of Attorney is to make your life and your loved one’s lives easier often during a difficult time. A Springing Power of Attorney may add extra hurdles and stress.
When Does a Springing Power of Attorney Go Into Effect?
A Springing Power of Attorney becomes effective upon the happening of a condition specified in the document — most commonly when the principal is deemed incapacitated. Typically, this means:
- Two physicians certify in writing that the principal is mentally or physically unable to manage their own affairs.
- The agent presents these certifications along with the Power of Attorney document to banks and financial institutions.
- The entity accepting the Power of Attorney determines that the incapacity provisions have been satisfied.
Because banks and other financial institutions may have their own standards for verifying incapacity, the agent might face hurdles in getting the Power of Attorney recognized. To avoid complications, you should inquire about any such issues with your financial institutions ahead of time and consider opting for an immediate Power of Attorney.
Is a Springing Power of Attorney Different from a Durable Power of Attorney?
No is the short answer. A Durable Power of Attorney remains valid even after the principal becomes incapacitated. However, a Durable Power of Attorney can be either immediate (effective upon signing) or springing (effective upon incapacity). All springing Powers of Attorney must be durable; otherwise, they would become invalid when the principal loses capacity, defeating their purpose.
Conclusion
A Springing Power of Attorney in New Jersey can be a valuable tool for those who wish to retain sole control over their finances while they are capable but ensure that someone can manage their affairs if needed. When drafting a Springing Power of Attorney, it is crucial to carefully define the terms of incapacity and ensure that the document meets all legal requirements to avoid delays or challenges in enforcement. Consulting an estate planning attorney can help tailor a Power of Attorney to fit individual needs and ensure it aligns with New Jersey law.
by Jose D. Roman | Feb 6, 2025 | Estate Planning, Power of Attorney
The Social Security Representative Payee Program serves as an essential safeguard for individuals who receive Social Security benefits but are unable to manage their own finances due to disability, cognitive impairments, or aging-related challenges. This program is particularly important for young people with special needs or intellectual disabilities, as well as seniors who require assistance with their finances. Let’s explore how the program works, how a representative payee is appointed, and their responsibilities.
The Role of a Representative Payee
A representative payee is a person or organization appointed by the Social Security Administration (SSA) to manage Social Security or Supplemental Security Income (SSI) payments on behalf of a beneficiary who cannot do so themselves. The payee ensures that the funds are used for the beneficiary’s essential needs, such as housing, food, medical care, and personal expenses.
Why Power of Attorney is Not Accepted by the SSA
Unlike other financial institutions, the SSA does not recognize Powers of Attorney (POA) for managing Social Security benefits. Even if a person has a legally executed Power of Attorney, they must still apply and be approved as a representative payee to manage Social Security benefits on behalf of someone else. This distinction is critical because the SSA maintains strict oversight of how benefits are used to protect beneficiaries from potential financial exploitation.
How a Representative Payee is Appointed
The process of appointing a representative payee begins when the SSA determines that a beneficiary is incapable of managing their benefits. This can occur through medical evidence, reports from caregivers, or statements from the beneficiary themselves. If the SSA decides a payee is needed, they prioritize individuals in the following order:
- A legal guardian or custodian
- A close family member (spouse, parent, or adult child)
- A friend or other interested party
- An organization, such as a social service agency or nonprofit
The individual or entity seeking to become a representative payee must complete Form SSA-11 (Request to Be Selected as Payee) and provide supporting documentation. The SSA may also require an in-person interview to assess the applicant’s suitability.
Responsibilities of a Representative Payee
Once appointed, a representative payee has several crucial responsibilities:
- Managing Benefits Properly: The payee must ensure that the Social Security or SSI benefits are used for the beneficiary’s current and foreseeable needs, such as rent, food, medical expenses, and personal care.
- Budgeting and Financial Planning: Any remaining funds after covering essential expenses should be saved for the beneficiary’s future needs, ideally in an interest-bearing account.
- Preventing Misuse: The payee must never use the funds for personal expenses or any purpose that does not directly benefit the beneficiary.
- Reporting to the SSA: The payee must inform the SSA of any changes in the beneficiary’s circumstances, such as changes in living arrangements, work status, or medical conditions that may affect eligibility.
- Submitting Annual Reports: In many cases, a representative payee is required to submit an annual accounting report detailing how the benefits were spent or saved. This ensures transparency and accountability.
Managing the Beneficiary’s Money
A representative payee must keep the beneficiary’s funds separate from their own, preferably in a dedicated checking or savings account. The account should be titled to reflect the fiduciary role, such as “[Beneficiary’s Name] by [Payee’s Name], Representative Payee.” This prevents commingling of funds and ensures proper tracking of expenditures.
Final Thoughts
The Social Security Representative Payee Program provides critical financial management support for individuals who need assistance handling their benefits. Because the SSA does not recognize Powers of Attorney, it is essential to follow the proper procedures to become a representative payee. By understanding the appointment process, responsibilities, and financial management rules, representative payees can help ensure that vulnerable individuals receive the financial stability they need to lead secure and dignified lives.
by Jose D. Roman | Feb 3, 2025 | Estate Administration, Estate Planning, Legal Bulletin, NJ Supreme Court, Probate
On January 27, 2025, in In the Matter of the Estate of Michael D. Jones, Deceased (A-28-23) (088877) the Supreme Court of New Jersey addressed whether an ex-spouse’s right as the pay-on-death (POD) beneficiary of U.S. savings bonds was modified by the couple’s divorce agreement. The case, which involved the interplay between federal bond regulations and New Jersey’s estate and family law, ultimately affirmed that the ex-wife retained her right to the bonds despite the divorce.
Case Background
The husband purchased Series EE U.S. savings bonds during his marriage to his ex-spouse, designating her as the POD beneficiary. The couple later divorced and executed a divorce settlement agreement, which provided for certain asset distributions but did not explicitly mention the savings bonds. The settlement agreement also required him to pay $200,000 in installments. At the time of his death, the ex-wife had received approximately $110,000 of this sum. After his passing, she redeemed the savings bonds, which were valued at approximately $77,800. The estate, administered by his daughter from a prior relationship, argued that the bond redemption should count toward the outstanding settlement agreement payments, effectively satisfying his financial obligation. The trial court agreed, but the Appellate Division reversed the decision, holding that federal regulations governing savings bonds preempted state law, thereby affirming the ex-spouse’s entitlement to the bonds. The NJ Supreme Court affirmed the Appellate Division’s decision, though it disagreed regarding the issue of preemption.
Key Legal Issues
- Federal Preemption and State Law
- The Appellate Division held that N.J.S.A. 3B:3-14, which revokes certain property transfers upon divorce, was preempted by federal law regulating savings bonds.
- However, the New Jersey Supreme Court disagreed, stating that preemption was not at issue because the state statute explicitly defers to governing instruments, which in this case were the federal regulations governing savings bonds.
- Effect of the Divorce Settlement Agreement
- The court found that the settlement agreement was silent on the savings bonds and did not revoke the ex-spouse’s beneficiary status.
- A catchall provision in the settlement agreement stating that “any marital asset not listed belongs to the party who has it in their possession” was interpreted as reinforcing the ex-spouse’s claim to the bonds, because they were the husband’s before his death and immediately passed to the ex-spouse upon death.
- Right of Survivorship Under Federal Law
- Federal regulations establish that upon the death of a bondholder, the designated POD beneficiary becomes the sole owner.
- The court ruled that the trial court’s assumption that Michael intended to revoke Jeanine’s status was speculative and contrary to federal protections of survivorship rights.
Court’s Decision
The Supreme Court of New Jersey ultimately ruled that:
- Jeanine rightfully retained ownership of the savings bonds as the designated POD beneficiary under federal regulations.
- The bonds were separate from the $200,000 owed to Jeanine under the settlement agreement, meaning she was still entitled to the remaining balance of the settlement.
- The trial court’s ruling impaired the ex-spouse’s federal survivorship rights, a result not permitted under the governing regulations.
Implications and Takeaways
This case serves as an important reminder for estate and family law practitioners, particularly concerning the treatment of federal savings bonds in divorce settlements. Key takeaways include:
- Explicit Clarity in Divorce Agreements: Individuals going through a divorce should ensure that all assets, including savings bonds, are explicitly addressed in settlement agreements to avoid future litigation.
- Deference to Federal Regulations: State courts must recognize and uphold federal regulations governing financial instruments like U.S. savings bonds.
- Automatic Revocation Limitations: N.J.S.A. 3B:3-14 does not automatically revoke all beneficiary designations upon divorce when federal law dictates otherwise.
- Importance of an Estate Plan: The case highlights the importance of seeking estate planning guidance and understanding beneficiary designations, as well as probate versus non-probate assets.
By affirming the ex-spouse’s rights to the bonds, the court reinforced the importance of adhering to federal estate regulations while also ensuring fair application of state divorce laws. This ruling will likely guide future disputes involving federal financial instruments and marital property division.
by Jose D. Roman | Jan 26, 2025 | Estate Administration, Estate Planning, Last Will and Testament, Probate
When it comes to estate planning, creating a Will is one of the most important steps you can take to ensure your assets are distributed according to your wishes. However, many people are unsure about whether they need to register their Will in New Jersey. Here’s what you need to know.
Is Registration Required in New Jersey?
In New Jersey, you are not required to register your Will during your lifetime. Unlike some legal documents, a Will does not need to be filed or recorded with a government office until after the testator’s death (the testator is the person who created the Will). Until that time, your will is a private document that you can store wherever you choose.
What Happens After Death?
After the testator passes away, the original Will must be submitted to the Surrogate’s Court in the county where the deceased person resided. This is why it is important to let your loved ones know how to find your Will. This process is called probate. During probate, the court validates the Will and grants the Executor (the person named in the Will to carry out its instructions) the authority to manage the estate.
New Jersey’s Voluntary Will Registry
New Jersey law, specifically N.J.S.A. §3B:3-2.1, requires the Secretary of State to maintain a Will Registry. The registry is a voluntary service where individuals can record the location of their Will and the contact information of the person who holds it. It is important to note that the registry does not store the actual Will—only information about where it can be found. This service can help Executors and family members locate the Will after the testator’s death, avoiding delays and complications. To register a Will, you must complete a registration form and pay a small fee. The registration information is confidential and accessible only to authorized individuals after the testator’s death.
Benefits of Storing Your Will Safely
Although registering your will is not mandatory, it’s crucial to ensure the document is safely stored and easily accessible to your Executor. Some popular options for storing your Will include:
- Home Safes: A fireproof and waterproof safe at home can protect your Will from damage. Make sure someone you trust knows the combination or where to find the key.
- Attorney’s Office: Many estate planning attorneys will hold onto the original copy of your Will for safekeeping.
Final Thoughts
If your Will is lost or destroyed and no one can produce the original, the court may presume it was intentionally revoked. This can complicate matters for your heirs and lead to disputes. To avoid this, let your Executor or a trusted loved one know where your original Will is stored and consider utilizing the voluntary Will Registry.
Estate planning can feel overwhelming, but taking steps to protect your Will provides peace of mind for you and your loved ones. If you have questions about drafting or storing your Will, consult an experienced estate planning attorney who can guide you through the process.