Many times, many individuals name beneficiaries to accounts, insurance policies and real estate exterior of a Terminal Will or trust.  Upon death, buying of these assets immediately go to the named casher and not to the beneficiaries named in a will or trust.  These types are not subject to probate and are called "non-probate assets".

Finding out that a decedent owned asset(southward) not discipline to probate that became legally the property of the named casher or joint account owner is often shocking to named estate beneficiaries under a volition. Disputes often consequence.

Claims made against non-probate assets and the individuals who receive them can exist more often than not described as follows:

  • "Suspicious Gifts" made by a person prior to his or her death, often to a stranger or to a person in a close relationship to the decedent;
  • Transfers of funds, changes to ownership of assets and property, etc. made by the Ability of Chaser or legal representative who is not the owner;
  • Creation of Joint Accounts; changes to beneficiary designations to life insurance policies, depository financial institution and savings accounts, CDs, bonds, IRA's and other investments, etc., that transfer the full or partial value of the asset, investment to a person(s) named and not named in the Will or trust;
  • Tortious Interference with an expected Inheritance merits when a logical beneficiary is excluded from receiving all or a portion of the estate or receives a disproportionately small inheritance.

 Probate & Manor Litigation in New Jersey

Challenging Gifts Made Because of a Lack of Capacity, Financial Exploitation of an Older Individual

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Challenging Gifts Made Part 2

How to Defend Yourself Against Claims that Gifts to You lot Were Made Without Mental Capacity

Gifts Made Prior to Death

The burden of proving that a souvenir made past a decedent prior to death was made because of fraud, duress, diminished mental capacity and/or undue influence falls upon the party disputing the lifetime gift. When a beneficiary claims entitlement to this gift considering of a exact promise, or action taken by the decedent, or an incapacitated person prior to death, his or her proof must exist articulate and disarming that everything was on the "up and upwardly" and the gift was freely made.

A souvenir can be invalidated if a court finds that it was made because of the undue influence of the receiver over the donor.  If the party challenging the gift tin can evidence that the recipient and the maker of the souvenir shared a "confidential relationship", or when a donor of a gift is dependent upon the recipient of the souvenir (donee) a legal presumption arises that the donor did not understand the issue of his or her act and the donee must show that the donor "had the do good of competent and disinterested counsel." Similarly, when a physically or mentally weakened person makes a gift to a person upon whom the donor depends for assistance, companionship, affection, mobility, etc., and is left without adequate means of support, the presumption of undue influence is conclusive. However, if a person is non dependent upon the person to whom the souvenir was made, "independent advice prior to making the gift is not automatically a legal necessity to the validity of the souvenir fifty-fifty though the relationship between the parties was/is "one of trust and conviction." In general, the recipient of the gift has the burden to testify by clear and convincing evidence that "no deception existed before or at the time the gift was fabricated; no undue influence was used to cause the gift to be made; that all was fair, open up and voluntary, and the consequences of making the souvenir were well understood by the donor.

TESTIMONIAL

Fred handled my probate matter aggressively and passionately when a close family member tried to "screw" me out of my rightful inheritance. From day ane Fred was prepared to get to trial and as a result we settled the case on terms very favorable to me. I was very satisfied with his capable representation and I liked him a lot as a person.

– Alex Yudin – Southward River, NJ

Claims Confronting Beneficiary Designations to Joint Accounts, Life Insurance, IRA's and Other Investments

In full general, under New Bailiwick of jersey law (you can Google Due north.J.Due south.A. Section 17:16 1-5), the funds held in a joint business relationship, on the death of one of the owners, belongs to the surviving owner, unless there is clear and convincing evidence of a different intent at the time the account was created past the deceased joint possessor.

The creation of a joint account with a right of survivorship does not, by itself, constitute an irrevocable gift past the creator of the joint account to the other named party. Neither does the depositing of funds into the joint account by the creator while alive cause the funds of the account to automatically go the property of the survivor after death. A articulation account with a right of survivorship is often created for the convenience of the business relationship owner or in lieu of a written concluding Will, or equally nosotros say, a "poor homo'south will". Assets placed in accounts established for this purpose (convenience) remain the sole property of the depositor during life and become role of his or her estate. Articulation accounts may besides exist gear up up for other purposes, such as the convenient direction of the coin in the event of the depositor's death or incapacity or loss/reduction in mobility.

Thus, when an account or beneficiary designation is challenged, the assay focuses "on whether the depositor'southward intent in creating the account was to make an absolute gift of the account/nugget proceeds upon death or solely to constitute an cheap and elementary vehicle for the transfer of the account to beneficiaries through other means (A Concluding Will, Trust etc.) upon his or her death.

Did the Decedent Intend to Brand a Gift?

To constitute a souvenir there must be an unequivocal intent by the maker of the souvenir to requite a gift. This is called "donative intent". Allow's use an example. The cosmos of a joint business relationship, with a right of survivorship, in a bank or other fiscal institution does not, by itself, plant a gift past the creator of the account when he or she places another person's name on the account. Instead the analysis "turns on whether the depositor's intent in creating the business relationship was to make a gift or solely to constitute an account for convenience (being able to write checks and do the cyberbanking when necessary for the depositor). The most common situation is when a parent creates a articulation checking account, savings account, brokerage business relationship, or CD at the banking concern and names their power of attorney or a trusted family member (generally a child) as the articulation account holder. Many times, a parent does this for convenience purposes and then that the child, Ability of Attorney (POA) can make deposits and withdrawal of funds every bit needed and for the benefit of the parent.

Gifts Made Just Prior to Decease

A "gift" made just before death (commonly chosen a "death bed gift") is a souvenir fabricated by a dying person with the expectation of imminent or awaiting death. To plant a expiry bed gift, the gift must satisfy the following conditions: 1) The gift must be made by the donor with actual or intuitive knowledge of the donor'southward impending expiry; two) the donor must die of the disorder, disease, disease contemplated; 3) the donor must be competent at the time of making the gift even while facing his/her imminent death; 4) the donor must have intended to make the gift; 5) the donor must make an bodily delivery of the property/souvenir that is, unequivocal and consummate during the donor'south lifetime and; 6) the donee must have the gift.

All the above are important factors to go along in mind when contemplating a challenge to a gift made prior to expiry;

Gifts Between a Hubby and Wife, Especially in Second+ Marriages

Gifts betwixt spouses are common. Nonetheless, where a challenge arises, usually subsequently the expiry of ane of the spouses, the law requires clear and convincing evidence to establish the bona-fides of the gift between the spouses pre death. In the example of real property, a transfer from spouse to spouse is presumed to exist a gift. This is because near deeds are set up up as tenancy by the entirety or articulation tenants with a right of survivorship which automatically vests title in the survivor. However, the presumption is rebuttable. 2nd marriages and gifts excluding the children of outset marriages are often the nigh difficult and complex cases to evaluate and litigate. When gifts between a married man and wife are challenged by a loved one who feels the surviving spouse exerted undue influence or manipulative ways to cause the transfer by the deceased spouse, a existent battle generally follows.

Gifts Betwixt a Parent and Child Pre Death

Gifting betwixt a parent and child is also common. But here again the totality of the circumstances surrounding the gift must frequently exist looked at when the gift is challenged to ensure the bona-fides surrounding the gift. Beware when there is a transfer of assets and or real estate between a parent and only one of the children to the exclusion of all the surviving biological children.  Oft it is done under questionable and/or suspicious circumstances and is subject to legal claiming.  Also, beware of children who make transfers to themselves nether a Ability of Attorney given to them by a parent.

Transfers of Ownership to Life Insurance and Modify of Beneficiary Designations to Life Insurance Policies

Under New Jersey law, the involvement of a designated casher to a life insurance policy has been held to exist a vested property right. As such, the beneficiary's interest as "the casher" entitles him or her to the proceeds of the policy if he or she survives the insured. Entitlement to the expiry benefit can only be divested where there is a change of beneficiary designation accomplished nether the terms and requirements of the life insurance contract. If a beneficiary is named every bit "irrevocable" inside the policy, information technology is well settled under New Jersey insurance law that an "irrevocable casher" cannot be divested of his or her right to the proceeds of the life insurance policy by the insured without the written consent of the beneficiary.

An consignment or change of ownership of an irrevocable policy without the consent of the beneficiary is ineffectual as to the casher'south vested right to the proceeds of the death benefit, if there was no reservation of the correct to change the beneficiary in the executed life insurance contract.

Even if an insured owner of a policy reserves the right to change the policy, if a contractual agreement with respect to the policy has been fabricated with the beneficiary it can be classified as an "irrevocable" beneficiary designation and defeat any subsequent change to beneficiary designation.

Life Insurance Proceeds

Ownership of a life insurance policy and its death benefits or a change of beneficiary designation to receive expiry benefits may be challenged as a fraudulent gift. The brunt to prove the transfer of ownership or modify of beneficiary designation is upon the person challenge the legitimacy of the gift. Appropriately, the new owner or casher must show by articulate and convincing evidence an intent to designate the beneficiary as "irrevocable" such that the right to the proceeds of the life insurance policy vests in the casher exclusively. Many attorneys and others neglect to carefully analyze the significant bear on of a change of beneficiary designation to life insurance and other investments/assets. For all practical purposes it'south the beneficiary who gets the money in the end.

Gifts Between a Guardian and His or Her Ward

A very strong presumption exists against the validity of a gift made betwixt a ward to his or her guardian. The burden is on the guardian to show the absence and a lack of undue influence, diminished capacity and other outside factors upon the maker of the gift. If a gift is contemplated to be made to the guardian information technology is strongly suggested that conscientious planning and proof of independent and voluntary decision making by the ward be established. Legal counsel is strongly brash. If you consider yourself to exist the victim of a gift betwixt a guardian and his or her ward that deprived you of the value of that gift, you should immediately contact the states. Chances are we tin successfully challenge it.

GIFTS BETWEEN A GUARDIAN AND CONSERVATOR OUTSIDE OF NEW Jersey

Claims against guardians involving inappropriate behavior beyond state lines are becoming more and more than frequent. To appointment, in that location is relatively picayune published case law about this topic in New Jersey. In a recent unpublished only nevertheless well publicized determination, children of an incapacitated parent suffering from Alzheimer'southward pursued competing guardianship actions in New Jersey and Texas. The New Jersey Courtroom ultimately ended that it had chief jurisdiction over the case and ruled that the parent (mother) lacked legal and mental capacity and proceeded to set up aside her recently revised estate plan.

Where someone has misappropriated assets, either direct, as a power of attorney, or through the misuse of jointly titled accounts, a guardianship proceeding tin provide a legal means to recover the assets. Likewise, a guardianship activeness may besides be instrumental in restoring the original beneficiary designations to the alleged incapacitated person'due south fiscal accounts or otherwise render the situation to the prior status quo. In cases where a person has caused an declared incapacitated person'southward estate plan to be altered, a guardianship proceeding can be helpful in gathering evidence of undue influence and other legal courses of activeness to rectify the wrongdoing.

Also the economical considerations involved when filing a contested guardianship, it may exist as necessary on an emergent footing, to have decisive protective activity where there exists substantial elderberry corruption involving physical or psychological impairment. In these types of cases, the alleged incapacitated person may or may not be able to admit the abuse or is unable to stop the abuse without outside assistance.

Gifts between Powers of Attorney and Principals

In probate estate litigation and will contests, conflicts over a ability of attorney most oftentimes arise in ii scenarios. Commencement, when the agent uses the power of chaser for an improper purpose or second, when the amanuensis uses the power for his or her own do good, such every bit for the transfer of the principal'south assets and/or real estate to himself or herself. The traditional rule in New Jersey is that a ability of attorney document does not, in and of itself allow the agent to souvenir the principal'south assets to himself or herself or to others, unless clear language exists authorizing the gifting.

The third common dispute over the utilize and validity of a power of attorney is when the individual who holds the ability of attorney is attacked by 3rd parties who claim that the principal lacked capacity and was subject to undue influence, duress, etc. when he or she gave the holder of the power of chaser a gift. In this type of dispute (which is unremarkably the forerunner to a Will contest) a battle betwixt dueling power of attorneys occurs. One contestant causes the main to revoke the existing ability of chaser, end the agent'due south power and and so arranges for the primary to execute a new power of attorney with him or her or as the agent. As a rule, a principal has an absolute power to revoke a power of attorney at any fourth dimension, with or without reason and, with or without cause and thereby terminate the dominance of the agent to represent him or her. This analysis becomes complicated, of grade, when the chapters or free volition of the principal is in doubt.

Then of form are the cases when a ability of attorney is used after death. Here's the police force: A power of attorney is legally revoked and is no longer effective on the death of the principal.

Only beware! North.J.S.A. Department 46:2B-eight.5(a) states in function:

"The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or end the bureau as to the attorney-in-fact or other person who, without bodily knowledge of the death of the primary, acts in good faith under the power. Whatever activeness then taken, unless otherwise invalid or unenforceable, binds the principal successors in interest."

Notwithstanding the above, under all circumstances, an amanuensis nether a power of attorney may be required to give an accounting, to the chief or to the executor/administrator/trustee of the chief'southward estate, after the principal has died, if cause exists or demand is fabricated by a party interested in enervating such an accounting.

I covered a lot of information on this page.  Do you call up I've described your situation?  Retrieve you take a example or at present must defend against claims made on this page?  Then contact me today, price-gratis at (855) 376-5291 or email me at fniemann@hnlawfirm.com.  Nosotros'll go over all the facts to determine if legal action is in lodge and I'll explain things to you in plainly, simple English language.

Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Volition Contest Probate Litigation Attorney