· Bankruptcy
· Business Debt
· Living Will
· Probate
· Will/Trust/Estates
Bankruptcy
Introduction
There are many reasons for financial difficulties, such as loss of a job, death of a bread winner or too many credit card purchases. Money problems can be emotionally wrenching and seriously damage family relations.
However disturbing the idea of bankruptcy might initially seem, in feet, bankruptcy laws are there to help those who are unable to pay their bills. This pamphlet reviews your alternatives under the bankruptcy laws. Your lawyer can advise you about your options so that you can get the maximum advantage of the bankruptcy laws.
Alternatives To Bankruptcy
Ask your lawyer about the alternatives to seeking relief under the bankruptcy laws. One alternative is to contact your creditors to request a discount or additional time to-pay. Another alternative is to seek the help of a credit counseling service. These organizations, whether public or private, can help you manage your bills and work out an arrangement with your creditors. A third alterative is to borrow money to pay off your debts, replacing them with a single loan and one monthly payment. Such refinancing can make sense if the repayment period is extended at a lower interest rate. Each of these alternatives has benefits and disadvantages that your lawyer can explain. You may find that bankruptcy is your best option.
Choosing a Bankruptcy Option
There are two options under the bankruptcy laws: a liquidation or a repayment plan.
In a liquidation, also called a Chapter 7 bankruptcy, you sell your property and use whatever cash is generated to fully satisfy creditor claims. You will be allowed to keep certain kinds of property under the exemptions allowed by federal and state bankruptcy laws. The definition of "exempt property" differs in each state, and it can include clothing, furniture, household appliances, tools of your trade and perhaps your home or car.
In a repayment plan, sometimes called a Chapter 13 bankruptcy, you pay a portion of your monthly income to a trustee for distribution to your creditors. A repayment plan is useful when you are behind on your home or car loan. The repayment plan can be used to extend, for up to 5 years, the time period for paying your bills and might allow you to pay less than you owe. The extended payment period has the advantage of allowing you to make smaller payments. You will be allowed to keep part of your monthly income to pay for living expenses like food, clothing, rent and medicine.
To qualify for a Chapter 13 repayment plan, you must have regular income and your unsecured debts must not exceed $250,000. If your unsecured debts exceed $250,000, you may be able to qualify for a repayment plan under Chapter 11. Bankruptcy proceedings under Chapter 11 are more complicated than those available under Chapter 13.
After you begin a bankruptcy liquidation, you may not start another Chapter 7 Bankruptcy for 6 years. There is no waiting period after a Chapter 13 bankruptcy.
Your lawyer can study your situation and advise whether to seek a liquidation or repayment plan, the best bankruptcy alternative for you depends oh a number of things, including the source of your income, the amount and types of your bills, your desire to protect your cosigners and guarantors, and the importance to you of maintaining your record of paying your debts.
STARTING BANKRUPTCY PROCEEDINGS
Bankruptcy proceedings begin with the filing of bankruptcy forms at the federal courthouse. The forms are comprehensive and include thorough lists of your income sources, property, debts and living expenses.
About a month after your bankruptcy forms have been filed, a meeting of your creditors will take place. You will be required to appear at this meeting with your records. Although most creditors do not attend the meeting, those who do can question you about your income, property and debts. The main purpose of this questioning is to confirm that the information in your bankruptcy forms is correct and complete.
A lawyer can help you prepare the bankruptcy forms, attend the meeting with creditors and serve as your advocate with the judge, trustee and creditors.
DEALING WITH CREDITORS
Your lawyer can help you deal with your creditors before, during and after bankruptcy proceedings. Before starting bankruptcy proceedings, you are protected by laws that prohibit creditors from harassing you to collect money. Bill collectors may not contact you at unreasonable times at home, and they may not embarrass you by telling your friends, relatives or employers about your debt. Bill collectors may not contact you at work if they know that your employer disapproves. If you have a lawyer, bill collectors may only contact your lawyer.
During bankruptcy proceedings, you will receive additional protection from bill collectors. At the beginning of the proceedings, the court will order your creditors to stop their collection activities, including lawsuits, wage garnishments, repossessions and telephone; calls demanding payment. It is unlawful for your employer to fire you for seeking bankruptcy protection.
After the bankruptcy proceedings have been completed, you must take care when dealing with creditors. Some creditors may try to collect debts that were discharged by the bankruptcy proceedings. These creditors may ask you to renew the debt by signing an agreement to pay it Consult your lawyer when you are contacted by creditors so that you do not inadvertently obligate yourself to pay an old bill that was discharged by your bankruptcy proceedings.
WORKING WITH YOUR TRUSTEE
The bankruptcy court will appoint a trustee for your case shortly after bankruptcy forms are filed. In a liquidation proceeding, the role of the trustee is to sell your property and distribute the proceeds to your creditors. The trustee can also set aside fraudulent transfers and preferential transfers made to creditors within the 90 days prior to the bankruptcy proceedings. The trustee will also determine which items of your property are exempt from sale to pay your debts.
In a repayment plan proceeding, the trustee coordinates the arrangements between you and your creditors. The trustee will collect payments from you and distribute them to your creditors. The trustee is also responsible for approving any new credit obligations that you undertake before the completion of your repayment plan.
KEEPING YOUR PROPERTY
Your lawyer will advise you about the protection available for your property with a bankruptcy proceeding. For example, in a liquidation proceeding, the bankruptcy laws allow you to keep your exempt property.
Prior to beginning bankruptcy proceedings, your lawyer may advise that you sell some of your nonexempt property and use the cash to purchase exempt property. Although you may convert your nonexempt property into exempt property, you will be subject to severe penalties if you try to hide your property.
In a liquidation proceeding, you may be able to keep mortgaged property like a home or car if you "reaffirm" your loan with your lender. Reaffirming the loan means that you agree to pay it in full. The "reaffirmed" loan will not be affected by the discharge that you receive at the completion of the bankruptcy proceedings.
Any property that you receive after 180 days from the start of the bankruptcy proceedings is yours to keep, including inheritances, gifts and life insurance. Your lawyer may recommend that you speed up your bankruptcy filing if you expect to receive a substantial amount of property in the near future.
Effects of The Bankruptcy
The end of your bankruptcy proceedings can provide you with a "fresh start." The court order will end your responsibility for dischargeable debts. The order will not affect non dischargeable debts such as alimony, child support, educational loans, taxes or debts that you incurred by deliberately injuring someone. After the bankruptcy, your creditors may no longer try to collect the discharged debts.
Your bankruptcy proceedings will be noted on credit records for up to 10 years after your bankruptcy filing. During that time, lenders, stores and finance companies may consider your bankruptcy among the many factors they review when you apply for a loan or credit card. Surprisingly, since you cannot file again for Chapter 7 for 6 years, it may be easier for you to obtain a mortgage loan or installment credit for an auto or home appliance. An application for such credit is easier if you wait at least a year before applying for credit and show a history of paying bills on time after the bankruptcy.
Fees and Expenses
The bankruptcy courts currently charge a small filing fee to cover court costs. The fee is paid to the clerk when you file your bankruptcy forms at the courthouse. Additionally, the trustee will receive a fee of about 10% of the amounts paid to your creditors if you choose a repayment plan. v The fee charged by your lawyer will depend on the Complexity of your case. In bankruptcy matters, a lawyer's expertise usually results in savings that far outweigh the amount of legal fees.
Conclusion
You may need the protection of the bankruptcy laws if you are unable to pay your bills on time. Bankruptcy proceedings can help protect you against aggressive bill collectors and preserve as much of your property for you as possible.
A lawyer can advise you about your bankruptcy options and help you make the best of your situation. If you cannot manage your bills, call your lawyer immediately to learn about your rights and avoid missing advantages that can be lost with the passage of time.
Bankruptcy Checklist
- To discuss with your lawyer
BUDGETING FOR EXPENSES
- A. Housing
- B. Food
- C. Insurance
- D. Transportation
- E. Education
- F. Clothing
- G. Medical
- H. Child care
- I. Entertainment
WARNING SIGNS OF BANKRUPTCY
- A. Frequent calls from bill collectors
- B. Inability to pay bills
- C. Liens filed on your property
- D. Garnishment taken on your wages
- E. Foreclosure begins on your home
BANKRUPTCY ALTERNATIVES
- A. Asking creditors for time
- B. Seeking credit counseling
- C. Obtaining loan to pay bills
- D. Seeking bankruptcy liquidation (Chapter 7)
- E. Obtaining bankruptcy repayment plan (Chapter 13)
BENEFITS OF BANKRUPTCY PROCEEDINGS
- A. Creditors may not phone you
- B. Garnishment stops
- C. Repossessions stop
- D. Interest charges stop
DEBTS THAT MAY NOT BE DISCHARGEABLE
- A. Alimony
- B. Child support
- C. Educational loans
- D. Secured loans
- E. Income taxes
- F. Bills for luxury items
- G. Debts arising from drunken driving, willful and malicious injury, or fraud
PARTLY PROTECTED PROPERTY
- A. Primary residence
- B. Automobiles
- C. Household goods
- D. Bank accounts
- E. IRA/pension plans
- F. Boat
- G. Jewelery
- H. Computers and electronic equipment
OTHER PROPERTY
- A. Stocks and bonds
- B. Mutual funds
BANKRUPTCY SCHEDULES
- A. List of real properly
- B. List of persona] properly
- C. Properly claimed as exempt
- D. Creditors holding secured claims
- H. Creditors holding unsecured priority claims
- F. Creditors holding unsecured non priority claims
- G. Executory contracts and un-expired leases
- H. Co-debtors
- I. Current income of individual debtors
- J. Current expenditures of individual debtors
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Collecting Accounts Receivable & Business Debts
The Legal Aspects of Credit and Collections
To succeed, businesses must be paid promptly and in full. With the help of their lawyers, business owners and managers can collect promptly and protect their rights regarding credit and collections.
This pamphlet reviews the legal aspects of credit and collections, including credit checking; collection letters, and collection lawsuits. It covers collection techniques that apply to consumer accounts and commercial accounts—debts owed by individuals and by companies.
Adopting Policies and Procedures to Improve Collections
Carefully written credit and collection policies improve collections. \bur policies should cover procedures for using credit applications, handling billing, Sending collection letters and making collection phone calls. Your lawyer can help your company write credit and collection policies that will expedite payment of receivables and comply with debtor protection laws.
Using Credit Applications to Help Collections
Start with well thought-out credit applications. The application should contain crucial customer information—-the name, address and phone number of the Customer, the owners of corporate clients and credit references. Complete names and addresses will ease collecting delinquent accounts. Customers are willing to supply this information up front to avoid having to pay cash.
You can word the application so that your company has the right to collect interest when accounts are paid late and attorney fees if incurred. A credit application can also ask for personal guarantees of the individuals behind corporate customers or the guarantees of the customer's partners or spouse. This enables you to collect the debt from these other individuals if the customer does not pay it.
Writing Effective Collection Letters
When payment of a bill is late, companies ordinarily send a letter asking for prompt payment and requesting an explanation of why the bill has hot been paid. If the customer does not respond to the collection letter, a follow-up telephone call to the customer usually follows. Your lawyer can help you write collection letters that get customers to pay without unduly offending them. A script prepared by your lawyer for collection phone emails can encourage payment without violating the law.
A Lawyer Can Help You Collect Without a Lawsuit
When your company cannot collect business debts from a customer, your lawyer can send a letter to the customer on law firm stationary demanding payment and warning of legal action if the debt is not paid. Such a letter lets customers know that you intend to .pursue your legal rights to collect the debt and is often enough to cause the customer to pay in full.
In some instances, the customer may respond to the letter by explaining why the debt remains unpaid. The customer may have a justifiable claim for a bill reduction due to a product defect or late delivery. Or the customer may want to pay, but lacks the money. Initiating communication at the earliest possible time may uncover information about something you are doing wrong and help you with other customers. Your lawyer can help you to resolve matters without a lawsuit by settling any disputes and arranging payment schedules. Your lawyer may also suggest that delinquent customers sign promissory notes, furnish collateral, and provide personal guarantees of payment.
When a Lawsuit Is Unavoidable
Sometimes a lawsuit is the only way to collect a debt. Your lawyer may recommend a lawsuit after attempting to collect with a demand letter and investigating your customer's ability to pay. For example, you may have to sue a solvent customer who refuses to pay without justification or who fails to respond to your lawyer's letter and follow-up phone call. If the customer is out-of-state and is not subject to jurisdiction of your state's courts, your lawyer may recommend referring the matter to a lawyer in that state. Be sure your credit and collection policy names the employee responsible for working with your lawyer so that critical time is not lost;
Commencing suit may cause the customer to pay. In other cases, the customer may ignore the lawsuit, or hire a lawyer to defend it. If the customer fails to pay after commencement of the lawsuit, your lawyer will take the necessary action to continue it, such as motions, discovery of information and, if necessary, trial. If the customer does not have a valid defense, the action should result in a court judgment in your favor.
Collecting Your Judgment
The judgment may not be the end of the procedure. After obtaining a judgment, your lawyer will help you collect it. The first step may be the filing of a copy of the judgment with the county clerk to obtain a "lien" against any real estate owned by the customer. If the debtor still doesn't pay, your lawyer may find other assets of the customer which the sheriff can sell to pay your judgment.
In appropriate cases, your lawyer can help you to "pierce the corporate veil" and collect assets from a corporation's shareholders. If the customer has transferred assets to others to avoid paying the judgment, your lawyer may help you cancel these transfers, sell the assets and collect your judgment.
Recovering Your Merchandise
You may have a legal right to reclaim merchandise when a customer fails to pay immediately after it is delivered. Particularly, when a customer declares bankruptcy, your lawyer can help you act promptly since you can lose your right to reclaim the goods if you fail to demand recovery within ten days or if the goods are sold by the customer.
Before selling to a customer whose financial condition is doubtful, ask your lawyer to help you take action to protect your right to collect. Your lawyer may suggest precautionary measures, such as taking a security interest, or utilizing collateral, or keeping legal title to the merchandise until you have been paid in full.
Handling Full Payment Checks
Sometimes a customer pays an account with a check for k-ss than the amount due on the account and writes "payment in full" on the hack of the check Your company's credit and collection policies should instruct employees to contact your lawyer he-fore depositing such ''payment in full" checks. In some cases, your legal rights can he preserved hy endorsing the check with the words "without prejudice". In other situations, your right to pursue the unpaid balance of a customer's debt will be lost if you deposit the check, regardless of how you endorse it. Your lawyer can analyze the facts, advise whether you should return the check or cash it. and recommend steps to collect the unpaid balance.
Legal Fees In Collection Matters
Your lawyer can help you find a mutually agreeable basis for legal fees for services in collection matters. Fur some cases, it may he appropriate to pay a contingent fee based on a percentage of the amount collected. In other cases, a flat rate or hourly fee might he best. Sometimes your lawyer may suggest a combination of fee arrangements, like a contingent fee combined with :i "lump sum" suit fee if it becomes necessary to file a lawsuit. Once you agree on a fee arrangement, your lawyer may follow-up with a letter to confirm it.
Conclusion
Your lawyer can help you collect more quickly and avoid "writing off" uncollectible bills. Your lawyer will help you implement legally effective credit and collection policies, keep you out of lawsuits with out-of-court settlements, and act as \ our advocate when lawsuits are unavoidable.
COLLECTION CHECKLIST
Credit procedures
- A. Credit applications
- B. Credit reports
- C., Credit approval
Credit Terms
- A. Interest
- B. Attorney fees
- C. Remedies for default
Contract forms
- A. Sales confirmation
- B. Sales agreements
- C. Service agreements
- D Master agreements
Installment sales
- A. Payment schedule
- B. Retention of title
- C. Chattel mortgage
- D. Insurance
Collection procedures
- A. Billing
- B. Monthly statements
- C. Follow-up letters
- D. Follow-up phone calls
- E. Referral to collection lawyer
Accounting and record keeping
- A Review of receivables
- B. Adjustment of reserves for bad debts
- C. Review of disputed accounts
- D. Review of litigated accounts
Special problems
- A. Full payment checks
- B. Reclaiming goods from insolvent customers
- C. Filing proof of claim for bankrupt customers
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WHY YOU SHOULD HAVE A LIVING WILL
Living Wills, or advanced health care directives, are documents containing instructions as to your personal health care decisions in the even you are no longer able to communicate or make those decisions yourself. The advanced health care directive may contain an "instruction directive" and/or a "proxy directive." It is recommended that both are included.
INSTRUCTION DIRECTIVE:
An instruction directive contains the individual's preferences regarding health care, medical treatment and surgical treatment including the acceptance or refusal of life sustaining treatment.
PROXY DIRECTIVE:
A proxy directive, or power of attorney for healthcare decisions, appoints an individual, or individuals, to make decisions concerning medical treatment.
BENEFITS OF AN ADVANCE DIRECTIVE:
- · Increases the likelihood that the individual preference will be respected.
- · Decreases the possibility of litigation between family members, doctors and health care institutions.
- · Assists the family in making difficult health care decisions.
- · Assists health care institutions by providing a representative with whom they can communicate regarding the care of an individual
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Probate
What is 'probate'?
Probate is the process that transfers legal title of property from the estate of the person who has died (the "decedent") to his or her proper beneficiaries.
The term "probate" refers to a "proving" of the existence of a valid Will, or determining and "proving" who one's legal heirs are if there is no Will. Since the deceased can't take it with him, probate is the process used to determine who gets his or her property
Why is probate necessary?
The primary function of probate is transferring title of the decedent’s property to his heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
Another function of probate is to provide for the collection of any taxes due by reason of the deceased's death or on the transfer of his or her property.
The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate's property to ones' rightful heirs.
Who is responsible for handling the probate process?
The Personal Representative (sometime also referred to as the "executor" or "executrix" if there is a Will, or the "administrator" or "administratix" if there is no Will) is appointed as part of the probate proceeding and has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures.
In many states, the probate court has a considerable amount of control over the activities of the Personal Representative, and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may take place.
What are the main duties of a personal representative?
The main tasks of a Personal Representative are to:
- determine if there are any probate assets;
- identify, gather, and inventory the assets of the deceased;
- receive payments due the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits);
- set up a checking account for the estate;
- figure out who is going to get what and how much under the Will (if there is no Will, the state’s "interstate succession laws" apply);
- value or appraise the estate’s assets;
- give legal notice to potential creditors (the procedure and deadlines for creditors to file claims vary from state-to-state);
- investigate the validity of all claims against the estate;
- pay funeral bills, outstanding debts, and valid claims;
- pay the expenses of administrating the estate;
- handle various paperwork, such as discontinuing utilities and charge cards, and notifying Social Security, Civil Service, and Veterans Administration of the death;
- file and pay income and estate taxes;
- distribute the remaining property in accordance with the instructions provided in the deceased’s Will; and
- close probate.
Can I handle probate without a lawyer?
While there is no requirement to use a lawyer, probate is a rather formalistic procedure. One minor omission, one failure to send Great Aunt Tillie a copy of the petition, or a missed deadline, can cause everything to come to a grinding halt or expose everyone to liability.
The death of a family member or friend sometimes tends to bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one's death, such as who gets the iron frying pan and who gets the kettle. Such minor matters, or any delays or inconveniences can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus it generally is a very good idea to "let a lawyer do it". [Go Back]
Will/Trust/Estates
Everyone owns something and therefore is an owner of property - real or personal - and has an estate. REAL PROPERTY is land and buildings. Everything else that may be owned is called PERSONAL PROPERTY, such as bank accounts, stocks, bonds, furniture, automobiles, money, life insurance, jewelry and other personal effects.
It is the owner's privilege to select to whom his/her estate will go. You may chose one of several ways to dispose of your estate - by a Will, by creating a trust or joint ownership, or by letting the law distribute your property.
YOUR WILL
Making a will is an important step in your financial management program. To save your heirs time and money, you can plan now for the orderly transfer of your property.
Making a Will will avoid the cost of a bond and possible disagreement among those who are to receive your property. You decide to whom, when and in what amounts your assets should go. You select your executor or personal representative, the one who shall be responsible for the disposition of your estate. You may avoid a forced sale of your property, or costly and tedious applications to the courts for the right to sell it. You have greater assurance that your plans will be carried out as you desire.
Without a Will your estate must be distributed according to the intestate laws, the provisions of which are general and inflexible. The law will say who shall administer your estate, among whom, and how it shall be divided. If you do not name and executor or personal representative, your property may not be distributed as you wish, and thus cause hardship for those you want to safeguard. Without a Will you lose the privilege of naming a guardian for your minor children. This is vital, particularly if your spouse should not survive you. If you leave no immediate family, failure to leave a Will may result in your property going to persons in whom you have no particular interest.
STEPS IN PREPARING A WILL
A document that will stand up in court, and tailor-made to meet the needs of your family, must be thought out carefully by you. The Will can be prepared by an attorney who specializes in Will drafting or estate planning. The attorney can guide you to the best decisions - but only after obtaining all the facts that you alone can give. Thus, you can be sure that you Will is properly phrased, witnessed, and has all the technicalities observed.
THINGS TO KNOW WHEN MAKING A WILL
- You don't need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.
- You can change your Will at any time you wish, as your assets, beneficiaries or desires change.
- Your Will is not recorded before death; no one need know of it if that is your wish.
- The existence of the Will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.
- While the law permits a beneficiary to witness a Will, it is recommended that a beneficiary witness be used only when a disinterested party is not available, in order to avoid future challenges as to conflict.
Start by making a list of everything you own and owe - a statement that will show exactly where you stand financially. Decide to whom you will leave your real and personal property. Be certain you have stated just what your wishes are by making a list of the persons involved, their relationship to you, your objectives, when their bequest is to be given, and how it is to be provided.
NOTE: You may make bequests to friends or charities. It is not mandatory for you to make bequests only to family members.
Select an executor, executrix, or personal representative to administer the Will. This may be a beneficiary of your estate, a member of the family, your legal or financial advisor, a trusted friend or business associate. You should name a contingent executor or personal representative to act in case your first selection dies before you, or is unable to serve.
A bank can act as an executor, personal representative, trustee under a trust, or guardian of either a minor or incompetent person. A bank is experienced and familiar with accounting and management details. It is financially responsible and a continuing institution - an individual may die, but a bank has continued life.
In selecting your executor or personal representative and trustee, the choice should be businesslike, not sentimental. Your executor or personal representative has the important responsibility of settling your estate and seeing that the wishes expressed are faithfully carried out.
Here are a few of the things an executor or personal representative may be required to do, in addition to seeing that the Will is offered for probate:
- Qualify as executor, (also known as Personal Representative), obtain a certificate of authority, and if necessary, execute a bond.
- Locate and take possession of all property, discover and assert all rights and line up claims owed by the estate.
- Prepare and file an inventory of all property and interest of any kind belonging to the estate, listing the appraised value.
- Review all assets, liquidating those of doubtful character.
- Advertise for claims and pay them in the order cited by law.
- Collect monies due the estate.
- Figure and pay taxes.
- Pay legacies under the Will.
- Distribute the estate.
- Make final accounting to the court, if required.
It is important that you name a guardian if you have minor children.
SIGNING YOUR WILL
A will must be written, signed by the testator (maker) and witnessed. The original copy is the legal document and must be signed.
In New Jersey, a Will, to be admitted to probate at the Surrogate's Court, must have at least two witnesses. The testator and the witnesses are required to be present at the signing, and each must see the others sign. The witnesses do not have to read it or know what it contains. However, they must be told by the testator that it is his/her Will, and asked to sign as witnesses.
The witnesses should be likely to outlive the testator and remain in the community. If you do not have a self-proven Will, the whereabouts of your witnesses should be known at all times.
SELF-PROVEN WILLS
If the witnesses and the testator execute an affidavit before a Notary Public, it will not be necessary for either of the witnesses to appear in Surrogate Court at the time of Probate. Your attorney can review your Will and advise you as to whether it can be made self-proven and prepare the proper Affidavit to comply with the law.
COMMON DISASTER CLAUSE
A well-drawn Will contains a common disaster clause to establish contingent beneficiaries if both husband and wife die within a stated period of time. Without such a clause, if both husband and wife die with no way to determine who died first, their individual property is disposed of as if they had died a widow or widower.
SAFEKEEPING YOUR WILL
Keep your will in a safe place, but let the executor know where it can be found. If kept in a safe deposit box, it usually can be removed by the executor in the presence of an employee of the bank immediately after death. Husband and wife should have their own wills. They each should know where both are kept.
KEEPING YOUR WILL UP TO DATE
Periodically review your Will to keep it up to date. Keeping it current is just as important as making one in the first place. Changes in your life such as marriage, birth of a child, death, change of witnesses, purchase or sale of property, a change in your financial status - or a change in the estate tax law may make important revisions or a new Will advisable.
A Will drawn in another state can be valid; however, revisions in relation to New Jersey laws may be prudent. You are free to change your Will at any time.
HOW TO CHANGE YOUR WILL
The safe way to change your Will is to have a new one drawn; however a codicil may be effective.
A codicil is a separate document used to make minor changes. It must be signed with the same formality as the Will itself. It is not necessary to have the same witnesses on the codicil as the original Will.
Do not try to change your Will by drawing lines through items, erasing, writing over or adding notations. This may destroy it as a legal document.
"DYING WITHOUT A WILL"
Intestate Succession
When no Will Exists, Real and Personal property is not distributed according to the decedent's wishes. Rather, it is distributed according to the statues of New Jersey.
How will your property be divided if you have no Will? The following chart shows how an Estate is distributed in New Jersey if you do not leave a Will.
If you die without leaving a Will and are a resident of New Jersey, the State law provides the manner for distributing your property. Your net estate remaining after deduction of debts, taxes, family exemptions, etc., would be distributed under the Statutes governing Decedent's Estates and, in the case of most common occurrence, the heirs who would receive such property are as follows:
Property owned jointly by husband and wife is automatically owned by the survivor. The following charts show the distribution of separately owned property. (Effective September 1, 1978)
If You Die Leaving:
Wife or Husband and Child or Children (also of Survivor) or their Descendants
- · Wife or Husband receives $50,000 plus one-half of balance
- · Child or Children receive other one-half of balance divided equally
- · Grandchildren take their deceased parent's share unless all children be deceased, then all grandchildren share equally
Wife or Husband and Child or Children (one or more not Child of Survivor) or their Descendants
- · Wife or Husband and Child receives one-half
- · Child receives one-half or Children receive one-half divided equally
- · Grandchildren take their deceased parent's share unless all children be deceased, then all grandchildren share equally
If You Die Leaving:
Wife or Husband but no Children or their Descendants
-and-
(a) If your Mother and Father survive
- · Wife or Husband receives $50,000 plus one-half of balance
- · Mother and Father, or survivor, receives other one-half of balance
(b) If no Parent Survives
- · Wife or Husband receives all
If You Die Leaving:
Child or Children but no Wife or Husband
- · Child or Children receive all divided equally
- · Grandchildren take their deceased parent's share unless all children be deceased, then all grandchildren share equally
If You Die Leaving:
No Wife or Husband and No Children or their Descendants
-and-
(a) If your Mother and Father survive
- · Mother and Father, or survivor receive all
(b) If No Parent survives
- · Brothers and Sisters receive all divided equally
- · Nieces and Nephews take their deceased parent's share unless all brothers and sisters be deceased, then all Nieces and Nephews share equally.
More Remote Cases
The State of New Jersey takes your property if you leave no wife or husband; child or its descendants; parent; brother or sister or their descendants; grandparent; or uncle or aunt or their children; or their grandchildren.
NOTE: Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession. WHY EVERYONE SHOULD HAVE ONE. [Go Back]
Contact the Falcón Law Firm, LLC to schedule a free initial consultation with a trusted attorney.
Personal Attention — Not Just Legal Action
