In recent years, a common issue that a growing number of individuals face is how to care for themselves as they age. Healthcare, finances, and even routine errands can pose a significant challenge. Proper planning can ease the burden, but improper planning can create significant risks for both you and your heirs.
One easy trap for individuals to fall into is the creation of a joint checking account, or the addition of another person to an existing checking account, for the purposes of managing finances and purchasing daily essentials. The idea behind the strategy is to enable another individual to pay for your care when you no longer possess the ability. It not only serves as a matter of convenience in that you do not have to consistently reimburse others for expenses, but it also grants another individual the authority to ensure that your finances are in order. Moreover, this strategy involves a fairly simple process of a single trip to the bank and, in certain circumstances, no fee. But, the ease of this strategy comes with a cost. Upon your death, your heirs may not receive the money that you have deposited in that joint checking account.
Under New Jersey law, joint bank accounts are presumed to be created with a right of survivorship. This means that the surviving account holder would be entitled to all of the money deposited in the account, regardless of whether the surviving party deposited any money in the account and regardless of whether you actually intended that result. As a result, the money would never enter into your estate and never be paid to your heirs, even if that is what you actually intended.
Though, if you did not intend for the surviving account holder to acquire the whole interest in your joint account, your heirs may still protect your interest and rebut the presumption of survivorship. Courts have found that heirs have successfully rebutted the presumption of survivorship rights where there is a demonstration that the joint checking account was exclusively intended for the convenience of the true owner of the money in the account. As discussed above, this may come where the surviving party is added for the sole purpose of assisting the true owner in his or her financial affairs. Additionally, courts have found that heirs have successfully rebutted the presumption of survivorship rights where there is a demonstration of a confidential or close relationship between the surviving party and the true owner. If a confidential relationship is established, then the surviving party would be required to demonstrate that he or she did not exert any undue influence over the true owner in acquiring an interest in the joint checking account. While these methods can be used by your heirs to protect you actual intentions and interests, either method will most certainly involve litigation.
In planning your estate you can avoid future litigation and disputes through proper planning and full understanding of the legal implications of certain actions. Though a joint checking account may serve your short term needs, perhaps a power of attorney may be better serve your long term desires. Proper planning avoids unwanted outcomes. It can provide for your care and ensure that your heirs inherit your estate in accordance with your intent.
If you are looking to plan your estate or if you are an heir to an estate which you believe does not represent the intent of a deceased individual, it is strongly recommended that you consult with an attorney. The attorneys at Stark & Stark are very familiar with these issues and would be happy to guide you through the process.
The insurance industry is reacting to the recent realities that the Ebola virus has the potential to have an impact on U.S. based businesses. NAS Insurance Services recently announced that it will offer Ebola Business Interruption Coverage in conjunction with Prospect Insurance Brokers Ltd and the Ark Syndicate at Lloyd’s of London. This coverage is intended to fill a gap that exists in current Commercial Business Owner policies. Continue Reading
On October 25, 2014, Stark & Stark’s Beer & Spirits Group presented to local entrepreneurs “Legal Considerations for Start-Up Distillers in New Jersey” at Cooper River Distillers in Camden, New Jersey. Enacted in December of 2013, N.J.S.A. 33:1-10.3d allows for Craft Distillery Licenses to be issued in New Jersey.
Marshall Kizner, co-chair of Stark & Stark’s Beer & Spirits, group commented, “The new distillery license offers exciting opportunities for both local economies and entrepreneurs. The Beer & Spirits group is here to help businesses navigating not only the new law, but also related issues, like employment policies, land use and zoning issues, real estate leases, vendor purchase agreements and protecting intellectual property rights.”
Stark & Stark’s Beer & Spirits group provides sound legal counsel to the craft beer and distillery industry in New Jersey and Pennsylvania. For more information contact Marshall Kizner, co-chair of the Beer & Spirits group, at (609) 219-7449 or email@example.com.
Virtually every homeowner at some point has hired a home improvement contractor to provide materials or services with regard to work on their residence, whether to increase the value of the home, or simply to perform repairs due to damages caused by other circumstances. Obviously, if the home improvement contractor does an extraordinary job and comes in on budget then this blog is not intended for you. On the other hand, should you experience difficulties with the work performed or the materials provided by the home improvement contractor this blog may provide some guidance in making the determination whether to file suit against your contractor.
Issues which can be caused by a home improvement contractor can involve the failure of the home improvement contractor to complete the work, issues with the work completed by the home improvement contractor, overbilling by the home improvement contractor, issues with the work failing township inspection, and other inter related issues. If you are able to work out acceptable arrangements with the home improvement contractor to address these issues then a law suit may not be in your best interest. On the other hand, should you be at an impasse with the home improvement contractor, you should explore your options as to filing suit. Obviously, one of your primary concerns would be having the work completed so that you can continue living in your residence. Should you choose to terminate the home improvement contractor and hire a new entity, it is extremely important that you document the current status of the work left by the home improvement contractor before the new contractor commences work. It is also important that you provide written notice to the home improvement contractor that you will be terminating it and also that you give it the ability to inspect the issues and to propose a plan or resolution prior to formal termination. If the home improvement contractor has simply abandoned the site this may be unnecessary.
Once you have retained a new substitute contractor, it is important that this contractor clearly document any issues which they are correcting due to improper work by the previous contractor and to detail any additional costs which are occasioned by the improper work. One of the most effective ways to do this is to take a multitude of photographs and to provide writings which evidence the issues. In general, the more documentation you have – the better. Hopefully, the remediation will continue and the project will be finished by the new replacement contractor. Once this is done, you will then have to determine whether it makes sense to sue the home improvement contractor who previously breached. This determination involves a multitude of factors.
The first factor you must consider is the damages you might recover in suing the home improvement contractor. In essence, this would be the additional funds you paid to have the job completed properly by the replacement contactor above the original contract price with the original contractor. You may also be entitled to incidental and consequential damages due to the breach by the previous contractor. Once you have determined this figure, you must make a determination whether or not it makes sense to retain an attorney to file suit. Clearly, pursuing a lawsuit is not cheap, and therefore, there must be a substantial loss which would justify a lawsuit.
There may be other factors which may weigh in favor of filing a lawsuit, or against filing a lawsuit. It is suggested that you consult with an attorney at this time prior to simply going forward blindly. The attorneys at Stark & Stark are very familiar with this sort of issue and would be happy to guide you through the process.
It is not uncommon that a Will may be executed by a decedent either relatively close to the time they pass away, or even immediately prior to their passing. If a dispute arises as to the validity of a Will under these circumstances, one of the grounds for attack would be that the decedent lacked the required capacity to execute the Will on the date that it was signed. If a party is able to prove that the decedent lacked the capacity to execute a Will on the date that the Will was executed, the Court will invalidate it. The following paragraph explains what the necessary capacity is to execute a Will.
The capacity to execute a Will is different from a finding of competency. In general, the capacity to execute a Will is a fairly low bar to hurdle. At the time the Testator executes the Will, they must understand that they posses certain items, and moreover, they must understand to whom they wish to convey the specific items. The Testator need not understand all of the legal intricacies of the execution of the Will, but instead, need only understand that he or she has certain property which he or she wishes to convey and to whom he or she wishes to convey the property. At the same time, there must also be an understanding by the decedent that he or she was specifically aware as to the property which he or she possessed. In other words, if the decedent thinks that they are only conveying one dollar, but instead, they are transferring one million dollars a challenge to the Will may be successful. On the other hand, the proponent of the Will need not prove that the decedent would pass a competency test in order for the Will to be valid. Instead, the minimal standard cited above need only be met.
In determining whether a decedent had the requisite capacity to execute a Will, medical records often come into play which might evidence the physical and mental health of the decedent at the time the Will was drafted and executed. Equally important, however, is testimony from witnesses who made direct observations of the decedent at this same point in time. In general, it is a combination of both witness testimony and medical records which are relevant in determining whether the decedent had the capacity on the date the Last Will and Testament was executed.
When seeking to invalidate a Will based upon the lack of capacity, or to support it based upon an allegation that the decedent possessed capacity, it is important that the parties consider all medical evidence, all witness testimony, the nature of the bequest, and whether the decedent had an understanding as to the property that he or she possessed and a corresponding Estate Plan which appears rational in nature. As such, should a party be faced with defending a Will based upon an allegation of lack of capacity or seek to invalidate one, it is suggested that this party consult with an attorney to properly prepare the defense or the prosecution of the case. The attorneys at Stark & Stark are well versed in this area and can guide you through this difficult process.
On October 16, 2014, the Appellate Division issued a case for publication concerning a tenant’s right to transfer a non-payment eviction matter to the law division. The Appellate Division in Bejoray, Inc. v. Academy House Child Development Center, A-5161-12T3 held that a tenant’s request to transfer an eviction matter, when it asserted claims for negligent misrepresentation and breach of contract for damages and rescission of the lease, should have been granted. This case is very important for commercial landlords in New Jersey as it raises a number of issues that should be addressed prior to proceeding with an eviction action. Continue Reading
Stark & Stark Shareholder Jerry A. Nelson, member of the firm’s Commercial, Retail and Industrial Real Estate group, will be a speaker at the International Council of Shopping Centers 2014 U.S. Shopping Center Law Conference.
This 44th annual U.S. Law Conference will be held on October 22-25, 2014 at the JW Marriott Orlando Grande Lakes in Orlando, Florida. According to the International Council of Shopping Centers, the 2014 U.S. Shopping Center Law Conference provides retail real estate professionals the opportunity to gain industry-specific knowledge and insight from leading authorities, network with 1200+ industry peers, and earn general and ethics CLE credits. Mr. Nelson has spoken at past U.S. Law Conferences and was selected again this year as a Roundtable Speaker to discuss maintaining lease guaranty enforceability.
Stark & Stark Shareholder Scott I. Unger, member of the Litigation and Shareholder & Partner Disputes Groups, authored the article “Former Los Angeles Clippers Owner’s Breach of Fiduciary Duty Claims,” which was published on September 16, by the American Bar Association.
The article discusses the recent civil suit that former Los Angeles Clippers owner, Donald Sterling, filed against the National Basketball Association (NBA) and its commissioner, Adam Silver. “The complaint seeks compensatory damages in excess of $1 billion along with injunctive relief.” Mr. Under explores the complaint in detail and discusses the legal issues involved.
After his analysis, Mr. Unger concludes, “The plaintiffs’ breach of fiduciary duty claim faces a number of legal hurdles. Convincing the court of the existence of a fiduciary relationship between the plaintiffs and the defendants and a breach thereof will likely require a high level of creativity. The plaintiffs’ counsel, frankly, faces an uphill battle.”
You can read the full article on the American Bar Association’s website by clicking here.
Stark & Stark Shareholder Jerry A. Nelson, member of the Commercial, Retail & Industrial Real Estate Group, authored the article “Landlord Wins Insurance Payment Due to Lease,” which was published on October, 9 2014 in the Mid Atlantic Real Estate Journal.
The article discusses the importance of drafting up good leases. He references the recent case In Re Amiel Restaurant Partners, LLC, 13-23866 (2014), where a landlord won the right to an insurance payment. Due to a properly prepared lease, the Court found that “the landlord’s right to recover the premises with its contents at the termination of the lease affords the landlord ‘a reasonable expectation of deriving pecuniary benefit from the preservation of the property’ and therefore an insurable interest in property for which it had been endorsed on the flood insurance policy as an additional insured.”
Mr. Nelson then discusses three essential questions to address in order to properly prepare a good lease.
You can read the full article in the Mid Atlantic Real Estate Journal, Volume 26 Issue 18.
It is not uncommon for Wills to contain “No Contest Clauses” which provide for a beneficiary being disinherited from the Estate should they challenge the Will or any provisions thereof. These Clauses are not new and have been utilized by scriveners of Wills for many years. In the context of a Will Contest, whether this type of clause is enforceable is an issue which a party must take into account in deciding whether to challenge a Last Will and Testament. There are essentially two circumstances which must be considered by a party in deciding whether to challenge a Last Will and Testament if such a clause is present.
Obviously, if a person was completely written out of a Will which they now seek to challenge, the existence of the “No Contest Clause” in the Will would be of no consequence, as they were not destined to receive under this Will regardless. Thus, the presence of this Clause would be irrelevant to a person challenging the validity of the Will under these circumstances.
The other situation is if a party is to receive a Bequest under the Will which they believe is unfair. Under such circumstances, it is necessary for the party to consider the possibility of them forfeiting their Bequest under the “No Contest Clause” of the Will. Clearly, there is a sliding scale which may determine a party’s willingness to contest a Will based upon the value of their Bequest or the percentage of the Estate which they could forfeit should they lose the Will Contest. Certainly, the larger the percentage of the Estate which is at risk may require the party to consider whether to contest the Will, whereas, if the party is only receiving a token share then they would be more likely to challenge a Will.
When contesting the validity of a Last Will and Testament, if the Last Will and Testament is invalidated, then in that event, the No Contest Clause would likewise be stricken. Furthermore, should the parties reach a settlement, a No Contest Clause is likewise of no import. Finally, there is the possibility that the Court could find the Will enforceable, however, could rule that certain provisions of the Will are unenforceable in light of a legitimate dispute between the parties as to the validity of the Will. Under such circumstances, the Court may provide relief from the No Contest Clause. Obviously, this decision is highly technical and is subject to the Court’s discretion.
As such, if you are deciding to contest a Will and are facing the possibility of being disinherited by a “No Contest Clause”, it is strongly suggested that you speak with an attorney, such as the attorneys at Stark & Stark. We are happy to assist you and guide you through the process.