10 Ways Landlords Can Cut Costs and Increase Income Now

Posted on March 27, 2013 by Jerry A. Nelson
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The bad news is that costs increased when taxes rose in January.  Interest rates may also rise.  The good news is that for savvy landlords, there are some proactive strategies to improve the bottom line now with the help of sound legal counsel.  Following are Stark & Stark’s top 10 tips for landlords to consider:

1.    Refinance.  With interest rates low, now is the time to act to refinance and cut costs before interest rates rise.  Have you reviewed your properties with counsel to ascertain what you need to refinance?  Are your estoppel certificates in order?  Any outstanding litigation cases that need to be resolved, in case your lender asks?  Stark & Stark’s Real Estate Group can manage these issues.  

2.   Reduce Taxes.  Have you considered filing a real estate tax appeal before the deadline?  April 1st is almost here.  Have you considered 1031 exchanges to provide tax benefits?  Stark & Stark’s Business & Corporate Group can help guide you through these tax issues.

3.   Plan.  Have you consulted with counsel lately to discuss and update your plans and options, including estate planning and business succession planning?  An experienced trusts and estates counsel can ensure that the maximum amount of your money stays where you want it, instead of going to Uncle Sam.  Stark & Stark’s Trusts & Estates Group can assist in planning for your future.

4.  Reduce Responsibilities.  Have you updated all your documents and procedures to reduce your responsibilities?  Have you minimized your repair and construction costs?  Have you reduced your utility and compliance costs?  Stark & Stark’s Real Estate and Construction Groups have the expertise you need.

5.   Improve Insurance.  When was the last time you reviewed and updated your insurance coverage?  Have you looked at your coverage in the wake of Hurricane Sandy?  Do you know what risks are not covered?  Are you relying on certificates of insurance that may not protect you?  Stark & Stark’s Insurance Group is here for you.

6.   Manage Risks.  Have you updated your compliance procedures, employee handbooks, and other documents and procedures to prevent problems?  Have you considered all available dispute resolution options?  Stark & Stark’s Employment Group can provide you with solutions to these issues.

7.   Improve Properties.  Have you recently developed or remodeled your real estate to attract and retain the best tenants and increase rents?  Stark & Stark’s Land Use Group can help you assess the legal issues with your property improvements.

8.  Increase Collections.  Are you collecting your unpaid debts while complying with the Fair Debt Collection Practices Act and other applicable laws?  Will your strategies and procedures reduce future debt collection problems?  Are you enforcing all your bankruptcy and other rights?  Stark & Stark’s Bankruptcy & Creditor’s Rights Group is here for you.

9.   Improve Your Deals.Do your documents maximize recovery of operating expenses and unpaid rent?  Have you included all the language you need in different jurisdictions, such as "additional rent" language to capture all rent in New Jersey evictions and Confession of Judgment language to expedite rent recovery in Pennsylvania?  Stark & Stark is a regional firm with offices in New Jersey, New York, and Pennsylvania.

10.   Get Deals Done Faster.  Do your negotiations take too long?  Are you expediting the negotiation and drafting of letters of intent, leases, amendments, contracts, and other documents? Stark & Stark’s Real Estate Group understands the immediacy of “now” and can help you with your needs.

These are just a few examples of how landlords can, with the help of good legal counsel, improve the bottom line now.  Evaluating these questions requires careful review on an individual basis with experienced counsel.  Having an attorney familiar with these issues is critical.  The attorneys at Stark & Stark understand the real estate community and can provide you the insight you need to address these and other questions for your real estate and business needs.

Feel free to contact Jerry Nelson at 609.945.7635 or jnelson@stark-stark.com for a review of your real estate and business issues.

Jerry A. Nelson, Esq. is a Shareholder and member of Stark & Stark's Business & Corporate and Real Estate, Zoning & Land Use Groups.  He writes regularly on issues for commercial landlords and brokers.  He is a member of the International Council of Shopping Centers and a regular speaker on commercial landlord issues.

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Stark & Stark Shareholder in Firm's Litigation Group Published in US1

Posted on March 19, 2013 by Stark & Stark
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Paul W. Norris, Stark & Stark Shareholder and member of the Firm’s Litigation Group, authored the article Contesting a Will, published in US 1 on March 6th, 2013. 

The article describes the process and the possible repercussions of contesting a will.  Mr. Norris explains the process of contesting a will, including the possible range of emotions that the Executor and others involved may experience throughout the litigation process.

Mr. Norris explains that, prior to challenging a Will, “an individual must first evaluate the value of the Estate and their potential gain as compared to the expenses they may incur in obtaining that relief.  In addition, a party should consider the emotional trauma which is prevalent in Estate litigation.”  Additionally, he explains that, “After a Will contest has been commenced, the Court will often recommend that the parties consider mediation in an attempt to resolve the matter without the need for additional litigation.  Often, the parties are able to resolve the dispute through Mediation without the parties incurring costly additional expenses.  If a case cannot be resolved through mediation however, the case will move forward through discovery, and thereafter, to Trial.”

To read the full article, Click Here.

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Battle Between Two "Wills"

Posted on December 14, 2012 by Paul W. Norris
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During a Will contest, there is often the possibility that a Will, which was executed prior to the one which is disputed by the parties, may become relevant during the course of the proceeding. The reason this previous Will may become relevant is if the current Will which has been offered for probate is deemed invalid. In that event, the Court can probate the previous Will to determine the distribution of the property. The question becomes, however, as to what is the best way for a Court to decide upon the validity of these Wills. Often, the Court may review the validity of both the current Will and the previous one at the same proceeding in order to expedite the process. While this may seem strange, it is in the interests of judicial economy that the current Will which is being disputed be reviewed by the Court at the same time as the previous Will.

Obviously, if the current Will is deemed valid, then in that event, the validity of the previous Will is irrelevant. On the other hand, if the current Will is deemed invalid it becomes extremely important whether the previous Will is valid. As such, it is important for a party to consider the possibility as to the distribution under both current Will and the previous Will in the context of a Will contest. That is because it is necessary for the parties to consider how the property may be distributed under either Will in order to be fully informed. Also, the parties should consider the possibility of intestacy, and the potential distributions under this scenario.

Paul Norris is a Shareholder in Stark & Stark's Probate Litigation Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.

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Hightstown Man Charged with Stealing $500,000 From 96-Year-Old Relative

Posted on September 3, 2012 by Paul W. Norris
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Recently, a Hightstown man was charged with stealing $500,000.00 from a 96-year-old relative by abusing the Power of Attorney he was granted.  Unfortunately for the victim, this individual utilized a Power of Attorney that he was granted to him by his 96-year-old relative in order to steal these funds.  While this is uncommon, it is an extremely unfortunate situation and this man will be criminally prosecuted and may face a State prison sentence should the allegations prove to be true.  
 
In order to prevent something like this from occurring, a party may seek to establish a guardianship or conservatorship which may allow the Court to oversee the management of an elderly person’s funds, in lieu of one party having the ability to manage the affairs without judicial oversight.  In order to ensure such arrangements are made, it makes sense for an individual to contact an attorney to make these appropriate arrangements.  While one would think it would be terrible to believe that they could not trust a loved one, once such an arrangement is properly made it removes the possibility of abuse.
 
Paul Norris is a Shareholder in Stark & Stark's Probate Litigation Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.
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Attorney's Estate Tests Limits of Probating an Unsigned Will

Posted on August 27, 2012 by Paul W. Norris
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In a recent case before the Appellate Division, the Appeals Court found that an unsigned and unwitnessed Will purporting to be the Last Will and Testament of an experienced attorney should be admitted to Probate despite the fact that this document was not properly executed.  In admitting the Will to Probate, the Court looked at numerous factors, including statements made by the decedent around the time the Will was drafted and detailed information of the contents of the Will which had been prepared by the decedent, however, had not been signed by him.  In finding the Will valid, the Court stated that the testamentary intent was clearly present as the Will was professionally prepared in every respect except for its execution.  It is likely, however, that while the decision is precedential, its reach is narrow as it involved an experienced estate attorney drafting a Will on his own behalf which is atypical when it comes to a Will contest.
 
Paul Norris is a Shareholder in Stark & Stark's Probate Litigation Group in our  Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.
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Referring Out a Will Contest to Avoid a Conflict of Interest

Posted on August 8, 2012 by Paul W. Norris
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It is only natural that when a Will is challenged that either a beneficiary under the Will or the Executor of the Will may seek representation from the attorney who prepared the Will to represent them in defending the Will.  It is important to note, however, that this attorney will likely be disqualified from representing these individuals, as the attorney is actually a fact-witness to the proceeding.  As such, despite an Executor or beneficiary’s wish, the attorney who drafted the Will cannot serve as their attorney throughout the Will contest.  It is for these reasons that the attorney who drafted the Will should refer a Will contest out to a competent litigator in this area.  This may be unnecessary if the attorney had another attorney in his office who could handle the litigation while he serves as a fact-witness.  If this is not possible, however, then the matter must be referred out as the attorney who drafted the Will cannot also serve as counsel in defending its validity.
 
As such, whether you are a beneficiary under a Will, the Executor of the Will, or the attorney who drafted the Will, you should be mindful that the drafter of the Will should not attempt to serve as counsel during the course of the Will contest.  This will only lead to additional costs of litigation, as well as unnecessary delay.
 
Paul Norris is a Shareholder in Stark & Stark's Probate Litigation Group in our  Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.
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Intestacy in a Will Contest

Posted on June 29, 2012 by Paul W. Norris
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In this blog, we will examine what effects, if any, a finding of intestacy may have when a party is seeking to invalidate a Will.  I discussed in previous blogs the numerous ways in which a party may seek to attack the validity of a Will.  The issue discussed in this blog concerns what would happen if a Will is successfully challenged by a party.  There are essentially two possibilities as to the outcome.  The first possibility would be that the Court may revert to a previous Will to probate the Estate if this Will or a copy still exists.  Under these circumstances, this previous Will will govern the distribution of the assets of the Estate.  The other alternative is that the Court may find that the decedent died Intestate, in other words, without a Will.  The possibility of a finding of intestacy is very important for parties to consider in deciding whether to challenge a Will.  
 
If an individual died intestate, it means they passed away without an enforceable Will.  In such instances, the distribution of Estate assets is governed by a statute as to how the distributions are to be made to potential beneficiaries of the Estate.  The distributions under an intestate Estate are straight forward and are well established by law.  After the relevant taxes are paid, the proceeds of the Estate would be distributed according to the relevant statute to individuals who are beneficiaries of the Estate.
 
The reason is obvious why it is important to consider a potential finding intestacy in deciding in whether to challenge a Will.  It is possible that although a party may be a beneficiary under a Will which is being challenged, there is a distinct possibility that this party may not be a beneficiary if the decedent is deemed to have died intestate or if it reverts to a previous Will.  That may be because a potential beneficiary does not have a familial relationship which would allow him/her to obtain an intestate distribution from the Estate.
 
In addition, a party cannot entirely rely upon the possibility that, should the present Will be invalidated, the Estate would revert to a previous Will.  There is no guarantee that this will take place, because it is possible for the Court to rule that the individual died intestate.  Although it is possible that the Court may rule that the Estate is now governed by a previous Will, there are numerous factors that the Court may consider as to this issue.  
 
In sum, before a party levies a challenge to invalidate a Will, the party should consider what may ultimately occur if the testator is deemed to have died without a Will.  As usual, it is stressed that any party seeking to contest a Will consult with an attorney before commencing action.
 
Paul Norris is a Shareholder in Stark & Stark's Litigation Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.
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Securing Alimony and Child Support Obligations

Posted on June 13, 2012 by Maria P. Imbalzano
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While alimony and child support obligations end upon the death of the payor, these obligations must be secured in the event of death.  Generally, they are secured through life insurance.
 
If we are dealing with alimony, in order to determine the appropriate amount of insurance, we calculate what the total amount of alimony should be (i.e., $1,000 a month for seven years equals $84,000).  Since alimony is taxable to the recipient, we deduct an adequate amount for taxes and then determine its present value.  In this example, the amount due after deducting taxes and determining present value is approximately $54,000.  This is the amount of life insurance which should be in existence on the payor’s life, naming the payee as beneficiary.
 
This calculation becomes a little more challenging when the obligation is for permanent alimony.  However, we can look at life expectancy tables to determine the number of years alimony may be paid, or key into a change of circumstance event, such as retirement, to approximate the amount of insurance that should cover the obligation.
 
In dealing with child support, we do a similar calculation by determining how many years child support should be paid until the child is emancipated.  Since child support is not tax deductible to the payor or includable in income to the payee, we do not consider taxes.  We would still, however, determine present value.
 
There are times when life insurance may not be an option as a means of securing support obligations such as when a payor has a pre-existing condition or is up in age and may not be able to obtain insurance–or, if obtainable, the cost may be prohibitive. 
 
In these instances, we must look to other alternatives to secure support obligations.  One way of doing this is to place a lien against the payor’s estate.  This can be done through a judgment allowing same.  Another avenue may be through a note and mortgage on real estate.  Yet, another method is by contract or agreement obligating the payor to name the payee as beneficiary under his/her Will or Trust.
 
Whichever method is chosen, it is important to secure support obligations in the event of the death of the payor before those obligations would have ceased.    
 
Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano. 
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Choosing Disinterested Counsel to Create a Will

Posted on May 16, 2012 by Paul W. Norris
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If you are in the process of having a Last Will and Testament drafted, or you are assisting a family member in having a Will created on their behalf, you should heed the following advice in an attempt to avoid potential future disputes. It is not uncommon for a party who might receive an unequal share under a Will, or have been entirely excluded, to seek to challenge a Will based upon numerous different grounds.

One of the grounds upon which the validity of a Will may be attacked is if the Will was not created and executed by disinterested counsel.  In general, this means that the party contesting the Will believes that the attorney who drafted the Will had either a prior relationship with one of the beneficiaries under the Will, had a personal stake in a bequest made under the Will, or the attorney allowed a beneficiary to directly participate in the drafting and execution of the Will.  Obviously, if the person seeking to create a Will has had their own attorney they have utilized for many years it is perfectly acceptable for this attorney to draft a Will.  Any potential beneficiaries to the Will, however, should not engage in discussions about specific provisions of the Will with the attorney who will be drafting the Will.  Moreover, any potential beneficiary should not be present or witness the Will which is being executed.

While it is okay to refer a person to an attorney to draft a Will on a party’s behalf, a party should be careful if the attorney to whom they are referring the individual has been their personal attorney, and they stand to benefit by provisions of the Will.  While this does not automatically invalidate the Will, a party should be careful to insulate themselves from discussions with the attorney about the provisions of the Will, and should not be present when the Will is executed.  If this was to occur, a party may assert that the attorney was not disinterested counsel, as their previous client benefitted by the terms of the Will he/she drafted.

One issue which may lend itself to a stern challenge is where an attorney drafted a Will under which he or she may be a direct beneficiary.  Equally suspicious is where a person drafts a Will on behalf of another party by which they themselves benefit.  While this does not rise to the same level of an attorney drafting a Will by which they benefit, it obviously creates suspicious circumstances which a party should avoid at all costs.

A review of the within advice will hopefully lend some guidance in the selection of proper disinterested counsel for the creation and execution of a Will on behalf of a party.  Should a party have questions, than they should consult directly with an attorney as to what would be the appropriate course of action.

Paul Norris is a Shareholder in Stark & Stark's Litigation Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.

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How to Invalidate a Decedent's Will Based Upon Undue Influence

Posted on April 12, 2012 by Paul W. Norris
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A beneficiary may seek to challenge the validity of a Will based upon an allegation of undue influence at the time the decedent created the Will. Generally speaking, this means that the Will was not the product of the decedent’s own free will and volition, but instead, was the product of undue influence asserted by another individual over the decedent thereby rendering the Last Will and Testament that was drafted not reflective of the decedent’s true intentions, but instead, the wishes of the party asserting undue influence.

In order to establish the invalidity of a Will based upon an allegation of undue influence, the challenging party must present evidence which demonstrates that the type of conduct which occurred caused the decedent to execute a Will which did not accurately reflect his/her true intentions, but instead, those of the other party.

During a Will contest, a party may be successful in shifting the burden of proof to the other side to demonstrate that there was no undue influence in the execution of the Will.  The shifting of the burden of proof may occur when there is a confidential relationship between the proponent and the decedent, such as any attorney/client relationship, a power of attorney relationship, or any other relationship where trust and confidence naturally exists.  Should a party also establish the existence of suspicious circumstances, it may shift the burden of proof to the proponent of the Will to demonstrate its validity.
   

If a party is successful in establishing the invalidity of a Will based upon an allegation of undue influence, then the Testator may be deemed to have died intestate, or in the alternative, it may revert to a previous Will of the decedent provided a copy still exists.  Factors that the Court may consider in determining whether a Testator may have been subjected to undue influence concern a decedent’s health at the time the Will was executed, the relationship between the decedent and the person who benefitted by the newly drafted Will, and whether the decedent was in good mental and physical health during the same time.  There is no set formula in this regard; however, factors which demonstrate a mental or physical weakness may make the individual more susceptible to undue influence.
   

Should a party wish to challenge a Will based upon undue influence, it is suggested that they consult with any attorney as this is a complex process.

 

Paul Norris is a Shareholder in Stark & Stark's Litigation Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.

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Older Entries

March 28, 2012 — If a Beneficiary Wishes to Challenge A Decedent's Will, the Decedent's Mental Capacity May Be Called Into Question

February 3, 2012 — What Happens if I Die Without a Will?

December 15, 2011 — Protective Arrangements: Guardianships and Conservatorships

September 27, 2011 — Stark & Stark Attorney Featured on WHYY's Newsworks Tonight Program

September 1, 2011 — Attorney Fees in Probate Court Actions Are Not Permitted on Proceeds on Life Insurance Policies or Pension

August 8, 2011 — Future Rights Under a Will May Be Given Away by Contract

August 2, 2011 — Will A Court Award Counsel Fees to a Plaintiff That Was Unable to Prove Lack of Testamentary Capacity or Undue Influence?

May 12, 2011 — ERISA: Exhausting Remedies

April 28, 2011 — Withdrawal Liability & Enforcement of Contribution Obligations Under ERISA

April 11, 2011 — ERISA's Anti-Cutback Rule

March 31, 2011 — ERISA Funding Requirements

March 18, 2011 — Fiduciary Duty Under ERISA

March 4, 2011 — The Employee Retirement Income Security Act

February 28, 2011 — Pension Protection Act of 2006

January 24, 2011 — Courts Will Not Create a Will or Trust Where None Exists

December 17, 2010 — Medicaid Planning: Dotting the"i"s and Crossing the "t"s

December 15, 2010 — Estate Tax Limbo: Here We Go Again!

February 24, 2010 — Repeal of the Federal Estate Tax - Here's the Bad News

August 25, 2009 — Contesting a Will - State Court or Federal Court

May 13, 2009 — Contesting a Will In New Jersey

March 2, 2009 — Beneficiaries of Retirement Assets

August 15, 2008 — Claim of Undue Influence Resolved by Court Before Death of Testator

April 2, 2008 — Estate Tax Changes in the Economic Growth and Tax Relief Reconciliation Act of 2001

October 15, 2007 — Estate & Wealth Planning for Women

May 2, 2007 — Proof of confidential Relationship Creates Heavy Burden on a Party Receiving a Gift

February 12, 2007 — Estate Planning for Baby Boomers

January 25, 2007 — Annuities Included in Bankruptcy Estate

November 30, 2006 — Securing Your Future Income

July 24, 2006 — Reviewing Current Case Law in Probate Litigation and Will Contests

June 23, 2006 — New Jersey Legal Update - Podcast # 37

May 24, 2006 — Being Indigent is Not a Reason to Extend the Time to Vacate an Order Probating a Will

February 10, 2006 — New Jersey Legal Update - Podcast # 26

January 12, 2006 — Judge Cautions Litigants Regarding Trial Costs

September 29, 2005 — Estate Planning and Long Term Care Insurance Podcast

May 6, 2005 — End of Life Decisions Panel Discussion

February 1, 2005 — Appellate Court Strikes Down Two State Regulations Relating To Annuities For Medicaid Planning

November 15, 2004 — Testamentary Trusts

October 22, 2004 — Estate Planning For Same Sex Couples

October 8, 2004 — Estate Administration

October 1, 2004 — Succession Planning

September 7, 2004 — Care for the Incompetent