The process starts with understanding your needs and what is important to you. Do you or other family members have current health issues we should know about? Do you have obligations from a prior marriage? Are there other special family issues involving disability or addiction or arising out of a recent or pending divorce proceeding? Are you or other family members in a same-sex marriage or in unmarried couple arrangements? Are there children from a prior marriage? Are you now supporting adult children or parents or siblings? Are there special objectives or protections needed for your surviving spouse or your children? Have you entered into a prenuptial agreement?
We start the process by gathering information about you, your family and your financial assets. We need to understand your plan for asset distribution. Do you have charitable objectives to be addressed? Who are the persons who will serve as executors or trustees? We will customize a plan for disposing of your assets by will or by beneficiary designation. We will suggest special provisions or protections to achieve your objectives.
Where possible, we like to build in flexibility so that the plan can be adapted and adjusted as conditions change. Although we suggest that you periodically schedule a meeting so we can review and update your plan, we try in the initial documents to cover a full range of contingencies, such as default takers in the event you predecease your spouse and your children.
We have expertise in Federal Estate Tax and Gift Tax laws. We also understand New Jersey Estate and Inheritance Tax laws and their relationship to the Federal laws. Tax considerations are an important part of our estate planning practice.
This is the post-death phase of Estate Planning--where the estate plan is implemented. Most of our work involves representing the estates of people who have died with a will, but we also have experience in representing estates where there is no will or where the will was handwritten by the client (holographic). Where there is no will the process involves the appointment of an "administrator," who is the person responsible for the estate. It usually requires the posting of a bond because the decedent has not provided for the bond to be waived. (One of the many reasons to have a will is so that the bond can be waived.) Where there is a will the person who is responsible for administering the estate is called the Executor. Another term for either the administrator or the executor is the "personal representative" of the estate.
Estate administration usually starts with probating the will at the office of the Surrogate in the County where the decedent resided at the time of death. Probating the will means having it officially recognized as decedent’s last will and having the personal representative appointed. (If the decedent was not a New Jersey resident, but owned property in New Jersey, the proceedings in New Jersey involves the appointment of an ancillary administrator.)
The personal representative is responsible for implementing the terms of decedent’s will. We can also advise the personal representative about post-mortem planning opportunities. The first responsibility is to give notice to all of the interested parties that the will has been probated. The role of the personal representative can be analogized to winding-up a business. It includes:
- Identifying and securing the assets and have them valued
- Identifying the legitimate debts of the decedent and paying them
- Cancelling the decedent’s credit cards
- Making sure appropriate insurance is in effect
- Filing the decedent’s final income tax returns and paying any required taxes
- Preparing the New Jersey Transfer Inheritance and Estate Tax Returns
- If necessary or desirable, filing a Federal Estate Tax Return
- Filing gift tax returns if decedent made taxable gifts in the year of death
- Preparing an informal accounting
- After all taxes and expenses have been paid and the tax proceedings closed, making a final distribution of assets to the beneficiaries.
Some estates are more difficult to administer than others because of the nature of the assets and the relationships among the beneficiaries.
At Miller Porter & Muller we work with the personal representative to either oversee what is being done or actually perform the services on behalf of the personal representative. Often the personal representative is a family member who has just experienced a loss. We are sensitive to the emotional issues, and we are available to do as much of the work or as little as the representative wants us to do. Since we are usually compensated based on the time expended, we will cooperate with the personal representative in preparing a work plan with defined responsibilities.