Blog & Resources

From our “Ask a Question” mailbag: My mother died four months ago as a resident of Camden County and my sister and I cannot locate her will. We thought it thought it would be in the safe deposit box, but it was not. I cleaned out all of her papers in the house. Now, I think I may have accidentally thrown out the will. What can we do?

If your mother’s will cannot be located, then your mother is considered to have died “intestate,” meaning without a will. When someone dies without a will in New Jersey, the New Jersey Rules of Intestacy apply. These rules dictate who is eligible to serve as the Administrator of the estate and how your mother’s assets will be divided up. If we can find a copy held by the lawyer, it is possible to file the copy, but I would need to know more facts.

From our “Ask a Question” mailbag: My Dad passed away this month. When he died, I found out that I was still on his Gloucester County lease as a cosigner. The lease was signed in 2011. I had moved out in 2013, letting the management company know that I wanted off the lease. When I asked if the management company had anything for me to sign, they replied ‘no’. When I moved out, my Dad had let his brother, his brother’s son, and his brother’s grandson move in. They are still there and the landlord knows of the situation, asking them for money for every day they have been there past May. At best, when my Dad died I thought I would be morally obligated to remove my Dad’s property and clean. Instead, the feeling I am getting is that the landlord wants to hold me responsible for damages, utilities, and possible future rent. Dad had nothing and I am a stay-at-home mom of special needs children.

You have mentioned a number of potential issues. First, the only person who has the authority to act for your dad after he has died is the Personal Representative of his estate (if he had a Will) or the Administrator of his estate (if he had no Will). It sounds like your dad (or his estate) owes the landlord some money.

From our “Ask a Question” mailbag: My father-in-law died in Lehigh County without a Will. My wife has one brother who is younger than her. Who is responsible for his funeral bill, as the funeral director is billing us?

Typically, when a person dies the family will make arrangements with the funeral director to pay the bill themselves and then are reimbursed by the estate. Often, the funeral director will not take on the expense of the funeral without knowing they will be paid. Your question makes it sound as if you did not agree ahead of time to be responsible for the bill. If so, then you are not responsible to pay the bill, though I am sure the funeral director would prefer that you pay that bill.

From our “Ask a Question” mailbag: My best friend repeatedly promised to give me her Chester County house in her will. She died recently and her son, who did not talk to her for 40 years, has filed a will from the 1970s that gives him everything. Can I challenge that Will?

If I understand the facts correctly, your best friend died and to the best of your knowledge, her most recent will was the one her son filed with the Chester County Register of Wills. That will is very old, but as far as you know, is the most recent will she signed. Though she verbally promised to give you the house in Chester County, she failed to write a new will.

If these are the facts, then you will not be able to successfully challenge the Will for two reasons.

From our “Ask a Question” mailbag: I am the executor of my father’s estate in Lehigh County. My sister and I do not speak, so the process has been terrible. She refuses to sign the family settlement agreement I sent her, and instead has petitioned the Orphans’ Court to make me account. Do I need to respond?

Yes, you must respond to the petition. As a beneficiary, your sister has every right to ask that you file a formal account with the Court. She does not have to show that you have done anything wrong, only that she is a beneficiary. She may have done you a favor, because it is clear that she was never going to sign your family settlement agreement. This would mean dragging the estate administration on potentially for years. Now you get a court-mandated end date.

From our “Ask a Question” mailbag: My aunt’s will names me as her Personal Representative and divides the estate between all of her nieces and nephews. We are not a close family and there have been disputes in the past. I am worried that my cousins will be angry that I was named the Personal Representative and may cause trouble. Can they sue me as the Personal Representative?

If you agree to be sworn in by the Surrogate as the estate’s Personal Representative, you will then have a fiduciary duty to all beneficiaries to act in their best interest. You will be given broad powers and be largely unsupervised by the Surrogate.

To counter these broad powers, the beneficiaries are given the right to petition Surrogate’s Court to review every action and expense. Should the court find that any action of yours reduced their inheritance, the judge could choose to surcharge you (fine you) to make up for any loss.

From our “Ask a Question” mailbag: I live in Delaware County, and my will names my parents as co-executors. I thought this was a natural thing to do, but my parents are going through a divorce. What are my options?

Naming your parents as co-executors when they do not get along is a bad idea. Co-executors have to work well together and cooperate. Parents who are having a dispute can make a small argument into a family feud that lasts decades.

You should investigate changing your will to name another family member or, if you have none that you trust, to name your Delaware County estate planning attorney. Your lawyer will charge a fee, but that fee will be small when compared to the potential costs of litigation and family turmoil. When named executor, I normally ask that the document state that I receive my hourly fee rather than a percentage of the estate, which many lawyers take. I find the hourly fee is fairer for everyone involved.

From our “Ask a Question” mailbag: My father died recently. I have been told he had a will done in 2007, but I can’t find it. Where would it be registered?

A will is not usually registered anywhere until the person dies. Normally, it is kept by the lawyer who drafted the will or in a safe location in the house. If you didn’t find it in the house or in a safe deposit box, then you are left to backtrack over time to find the lawyer. This can be a challenge.

My firm sends out summaries of the documents we draft every 4 months to stay in contact with our clients. The attorney who drafted your father’s will may have a similar practice, so watch the mail. Probate is started by having the executor named in the will file the will with the Surrogate. If you can’t find a will, then you can open the estate via Administration. It would be wise to retain an experienced probate lawyer to help you and, if you think there maybe conflict with siblings if there is no will, retain a firm experienced with estate related litigation.

From our “Ask a Question” mailbag: I love my partner, but she is terrible with money. If I leave her an inheritance, it will be spent quickly and she will be left with nothing. How do I leave her an inheritance but protect it for her?

Recognizing your partner’s inability to handle money allows you to set up an estate plan that can help make sure that your partner will always have enough money. There are many ways to set up a trust for his benefit. The best option will depend on what type of assets you have and how much flexibility you wish to give the Trustee.

From our “Ask a Question” mailbag: My dad named me his power of attorney. For many years I helped pay his bills and care for him. After years of in-house care and then a nursing home in Lehigh County, all his money was gone except one small account which we both split. My brother thinks I stole the money, but that is not true. He has served me a citation to account for my actions under the power of attorney, what do I do now?

By accepting the position of agent through your father’s Power of Attorney, you became a fiduciary. As a fiduciary, you owed your father a duty to look out for his interests. But that job also comes with the obligation to explain your actions as agent to certain people.

An interested party can ask for you to account for all the actions you took as the agent. During his life, this could have been your father. Now that your father has died, your brother (as the heir to half his estate) has the right to ask for a power of attorney accounting from you because if it is found that you took any money, half of anything recovered will go to him.