What is a Codicil
A Codicil to a will is an amendment to your Last Will and Testament and is used in some situations to save the expense and time of executing an entirely new document.
You may want to change the name of an executor, you may want to leave somebody out that you had already previously given something to.
A Codicil looks the same as a will but it is much shorter. It simply refers to the paragraph you want to change, makes the change and then you sign it in front of two witnesses and a notary in the same way that you executed your original Will.
Some issues should not be addressed in a Codicil and may require the execution of an entirely new document. Consult an attorney about when the use of a codicil is appropriate for your needs.
Published by: admin on September 2nd, 2010 | Filed under General
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Homeowner Underwater – What are my options?
My friend Matt Haviland of Keller Williams Atlantic Shore sent me an email today about options available to homeowners who find themselves owing more than the value of their home. Sometimes this is called being upside-down on a house or underwater.
Did you know that there are over 7.2 million people nationwide that are experiencing a financial hardship and are in danger of losing their home? And here in Atlantic County our real unemployment rate is around 23%.
We are reaching out to you to help anyone you know diminish their financial loss and possibly keep their home. Here are 7 options that many home owners are not aware of. Some are good and some are bad. Please feel free to forward this email to anyone you know who may benefit from it.
1. Sell your home now if you have equity in your home and pay off your debt.
2. Loan Modification: Home owners may do a mortgage modification (restructure) to reduce payments and keep your home.
3. Short sell your home even if you owe more than it is worth: Home owners can sell their home as a Short Sale. If you qualify your debt may be forgiven and there are no tax penalties on forgiven debt. (Debt Forgiveness Act of 2007)
4. Cash For Keys Program (NOT RECOMMENDED) or deed in lieu of foreclosure: Many banks of offering cash payment to home owners of several thousand dollars for the home owner to vacate the home and sign over the deed. This saves the lender time from having to go through the foreclosure process. Your lender would likely still issue a deficiency judgment against you to recover their loss.
5. Foreclosure (NOT RECOMMENDED):
-Possible deficiency judgment for the bank to recover their loss.
-Possible wage execution order taking money from your pay check.
-Credit score is severely damaged and will take at least 10 years to recover.
6. Bankruptcy: WARNING: The bankruptcy trustee is not likely to include the home in the bankruptcy.
-Possible foreclosure if home is not included.
-Possible deficiency judgment and possible wage execution order.
7. Deed-For-Lease Program (NOT RECOMMENDED): Allows owner to transfer ownership and stay in home and lease home for up to 12 months.
-Possible deficiency judgment for the bank to recover their loss.
-Possible wage execution order taking money from your pay check
You can read more about the Haviland Group Realtors by following this link.
If you have questions about any of these options please contact me to set up a time for us to meet. Email Jim Schroeder at jim@jimschroederlaw.com
Published by: admin on August 31st, 2010 | Filed under General
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Special Needs Trusts for Special Children
When a family welcomes home a child that may or may not qualify for government assistance due to a medical diagnosis there are a lot of questions. Cole Schotz has an excellent blog on the subject, helping parents educate themselves about the issues.
You can find their blog here.
Published by: admin on August 24th, 2010 | Filed under General
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The Trajectory of the Irreplaceable Leader
Recently I spent a few hours with a friend who leads a not-for-profit organization and we were discussing the people who report to him. Attention turned to a staffer and my friend commented, “She is irreplaceable, if she were to up and leave it would take the organization a year or more to get back up to speed.” I asked how long she had been there and was told she was ending a decade of service, almost half of that time in her present position.
The conversation has been on my mind, is it a good thing for someone to call you an irreplaceable leader? Does it serve the organization to have people, no matter how gifted, whose absence could jeopardize the organization?
Certainly there are times when a leader being plucked out of a key position would do significant harm to an organization. Currently one of my clients is migrating one of their key operating systems, if the leader of that project were to leave or were incapacitated for any reason there would be serious consequences. Other leaders are essential in their positions when in the middle of crisis among their area of responsibility. But I content that under normal circumstances it is a sign of organizational weakness and substandard leadership for a person to be irreplaceable.
ACCLIMATION PHASE
Every leader goes through a learning curve, gurus estimate it at 6-12 months for many leadership positions. During that time frame leaders are learning the organizational culture and evaluating systems against goals and mission for the first time. This is often called the “honeymoon” period.
IMPLEMENTATION PHASE
After this period of acclimation the leader begins a implementation phase, changing the systems and if necessary parts of the corporate climate. During this phase a leader may be in a sense irreplaceable, they are uniquely qualified and positioned to move the organization forward according to their findings during the initial or honeymoon phase. This phase may last 6-24 months depending on the organizational cycles. For instance a camp meeting may be at the longer end of that cycle because it holds annual events which are the primary activity of an organization, a church or restaurant which have daily or weekly gut-checks would be on the shorter end of the cycle.
DEVELOPMENT PHASE
After a leader is able to implement the greater part of their vision there is an opportunity to focus on developing other leaders and allowing their expertise, ideas and gifts to augment the mission of the organization. Some leaders are, for various reasons, ineffective in this phase due to a need to be “irreplaceable”. While the insecure leader may thing that sharing the vision, encouraging input and developing other leaders may create an opportunity for a rising star to outshine them, the opposite is more often the case.
A leader who fails to share the vision and develop leaders will most likely stunt the growth of the organization and soon place their position in peril as top talent migrates to other opportunities and new ideas are underemployed, affecting the mission and effectiveness of the organization as a whole.
The bottom line is everyone want to be wanted, however seeing to be an irreplaceable leader can backfire and hurt your long term effectiveness. Leaders must seek to cultivate new leaders to enhance the mission of their organizations while simultaneously seeking new areas of opportunity for themselves within and outside of their present organizations.
Are you an irreplaceable leader? Why or why not?
What are you doing to cultivate other leaders and encourage them to build their direct reports?
Are you looking for new opportunities and creating new opportunities for others?
Published by: admin on August 24th, 2010 | Filed under General
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How do I emancipate a child for the purposes of child support?
Emancipation is the release of a child from parental care and responsibility, and is synonymous with reaching adulthood and independence. In New Jersey, unlike many other states, there is no automatic emancipation at the age of 18.
Children are emancipated and parents no longer have an obligation to support them if they become economically independent through employment, entry into military service, or marriage, and may be constructively emancipated if they, without cause, withdraw from parental control and supervision.
It does not happen automatically, a consent order must be submitted or motion made to the court asking for the court to consider the facts and determine if a child has met the criteria for emancipated status.
The standard the court applies in these type of cases is “[w]hen a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated.” Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).
EIGHTEEN CANDLES DOES NOT EMANCIPATED MAKE:
There is no specific age at which emancipation automatically occurs in New Jersey. Although 18 is the age of majority in New Jersey, reaching this age is the main consideration in determining whether a child should be emancipated but not the only factor. Below are a few of the common other factors. Every case is fact sensitive and an attorney should be consulted to help you prepare your best argument or defense to a petition for emancipation.
POST-SECONDARY EDUCATION:
While parents are generally not required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support. It is beyond the scope of this short guide to discuss the impact of part-time education, part-time employment, semesters off and gap years on whether a child should be considered emancipated. These situations are where emancipation becomes a fact sensitive issue and an attorney should be consulted.
BECOMING A GRANDPARENT:
Having a baby does not lead to automatic emancipation where the unemancipated child is still relying on parental support. A teenage, unmarried mother still living at home is unlikely to be declared emancipated. Again, each case is very fact sensitive.
DISABILITY FACTORS:
Parents of a child who is unable to care for him or herself may have the support duty extended beyond the age of majority. If a child is unable to become an independent person the parent ma bear the burden for support well beyond the age of eighteen.
MARRIAGE AND MILITARY:
A child who marries is determined to be independent. If a child is serving in the military they are by similar reasoning considered able to care for themselves. The courts may determine a child who is paying their own bills and living independent of the care
A child is emancipated in New Jersey when declared independent by the court. The court makes a fact sensitive determination. Hiring a competent attorney to assist you in preparing the documents for the court and to guide you through the process is essential.
Published by: admin on August 14th, 2010 | Filed under General
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How do I get a copy of a will?
Question: How do I get a copy of a will from a person who died in 2004?
In New Jersey the Surrogate’s office in each county handles probate issues. When a person dies a representative known as the executor (male) or executrix (female) brings the death certificate and the will to the Surrogate’s office.
If the will complies with the requirements set forth by the courts it is admitted to probate. The will and other important documents are kept by the Surrogate in their files.
To get a copy of a will that has been probated you can go to the county surrogate’s office and request a copy. Usually the fee is between $10-$30 based on the fee structure set by the county and the number of pages of the will.
Note that if there were no assets in the estate there may be no will probated. A will where there are no assets may be filed with the surrogate’s office but will not get a docket number and will not be public record.
Some counties make their surrogate’s records available online. My favorite county surrogate’s website is Camden – you can search for the availability of documents online. See the site HERE
Generally a beneficiary of an estate will have been notified at the time of probate but sometimes this step is missed or neglected. If you have any questions about what the Will of a loved one it may be worth the effort and expense to have peace of mind.
For a link to the contact information of each of the 21 county surrogate’s offices – CLICK HERE
Published by: admin on August 6th, 2010 | Filed under General
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Choosing the Right Attorney
The “right” lawyer is one who is professional, educates their client, empowers the client to make good choices about the law and keeps fees and expenses under control. Here are some steps you can take to ensure that you find the right one.
What kind of lawyer do I need?
In many cases a general attorney is fine, but if your need requires specific knowledge and experience, an attorney who specializes may be a good choice. Check with the bar organization in your state to find out what specializations they recognize and how lawyers qualify for those specializations. Not every state or every issue has a specialization or certification program. There is also merit in finding a general lawyer and allowing that person to coordinate your legal issues, working with other professionals in specific areas of the law on your behalf.
Look at Blogs and National Association Websites
A lawyer who has a good website and a blog about the issues you are facing is likely well schooled in the issue and willing to help you learn about the case so you can decide what is best for you when considering possible courses of action.
Determine the lawyerʼs fees
Lawyer fees are generally determined by one or more of the following:
• By the hour.
The lawyer charges an agreed-upon rate per hour, usually in increments of 1/10th of an
hour.
• Fixed amount.
When legal work is routine and predictable (such as the purchase or sale of a home or writing a simple will), a fixed fee is usually charged.
• By a percent of recovery
Also called a “contingency fee,” tis arrangement compensates the lawyer for an agreed-upon percent of the funds awarded in the case. When the fee has been agreed upon get it in writing.
Meet personally with one or more prospective attorneys.
Since you and your attorney become a “team” it makes good sense to spend time with a prospective lawyer to determine if he or she will be a good teammate. Is this a person you can trust and whom you will want to work with?
Hire an Attorney who will be available to you.
If you hire a lawyer will that person also be the one handling your matter or at least will they be the one who will communicate with your about your case? Find a lawyer and a law firm that will communicate with you throughout the process. Some issues are handled by staff including paralegals and other lawyers or the attorney may recommend bringing another specifically skilled attorney to work on your matter but a good attorney-client relationship is built on effective communication. No one lawyer can handle every kind of case, but the right lawyer will help you manage your legal issues no matter what they are.
Always work with a lawyer who offers a retainer agreement. A retainer agreement is a contract between you and your attorney detailing how the case will be handled, how you will communicate and how the lawyer will be paid for his or her services.
From the Desk of James E. Schroeder, Esq. – Long, Marmero and Mayer, LLP – Egg Harbor City, New Jersey
The information provided in this document is educational and intended to assist the legal consumer in making decisions about
their legal options. It is not intended as legal advise and does not create an attorney-client relationship.
Published by: admin on August 5th, 2010 | Filed under General
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I Bought a Qualifying Home in 2010 – Do I have to wait until I file my 2010 taxes to claim the First Time Homebuyers Credit?
I Bought a Qualifying Home in 2010 – Do I have to wait until I file my 2010 taxes to claim the First Time Homebuyers Credit?
Many people bought homes in 2010 before the April 30, 2010 deadline. Those buyers can certainly use the tax credit for fix up projects and other expenses.
Do you have to wait until you file your 2010 taxes to get your credit?
Good news! No you do not. Qualifying purchasers may apply for the credit in 2009 or 2010. See the IRS article here.
How do I claim the credit immediately?
If you have already filed your 2009 income taxes you may file form 1040X along with Form 5405. You will need the following documents:
* Purchasers of conventional homes should include a copy of Form HUD-1, Settlement Statement, or other settlement statement, showing all parties’ names, property address, sales price and date of purchase.
* Purchasers of mobile homes who are unable to get a settlement statement should include a copy of the executed retail sales contract showing all parties’ names, property address, purchase price and date of purchase.
* Purchasers of newly constructed homes where a settlement statement is not available should include a copy of the certificate of occupancy showing the owner’s name, property address and date of the certificate.
If you were able to make a qualifying purchase before the April deadline, congratulations. With a little more work you can collect your credit now rather than wait.
Published by: admin on May 13th, 2010 | Filed under General
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Changes in New Jersey Real Estate Law – Selling Income Generating Properties
The rules have changes for realtors, buyers and sellers seeking to transfer ownership of income generating properties. This includes rental properties currently under lease agreements or recently under lease agreements. This does not apply to the sale of an owner-occupied single family home or a sale of real estate in the ordinary course of the seller’s business.
Purchasers must notify the Division of Taxation at least 10 days prior to taking possession of the property. The Division will notify the purchaser within 10 days of receipt if it has a claim against the seller for taxes and the amount of the claim. If the purchaser fails to comply, then the purchaser will be personally liable for any tax owed by the seller to the state.
In order to comply with this requirement and avoid assuming the burden of unpaid taxes the buyer must:
- Contract of Sale. The contract of sale between the parties should include a provision that both seller and purchaser are required to fully comply with the statute. This should include the provision that if there is an unpaid tax burden that funds sufficient to cover this debt be escrowed and the escrowing agent is empowered to release the appropriate funds to the State of New Jersey Division of Taxation.
- Division of Taxation Filings (Seller). The seller must prepare and deliver to the purchaser the Asset Transfer Tax Declaration (Form TTD). The form is available here.
- Division of Taxation Filings (Purchaser). The purchaser must prepare a Notification of Sale, Transfer or Assignment in Bulk (Form C-9600). Available here.
- Submission to the Division of Taxation. The purchaser must then submit Form TTD, Form C-9600, and the fully executed Purchaser Agreement including price, terms and conditions thereof by registered mail to the Director at least ten days prior to the date of closing.
- Director Notification. Within ten days following receipt of the documents, the Director will notify the purchaser/attorney/designee of any possible claim for State taxes and specify the amount to be escrowed by the purchaser at closing.
- Closing and Final Payments. After closing, any and all amounts owed to the State will be paid out of the escrow account (or paid directly to the State).
This applies to all New Jersey real estate sale transactions, other than the sale of the seller’s personal residence.
Anyone who has sold property in the past few years knows the volume of documents required to buy and sell property. This is one more potential pitfall for the buyer. As always it is a good idea to hire legal counsel to assist you with what will likely be the biggest financial investment in your lifetime.
Published by: admin on April 23rd, 2010 | Filed under General
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Power of Attorney v. Guardianship
The primary difference between a Power of Attorney and a guardianship is court involvement.
Guardianships are fiduciary relationships created by the court. The court authorizes an individual to act as guardian or conservator of another according to the terms of the court order.
Power of Attorney is created by a person who is of sound mind to grant certain powers and withhold other powers by the terms of the document. The grantor can tailor these powers and determine whether they take effect upon signing or if they spring at some point in the future (such as a Licensed Psychologist determining they are incapable of managing their affairs).
Guardianship, because of the involvement of the court, is a much more expensive and lengthy undertaking. While a Power of Attorney can be completed in a week or so with the assistance of an attorney. Using an attorney to create a POA is a good idea for many reasons, one of which is the attorney can later testify as to the state of mind of the signer. Guardianship can take six months or more to complete, especially if contested.
The cost of a Power of Attorney is often part of an Estate Plan, coupled with a Will and Health Care Power of Attorney/Living Will and can range from $500-$2,000. Guardianship often costs more than $3,000 with court fees, appointment of an attorney for the, mental health evaluations and document preparation.
The best advice is if you are able to plan ahead and make use of a Power of Attorney document to grant a trusted friend or relative the ability to act on your behalf in the event that you become incapacitated. If a person is incapacitated without having a Power of Attorney then the most likely option to govern their affairs is petitioning the court for Guardianship.
Published by: admin on April 15th, 2010 | Filed under General
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