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Martin L Bearg

Martin Bearg’s Answers

742 total

  • Can I endorse a check written to my dissolved corporation?

    I had a corporation and I recently dissolved it. I did not have any partners, I was the sole proprietor. I just received a check written to the corporation, not me. Can I deposit the check into my personal account or do I need to get it reissue...

    Martin’s Answer

    If your bank knows you it does not mean it will accept the check for deposit into your personal account. Most banks will not accept third party checks.

    You received, or should have received a tax clearance certificate from the NJ Division of Taxation and filed a final Federal 1120 or 1120S (unless it was an LLC, in which you should have reported company income and expenses on Sch C of your Form 1040. If this reflects money owed the corporation or company, that was not reported when you dissolved the business, you have a legal obligation to report its receipt and pay the taxes owed.

    You should consult an attorney or your CPA.

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  • As danish citizens, and parents to a newborn US citizen, is a standard Last Will sufficient to appoint guardian if we die in US?

    My wife and I are danish citizens living and working in New Jersey, US on our 3rd year. We became parents recently, and as our child was born in US, she is a US citizen. She has a US passport and will soon receive a danish passport. If my wife and...

    Martin’s Answer

    A "standard" will is a term as a trust and estates attorney I do not understand. A properly drafted will, acknowledging the fact you have a minor child and may have others in the future that appoints one or more persons as the legal guardian of the person and property of your minor child, or children, as the case may apply, will give you the protection you seek if G-d forbid something happens to both you and your spouse.

    You should likewise create a testamentary trust for the benefit of this minor child as a minor cannot own property and you may or may not wish to name the same guardian as the trustee of a trust for the inheritance your minor child or children receive. Some people are better nurturers than others and some are better at handling finances.

    Good luck. You should really speak with a trusts and estates attorney in or near Plainsboro. Just because an attorney says he or she drafts Wills, does not mean their practice is appropriate as you and your wife are not U.S. citizens, and special planning is needed to avoid tax on the first death.

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  • If I disclaim a NJ trust which has no connection to an estate, must I submit the notarized disclaimer document to the court

    for its approval? If so, which court? Am I obligated to send the disclaimer to the trustee only when the court approves it, or must I send it to the trustee at the same time as I send it to the court?

    Martin’s Answer

    If this is a trust that is not part of an estate, there is no docket# or file in the Surrogate's office or the Superior Court of NJ to file the disclaimer. The statute mandates that it be delivered to the executor of an estate or the trustee of a trust.

    You can disclaim your right to assets at any time under NJ law, BUT if executed after 9 months after the assets have vested in you, filing a disclaimer causes you to have made a gift. If filed prior to the gift/assets vesting in you, which varies depending on the nature of the trust and your interest iin the trust, avoids a Federal Gift being made.

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  • I made a disclaimer on a trust and an inheritance in NJ. I was in line to get half the estate. I had already received

    $21,300 before signing. Knowing that NJ allows me to exclude part of the interest from the disclaimer, I excluded whatever I received before signing. After filing, I found out that the estate might be liable for federal estate taxes (the lawyer ...

    Martin’s Answer

    Yes, you may disclaim some or all of a bequest you are entitled to under a decedent's Will. You cannot disclaim the $21,300. without making a gift to the other beneficiaries. NJ allows a disclaimer to be made at any time, but if made after 9 months of date of deaath OR after accepting the $21,300, you have made a taxable gift for both Federal and NJ Estate Tax purposes.

    IF your mother is the beneficiary, there will be no increase in Federal Estate Tax. There will be no increase in the NJ Inheritance Tax if your mother or siblings or a charity is the other beneficiary, but as the estate exceeds $675,000, there will be a NJ Estate Tax to pay.

    Without knowing more details, no one can give your question a valid answer.

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  • Broken Oral Contract from Mother after I found out about siblings sexual abuse.

    Good day. I know that the following seems surreal but please believe me that there are parents like this: 1. When I was struggling with my mortgage my Mother kept pressing for me to go into foreclosure and she would purchase a house for me....

    Martin’s Answer

    The statute of frauds not only requires a contract to be in writing if it exceeds a stated amount, but in it (a) involves real estate or (b) will exist for more than 1 year.

    While an oral contract can be enforced, in this case I would think the statute of frauds would prevent that. In addition, for aa contract to exist, there must be an offer, an acceptance and a transfer of consideration. Although your mother promised (which can be a form of consideration) to purchase you a condo, I am uncertain what consideration you gave. If you agreed not to discuss the molestation as your form of consideration, which is a violation of public policy and a criminal act after the fact, you did not give any valid consideration.

    I suspect a court will treat this as a gift by your mother, which has tax implications,, and not a valid contract.

    Bottom line, unless you changed your position financially (another form of consideration) as a result of your mother's promise, I do not believe you have an enforceable contract. Besides, this obviously will destroy whatever family relationship you have with your mother.

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  • Is it possible to bypass probate for money in an out of country bank account?

    My aunt died without a will and her husband is willing to have the money in the account go directly to her mother. The husband didn't know that the account (Hong Kong) even existed. This account has a significant amount of money in it and her es...

    Martin’s Answer

    As noted, IF the account was a joint account or POD (pay on death) account, it will avoid probate in the US, but as long as she was a US citizen, or was a resident alien living in the US, it is subject to Federal and NJ Estate and Inheritance Tax, if living in NJ, otherwise the state in which she resided.

    If no there was no will, it goes by intestate law to in part to her husband, and the balance to her children. I cannot advise if there is any estate tax in Hong Kong on this money. If there is, her estate gets a foreign estate tax credit. Counsel in Hong Kong needs to be contacted.

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  • St. Germaine Act, does my situation qualify?

    My dad, myself and my husband are on the deed and mortgage as joint tenants with rights to survivorship. My Dad is the only one on the note. What will happen if he should die before note is satisfied. Will my husband and I be able to remain in t...

    Martin’s Answer

    My colleagues have tried to answer different parts of the two questions answers. If the house was purchased by your father (he is the only one on the note), but you and your husband are joint tenants, the question regarding qualification for Medicaid depends on when he made the "gift" to you and your husband, as well as whether he resides in the home, and how long he requires long term care under Medicaid. The state may place a lien on the house, but this will not affect your ability to continue to reside there. You should consult an elder law attorney regarding whether the lien disappears when your father dies (assuming he predeceases you).

    Mr. Popovich is probably correct in a technical sense, however the Garnes St. Germaine Act may provide you with protection from acceleration the note as well as, from a practical matter, as long as your payments are timely, the bank will process the payments without looking at who is paying the mortgage & note.

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  • Can I take a check made out to myself from my father's estate lawyers and right then go and cash it?

    I'm getting a check tomorrow made out to myself from my father's estate lawyers and I want to make sure I can either open a checking account or cash it right away. Thank you for your time.

    Martin’s Answer

    If it is an estate check, or a check from the attorney's IOLTA trust account made payable to you, yes you can deposit into your own account, but it is highly unlikely you can cash it as most banks, under Federal banking law, having two day waiting periods for in-state bank checks to clear and I believe 5 days wait periods for out-of-state bank checks to clear.

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  • Do I need an employee attorney?

    Got laid off without my vacation pay, bonus pay, and severance pay.

    Martin’s Answer

    I assume my colleague Mr. Gordon is correct, but it never hurts to ask an attorney who specializes in representing plaintiffs/employees for an opinion. Depending on the facts, there could be a violation of the Federal Anti-Discrimination Act.

    I would get a free consultation or pay for an hour consultation.

    You can find an employment attorney in TX near you either on Avvo or consulting Google, Find a Lawyer or the TX State Bar Association attorney referral service.

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  • How can I find out what my deceased mother's estate is worth?

    My brother is the personal representative of my mother's estate. She left a will. The estate is supposed to be divided equally among her three children. It's been years and so far my other brother and I have not received a dime. He refuses to disc...

    Martin’s Answer

    The NJ statutes allows an executor to be free from annoyance to marshal assets and pay bills for one year following appointment. Since you state it has been several years, you should, as Steven has indicated, consult an attorney to either negotiate with counsel for the estate, release of relevant documents, or to have your brother-executor account to you and your other brother, and if he (the executor has stolen monies) to have him removed as executor as well as possibly surcharged (refund monies taken).

    I have handled such cases in Monmouth County and counties North, but I am certain there is an attorney closer to Freehold, your county seat. If probate of the estate is in another county, that is where the Order To Show Cause and Verified Complaint needs to be filed with Surrogate, who is the Clerk of the Superior Court, Chancery Division, Probate Part.

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