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Thomas Devlin Begley III

Thomas Begley’s Answers

287 total


  • New Jersey Estate Tax Question. Is house transferred to joint irrevocable "Medicaid" trust taxable to second spouse to die?

    Couple created joint (both spouses are grantors) New Jersey Medicaid planning irrevocable trust. Trust states all gifts to this trust are incomplete gifts and states all assets are included in OUR estate tax taxable estate. Wife owned home (in h...

    Thomas’s Answer

    To give you a completely accurate answer, I would need to review the trust. Having said that, most likely the entire value is likely taxable to the surviving spouse's estate. The elective share will she executed does impact the trust. The reason the conveyance of the home to the trust is an incomplete gift is to allow for a step up in basis for capital gains treatment. The tradeoff is that it is included as part of the taxable estate. Please let me know if you require any further assistance or clarification.

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  • Beneficiary named in will is 'incapacitated person' - can estate pay to their trust or must they pay to the person?

    A will designated beneficiaries to be 'nephews' (no names, just the word 'nephews'. One nephew is an 'incapacitated person' where parent has guardianship. Another is a minor. 1) For the 'incapacitate person', who must the estate write the check...

    Thomas’s Answer

    The other answers are correct. To clarify one of the points made, if the incapacitated person is receiving needs based benefits such as SSI or Medicaid, you should seek to establish a special needs trust on his behalf. It can be done in one of two manners. Ideally, you should seek to reform the Will to establish same. If not, you can establish a self-settled special needs trust. The former is better if it can be established because it is less cumbersome to manage and allows for the family to inherit any remainder after the incapacitated individual has died. The cost of establishing this trust can and should be deducted from the incapacitated person's share of the estate.

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  • Do I have a right to see the final accounting before signing the release forms.

    Just received the monetary share of mom's will. I have asked executor for the final account of funds. Do I have a right to this information from the executor or the attorney who represented the estate

    Thomas’s Answer

    Yes. An estate can wrapped up in one of four ways. First, the executor can merely send you a check. However, in doing so, they open themselves up to liability if a beneficiary is not satisfied with his or her distribution. Second, the executor can require that a refunding bond and release be executed prior to sending out the shares to the beneficiaries. This protects the executor but does not provide information to the heirs. Third, the executor will request that the refunding bond and release be executed, but will provide what is known as an informal accounting. This accounting should detail the assets which were received by the executor, any gains and losses on investments, income received, income expended, expenses paid and amount available for distribution. Fourth, the executor may seek that the court approve his or her account. In your case, you should seek the account. You are clearly entitled it. It must be provided by statute. Good luck!

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  • Planning on hiring estate lawyer for dispute: What is retainer fee vs flat fee?

    The attorney I have spoken to say they need a retainer fee, what is a retainer fee? Is it the same as a flat fee?

    Thomas’s Answer

    A retainer and a flat fee are two different concepts. A retainer is a deposit on the work done. It possible can represent the entire fee which is to be paid. However, it is typically used either as a portion of a flat fee or a security for work to be applied to a bill based on an hourly rate. A flat fee is a type of fee which may be charged to a client. It basically means that the attorney will quote you a fee and that will cover the work performed. The number of hours taken to perform the work is irrelevant. It is an alternate to the traditional hourly rate charged by many. To make sure you understand the nature of your payment arrangement, you should insist on a written fee agreement.

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  • Funeral expenses

    My children's father passed away a few months ago.He was a resident of NJ, died in NY and the children are in MD. His mother asked the children to sign over funeral rights to her so they did. Now his mother and sisters are trying to get 2500.00 f...

    Thomas’s Answer

    • Selected as best answer

    I think the matter may be simpler. The funeral is done. The mother wanted to handle it. She can pay for it. This is not really a probate question at this point. Alot of people think "dead person = probate matter." At this point it's a a question of contract. The mother made a contract with the funeral home. She is liable under that contract to pay for it. You can inherit money, but you don't inherit debt. Mom wanted the rights; she gets the responsbility. She has absolutely right (nor does the sister) to make a claim!

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  • How to file "order to show cause" in New Jersey Probate/Surrogate Court?

    Due to the fact that I don't have the lump sum to come up with the estate planning lawyer retainer, I am wondering how to file a "order to show cause". My step-mother doesn't want to reveal the name of the attorney who is currently holding the...

    Thomas’s Answer

    If one attorney is out of your price range, consider another. Also, if you father has passed on and his Will has been probated, it is a public record and you can merely go to the Surrogate's office to get a copy. If it hasn't been filed yet, I would hire counsel asap. If you have to, borrow the money from a friend. I know folks want to find an attorney to work for free; however, I can't imagine would in your profession. If the will hasn't been filed, it often means the stepmother didn't have to because she already has the assets. Get a good lawyer in the area in which your father died, borrow the money to pay him or her, and get moving before the money is gone for good.

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  • Does New Jersey Legal Aid handles estate matters?

    Does New Jersey Legal Aid handle estate matters?

    Thomas’s Answer

    No. In New Jersey, legal aid is typically limited to criminal matters and select matrimonial matters. Certain Surrogate offices will provide preparation of very simple wills and other related documents. If you are expecting an inheritance, you may see if a lawyer is willing to get paid from the inheritance or work on a contingency.

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  • Our dads estate has been settled. we have still not received payment what can we do?

    please let me know what we can do. thank you.

    Thomas’s Answer

    File an action in probate court to compel distribution. If there is no just cause for the delay, the estate or even the executor may have to pay your legal fees.

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  • Currently seeking the a estate planning attorney in New Jersey.

    Situation: -Father was gravely ill and to the point where he couldn't move around to do anything for himself. -He married a lady so she can receive her papers (wrong but he did). He made her P.O.A so she could get his meds and have access to ba...

    Thomas’s Answer

    You make a lot of assumptions. However, people often do things they shouldn't and don't do things they should. Case point - getting married for a reason that may not have worked. A lawyer should have discussed a prenup, but there are many that don't. The most troubling thing for you is that your father should have talked to you about his wishes and let you know where he kept his will. He should have let you know the name of the attorney who drafted. Face it, he left you a mess. If you can't find the documents, his wife will get over one-half of the estate. Run, do not wak, to hire an attorney.

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  • What are the duties of power of attorney? Don"t they need to keep a ledger and be able at anytime to show spending?

    sister who is a lawyer had father make her power of attorney. He did not want her but he was led to believe that anyone on disability does not qualify. she refuses to discuss anything and makes all financial decisions without ever consulting her...

    Thomas’s Answer

    Let me make three points to your question. First, Anyone can act as power of attorney so long as they are over the age of 18 and mentally competent. Being disabled does not disqualify someone. When selecting an agent, one should select a person who has impeccable integrity and good business judgment. Any statement by your sister to the contrary would be a fabrication. Second, executing a power of attorney does not authorize the agent to take over the life of the principal while he or she is competent unless the principal directs him or her to make decisions on his or her behalf. Third, as to disclosure, if your father is alive and competent, he can direct your sister to disclose or keep private - at his discretion. He has a right to privacy. Upon his death, or if he becomes mentally incapacitated, you can demand an accounting. After death, if you are an heir of his estate, it is a matter of right. If he is still alive, you have to show cause for the information.

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