Legal Question in Wills and Trusts in New Jersey

Re: Out of state children & executor

Your question is somewhat unclear, but I will assume that the "executor" you refer to is the executor of your father's estate (but not of your mother's estate).

First, when your father dies, his estate will have to go through probate, i.e. via the surrogate's department in your county. The executor should retain an attorney to assist in this process.

In the meantime...You do not indicate any reason to believe your father is incompetent, therefore, I assume he is legally competent.

As a legally competent individual, he is fully entitled to choose to have whatever type of Will and/or estate plan that he feels is suitable, even if you and your siblings disagree with his choice(s).

I.e., you can't "make" your father do what you want.

If you feel you can offer beneficial suggestions to your father which might assist in estate planning and similar issues for your father and your mother, I would suggest that you and your siblings offer to pay for your father to have a consultation with an attorney as well as offering to pay for formulation of an appropriate estate plan, including revised Will(s), POA(s), advanced health care directives, etc. Since there are numerous estate planning issues here, your father would need professional assistance in developing an estate plan.

While you can't force your father to do anything, certainly, offering to pay for the necessary professional services should provide him with adequate incentives to at least look into the matter.

Reading between the lines, however, I suspect that there may be other issues among you, your siblings, and your parents, which is interfering with open and honest communication and cooperation. For example, the fact that you all live in different states, and no one lives in the same state as your parents, is suggestive of a family which is not tight-knit. Secondly, the fact that you would frame your question in terms of trying to "make" your father do something, rather than in terms of "helping" your father, is also suggestive of a somewhat strained relationship.

Perhaps some more attention to the intrapersonal issues could also help you resolve the purely legal questions.

I strongly recommend that you consult with an attorney immediately so that you can explore your legal rights, obligations, and options. If you wish to discuss retaining my services, contact me at:

[email protected]

(973)-605-8995

(*Licensed in New Jersey, Maryland, and Dist. of Columbia)

[Disclaimer: The above comments are not intended as nor should they be relied upon as "legal advice", which can only be obtained by personal consultation with a retained attorney; at which time the specific facts and circumstances of your case can be thoroughly evaluated. This reply is provided for general informational and educational purposes only, and does not create an attorney-client relationship with the responding attorney.]

Re: Out of state children & executor

Probate in NJ is not complicated. However, owning real estate in PA will require a separate probate proceeding in that state. It may make sense for your father to have a Living Trust to avoid PA probate and to help manage his affairs. One or more of the children could be a trustee, co-trustee or successor trustee for your father.

Your father should probably have an estate planning attorney review his current estate plan to see that it is appropriate. In addition, a living will and power of attorney may be useful.

You don't say whether or not your mother is competent. If she is, her plan should also be reviewed.

Re: Out of state children & executor

I agree with Jon, especially since you do not know which of your parents will pass away first. Plus, you do not say how the real estate is titled; in your father's name alone or jointly between your parents. This is important to know since if the properties are titled jointly and your mother may be incapacitated, this could become a problem, as she will then inherit the properties, by Deed registration if your father were to pass away first. I suggest that all assets be placed in a trust, as did Jon. This will accomplish the avoidance of probate in either of NJ and PA, plus allow the trustees to handle the properties regardless of the order of death between your parents. I do recommend that the trust be accompanied by simple Wills (being "pour over", which means that any assets not originally placed in the trust will ultimately go there). The Wills would cover things that are not appropriate for a trust like cars, furniture, furnishings, jewelery and the like, and the trust would, upon the passing of both parents, act to be the equivalent of a Will. Additionally, I suggest getting durable Powers of Attorney from both parents, plus durable Health Directives (Living Wills). If your mother is incapacitated or possibly nearly so, the trustees can be your father and the siblings, with your father the managing trustee (so he can keep control of the assets and investments), your father as executor and the siblings as successors in your mother's Will and just the siblings in your father's Will (if your mother is incapacitated). Similar set-ups would be contained in the Power of Attorneys and Health Directives (again depending upon your mother's capacity). Use of a trust will avoid dual probates (one for NJ and another for the PA property), saving the fees and costs, and could provide immediate access to the trust assets upon the survivor's death, with no probate complications. You do not provide values for the properties. If potential federal or state inheritance or estate taxes are a possibility, the trust could be worded in such a way as to minimize or possibly eliminate these potential taxes. As a NJ attorney involved in these situations for almost 40 years, I could assist you in the preparation of the recommended documents and the orderly transfer and re-registration of assets to the proposed trust.