Legal Question in Wills and Trusts in New Jersey

My wife and I are looking to setup revocable trusts. We live in NJ as our primary residence, are over 65 and qualify for the NJ Homestead Rebate, the NJ Senior Tax Freeze Program and a county-based Senior Tax Rebate of $250, we also have a second vacation home in Florida. We have some questions that we hope someone can help answer:

1. If the revocable trust is setup and the NJ and FL home are placed into the revocable trust, and if there is a need to sell \ liquidate any assets before death, what is the process that is followed under these circumstances?

2. If the revocable trust is setup and the NJ and FL home are placed into the revocable trust, and if there is a need to sell \ liquidate any assets before death, who has the ability to make the decision for the liquidation under situations where the grantors are capable of making said decisions?

3. If the revocable trust is setup and the NJ and FL home are placed into the revocable trust, and if there is a need to sell \ liquidate any assets before death, who has the ability to make the decision for the liquidation under situations where the grantors are not capable of making said decisions?

4. With any deed changes for the primary residence in NJ, will this effect eligibility for the NJ Senior Tax Freeze and county-based Senior Tax Rebate of $250 and NJ Homestead rebate?

5. What complications can arise from a title insurance perspective given the revocable trust is setup and real estate assets are transferred into the revocable trust given deed changes?

6. In a situation where the beneficiaries of the revocable trust for a real estate asset are two separate parties and the instructions \ directions are that the real estate is to be split 50-50, who enforces this 50-50 split including the definition \ means of and execution of the 50-50 split in cases where the we have both died have died?


Asked on 10/11/10, 5:23 am

1 Answer from Attorneys
Miriam Jacobson Retired from practice of law

The questions you are asking are too complex and cannot be answered without a review of all of your assets, liabilities, and family circumstances. These questions cannot be answered on this sort of on-line site, except by a stock response of "come see me." I am NOT giving that answer.

But if you do want to set up any kinds of trusts, here are my suggestions.

1. Do not use a trust service that offers to set it up for you. Invariably, they charge lots of money, do not consider all of the factors, and do not provide the necessary review and analysis of your situation. Those document are not tailored to meet your needs and may cause a result completely opposite from what you wanted. They may also create undesired tax consequences, both during your lives, and after.

2. Do not try to find a trust form, in a store or on-line, and do it yourself, for the reasons in #1, plus additional problems in funding and maintaining the trust, as well as going through the correct signing process to make the documents valid and enforceable.

3. Even with trusts, everyone still needs a will, living will [advance health care directive], and 2 powers of attorney - one for health care decisions and one for managing your finances if you are unable to. There are also always objects and possessions that should not or have not been titled in the trust, and they must be administered through your estate.

4. If you have gone to a seminar or read or otherwise heard that a revocable trust will save probate costs and time, that is not true. Some states do have high probate costs, New Jersey is not of them. While there may be some other factors that make it the right choice for you, you should be adequately legally advised and assisted in making that choice and getting the documents in order and properly signed.

So --- you will need to consult with and use the assistance of an experienced estates lawyer to evaluate your needs, and, through proper documents and signing process, to help you achieve those goals. Even after that, you should meet with an estates lawyer whenever there are changes in your financial or health or family situation, to make sure that your existing documents are still appropriate.

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Answered on 10/16/10, 7:22 am


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