Contesting a will is usually based on two claims. Either the testator (person who died) was incompetent at the time he or she signed the will or they were unduly influenced to execute the will they did. Whether the person was incompetent when they signed their will must be supported by clear and credible medical evidence. To prove undue influence, you must show there was a “confidential relationship” between the testator and the person benefiting from the will as well as “suspicious circumstances” surrounding her execution of the will. If you can show those two things, it will be presumed that there was an undue influence. That presumption of undue influence can be rebutted, but that can be difficult.
Our Blog is our way of helping you make sense of what may otherwise be a perplexing or confusing situation in which you may find yourself. But don't despair. Although you may think you are the only one experiencing some type of difficulty or hardship, if you look around, you will see that others are as well. It is said that "what is most personal is most general” — and that is true.
It's in the spirit of making the personal seem more general that we write these blogs so that you gain a better awareness of the issues you may be confronting. And in the process of gaining awareness, you begin to develop a realistic approach to whatever it is you are seeking to accomplish. Of course, these Blog posts are no substitute for one-on-one legal advise; however, you may find them useful, if for no other reason than to put your concerns into the proper context. From there, additional research and consultation with legal professionals can follow.
We hope you find these blogs helpful as you navigate through life's many challenges and opportunities!
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A Mini Mental State Exam (MMSE) is a face to face screening assessment that is conducted to detect a person's cognitive impairment and whether they may have dementia. It's a useful tool, but it cannot tell you whether the person has Alzheimer's Disease, or an organic brain disorder or has had a stroke or even a urinary track infection. Further diagnostic testing is always necessary.
When a child turns 18, they are presumed to be competent which can only be altered by a court Order through a process called guardianship. When you apply to become someone's legal guardian, you are, in effect, asking the court to declare the person incapacitated and to appoint you (a parent or sibling for example) as their legal guardian. However, incapacitation is not an all or nothing proposition and a person may have limited capacity to do certain things, in which case imposition of something called a "limited" guardianship or conservatorship might be indicated which are less restrictive than a full guardianship.
Feeling lonely affects everyone at all ages, though especially the elderly who no longer feel valued or useful in society. Feelings of loneliness, isolation and abandonment can also have a deleterious impact on our mental as well as physical well-being. A healthy response is to develop meaningful relationships and connections with people across all generations.
Elder abuse can occur in many forms, involving a range of physical, psychological, sexual and financial abuse and neglect. The challenge, in many cases, is that it is difficult to detect and often occurs within the trusted confines of family, friends, neighbors, care givers and care facilities. It also exploits people who may be frail and vulnerable, as well as physically and mentally compromised. But there are ways you can help.
Special Needs Trusts and a Supplemental Benefits Trusts are similar in the sense that they are both intended to preserve "means tested" governmental benefits for a disabled person. However, Special Needs Trusts are funded with the disabled person's own money while Supplemental Benefits Trust are funded with other people's money. Because of that distinction, Special Needs Trusts have a pay-back provision for Medicaid while Supplemental Benefits Trusts do not have a pay-back provision when the disabled person dies.
Unless you are purchasing a condominium, or townhouse or cooperative, it is a very good idea to have a sweep done of the property to make sure there are no undisclosed underground tanks. The removal of tanks and surrounding soil can be very expensive so these issues need to be addressed before closing. Once you close, it is too late to go back to the seller.
If something were to happen to you, obviously you would want your children to inherit your money, but at what age are your children mature enough to handle the money? In his latest blog, Mr. Serra addresses factors to take into consideration in making this important decision.
At first glance, mediation and arbitration look the same, but they differ in many respects. Mediation is a voluntary process that is intended to facilitate a settlement between the parties, whereas arbitration is more of an informal adjudicatory process whereby the arbitrator decides who wins and who loses.
In the news yesterday was an article about legendary astronaut, Buzz Aldrin, who at age 88 is in a legal battle with his two children and former business manager over whether he is able to manage his own affairs.
Can you reverse a judicial determination that a person is incapacitated? The simple answer is yes –a person who has been declared incapacitated by a court can be restored to full or partial capacity. However, the process is not easy. Let's first look at the facts and then we can consider the law.
I had a case once involving an elderly gentleman (we'll call him Harry) who had dementia and throat cancer. His medical condition was precarious and getting to the point where he was no longer able to swallow. So we were faced with whether or not to insert a feeding tube. Of course, without a f...
When sibling rivalry can come back and hurt us in terms of how we are cared for in the future. That's why it is important to select which child you want in charge of managing your affairs and making medical decisions for you when and if you are unable to do so on your own.
Yesterday I left court with mixed emotions. I was happy that I was successful in obtaining guardianship in favor of my two clients (a brother and sister), but at the same time saddened by the fact that they had to file guardianship for both their parents.
I am convinced that the number one reason most young parents don't execute Wills is because they cannot agree on who should be the guardian for the minor child or children. I know this because when I meet with young parents to go over their estate plans, the discussion flows smoothly, until the d...
New Jersey has two types of taxes that can be assessed against an estate. One is the "Estate Tax" and the other is the "Inheritance Tax." Starting ion 2018, New Jersey no longer has an "Estate Tax" but there is still the Federal Estate and Gift Tax on estates exceeding $11,200,000 that needs to be considered, though the vast majority of us have estates well below this amount. The New Jersey "Inheritance Tax" is assessed based on the relationship between the testator and the beneficiary regardless of the overall size of the estate. Spouses, children and grandchildren are exempt, but other more distant relatives and friends are taxed at between 11% and 16%.
Dying without a will means your estate will be distributed in a way you may not want. It also leaves to others to decide who will take care of your children and who will oversee their money. The best way to avoid this is to have a will drawn up for you! We can help you at a very reasonable cost through our on-line legal services platform!
If you read the first four blogs of this series, you know how much I encourage everyone to make sure they do some basic estate planning. This includes preparing a Will as well as a Durable Power of Attorney and Living Will. These may not seem like important documents to you now since you may be...
Anyone who has applied for a government program knows how frustrating that process can be. But applying for Medicaid – forget it. I would rather go through a root canal! Medicaid is a form of welfare Medicaid is a federal social welfare program that is administered by the states that pays for...
The fear of having to go into a nursing home scares the bejeebers out of people – and it should! First of all, no one aspires to want to live out the remainder of their years in a nursing home. Second, the cost can be crippling. The average cost for a nursing home today is about $10,000 per mo...
In our first post, Mrs. Smith learned of and finally came to terms with her husband's diagnoses of dementia, probably Alzheimer's disease. Alzheimer's is not an easy diagnosis while a person is alive, but experienced doctors can make a fairly accurate diagnosis through eliminating other causes o...
An initial diagnosis of dementia is difficult to accept, mainly because we think it will never happen to us or a loved one. In this humorous vignette, it wasn't until the reality of her husband's condition touched her at a very personal place in her heart that she realized her husband's memory deficits were minded more serious than she thought.