Posted by:Pierson W. Backes | Posted on: April 15th, 2015 | 0 CommentsOne recurring challenge in my practice is that it's difficult to advise a client about how attorneys' fees are likely to be handled in contested probate. I've spoken and written on the subject, but I'm always quick to admit that it's still not something I can address with confidence. I'd like to thank attorney Robert Morris of the Mercer County Estate Planning and Probate Committee for calling my attention to a recent unpublished trial court opinion, IMO Estate of Cohen, in which Judge De La Cruz exclusively addressed the matter of attorneys' fees in contested probate. The discussion is a bit technical, but I write here not just for the general reader but also for my own reference and edification. Accordingly, here's a rather long section of the opinion: The authority to allow an award of counsel fees is found exclusively in the rule so permitting in specified circumstances. State v. Otis Elevator, 12 N.J. 1 (1953) held “[f]rom the outset in New Jersey, following English precedents, the allowance of costs and counsel fees had been uniformly considered by the courts of this State to be a matter of procedure rather than of substantive law.” Ibid, p. 5. The New Jersey Supreme Court in In re Reisdorf, 80 N.J. 319, 326 (1979) unanimously held “[e]xcept in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a will dispute.” Broad statutory power is lodged in the Court of Chancery to award counsel fees. Katz v. Farber, 4 N.J. 333, 339 (1950). R. 4:42-9(a)(3) provides the authority to award fees and costs in this case type. The Rule provides in pertinent part as follows: (a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except (3) …If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate… In the assessment of such a permissible award, several factors should be considered. Among factors to consider in fixing the allowance for legal services rendered the estate are: 1) the amount of the estate and the amount thereof in dispute or jeopardy as to which professional services were made necessary; 2) the nature and extent of the jeopardy or risk involved or incurred; 3) the nature, extent and difficulty of the services rendered; 4) the experience and legal knowledge required, and the skill, diligence, ability and judgment shown; 5) the time necessarily spent by the attorney in the performance of his services; 6) the results obtained; 7) the benefits or advantages resulting to the estate, and their importance; 8) any special circumstances, including the standing of the attorney for integrity and skill; and 9) the overhead expense to which the attorney has been put. See In Re Bloomer, 37 N.J. Super. 85, 94 (App. Div. 1955). In any case, the counsel fee allowed should never exceed reasonable compensation for the services rendered the estate. The standard for the calculation of a reasonable attorney’s fee award payable under a feeshifting statute or rule has been plainly laid out in Rendine v. Pantzer, 141 N.J. 292, (1995). The Rendine Court held “[u]nder the LAD and other state fee-shifting statutes, the first step in the fee-setting process is to determine the lodestar: the number of hours reasonably expended multiplied by a reasonable hourly rate.” Id. at 335. The Court also made clear that this assessment is the most significant element in the award of a reasonable fee because that function requires the trial court to evaluate carefully and critically the aggregate hours and specific hourly rates presented by counsel for the prevailing party to support the application. Id. The trial court must then determine whether the assigned hourly rates for the participating attorneys are reasonable. Id. at 337. The sensibility of this formula is highlighted in the Court’s mention that “[t]hat determination need not be unnecessarily complex or protracted, but the trial court should satisfy itself that the assigned hourly rates are fair, realistic, and accurate, or should make appropriate adjustments.” Id. Tempering the assessment of a reasonable award is the principle that this kind of award is not designed to achieve complete indemnification. Westinghouse Elec. Corp v. Local No. 449 of Int’l Union of Elec. & Radio Mach. Workers, 23 N.J. 170, 178 (1957) (citing Clements v. Clements, 129 N.J. Eq. 350 (E. & A. 1941)), In another helpful case, the Appellate Division has held that “[t]he aim is not to make the client whole, but to fix the amount of fees and costs at an amount which is reasonable in the circumstances. See, City of Englewood v. Veith Realty Company, 50 N.J. Super. 369 (App. Div. 1958). This Court understands that the charge is to identify a sensible, reasonable award not meant to completely indemnify. With the authority presented in R. 4:42- 9(a)(3), and given the binding and sensible guidelines for this assessment, this Court makes the following findings and conclusions. No yardstick is available for the purpose, no standard percentages or per diem rates can be recognized which would be fair to both parties in all cases, precedents indicate that each case must be judged by its own overall circumstances. The best that can be said in the way of a general standard is that reasonable compensation should be allowed.” See City of Englewood v. Veith Realty Co., Inc., 50 N.J. Super. 369, 376 (App. Div. 1958).
Posted by:Pierson W. Backes | Posted on: November 21st, 2014 | 0 CommentsNew Jersey, like virtually every state, allows a spouse to take an "elective share" of their deceased spouse's estate. The general notion, and the national model, is that you can't cut your spouse completely out of your will. In reality, though, New Jersey's approach is very different from most states, and the right of a spousal share is far from a sure thing. By statute, a spouse has a right to take an elective share against the estate, and an initial review of the statute makes the election calculation seem relatively straightforward: as a minimum inheritance, a surviving spouse in entitled to one-third of the “augmented” estate. N.J.S.A. 3B:8-1. The augmented estate means the gross estate, reduced by certain administration expenses, plus the value of property transferred by the decedent during the marriage under certain circumstances. The definition of the augmented estate is generally understood as primarily seeking to recover gifts made within 2 years of the date of death. In application, the law providing for spousal election is so contorted that I'm inclined to say that the exceptions virtually swallow the rule. The most significant feature of New Jersey’s spousal election scheme is that, unlike similar laws in most other states, the New Jersey law is not designed to prevent disinheritance. Instead, it is designed to assure a modicum of continuing support if needed. The assets of the surviving spouse, whether vesting by virtue of the decedent’s death or independently acquired, are deducted from the elective share. If the disinherited spouse’s assets exceed one-third of the augmented estate, then the spouse is not entitled to an elective share. See, e.g., Aragon v. Estate of Snyder, 314 N.J. Super. 635 (Ch.Div. 1998); In re Estate of Cole, 200 N.J. Super. 396 (Ch.Div. 1984); In re Estate of Bilse, 329 N.J. Super. 158 (Ch.Div. 1999). In short, it's true that a surviving spouse is entitled to an elective share, but in effect, that share gets "paid" first from the surviving spouse's own assets.
Posted by:Pierson W. Backes | Posted on: November 21st, 2014 | 0 CommentsOne recurring theme in my practice is that jointly held assets present a host of potential problems in the administration of a decedent’s estate. Generally, what I'm thinking of is bank accounts and other financial holdings, though other property can pass to a joint owner (real estate, for instance, often passes to a spouse by the entireties or to a joint tenant with right of survivorship). Whenever an asset passes by virtue of being jointly held, it passes outside the decedent’s will, and the testamentary intent of the decedent may be inadvertently defeated. It's regrettably common for someone to make will and then effectively make the will meaningless because, with no intention to do so, the person has removed all of the assets from their estate by naming joint owners. I have seen several cases where a person made a will leaving their estate to be divided equally among their children, and at the time the will was made all of their assets were in bank accounts and brokerage accounts jointly owned with just one of their children. Joint accounts can create tax problems as well. The general statutory framework provides that a jointly owned becomes the asset of the survivor upon the death of the decedent. The New Jersey Multiple-Party Deposit Account Act provides that funds in a joint account belong to the surviving party absent clear and convincing evidence of a different intention. The New Jersey estate and inheritance tax rules make the opposite presumption. All funds held in a jointly-title account are presumed to belong entirely to the decedent and are included in the taxable estate absent a showing of other intent. If the joint tenant is someone other than the spouse, child, grandchild, or parent of the decedent, an inheritance tax is triggered, and the estate must file a return and, where appropriate, seek to establish that no inheritance tax should be applied. It is common for people to hold a joint bank account with a child or trusted friend as a “convenience account,” to allow the co-owner to assist in the management of the decedent’s affairs. Many people also use joint-account designation as a form of do-it-yourself estate planning, with joint bank accounts intended to pass as gifts to the surviving owner. There are manifest tax risks with these arrangements. For one, if the order of death is not as the maker of the account anticipated, they may find an estate tax imposed on their own money while they are living. For example, if a person adds her niece to an account so that the niece may assist in paying bills and the like, and then the niece predeceases, an inheritance tax will be triggered on the whole account, and the niece’s estate will be forced to file an inheritance tax return and fight to exempt the account from tax. Another area of concern in administration is that joint accounts open the door for a certain category of probate litigation. Even if the account was in fact intended to pass to the survivor, another heir of the decedent may challenge designation as the result of undue influence. The close relationship that prompted the decedent to make the joint-owner designation may be the basis for such a challenge.
Posted by:Pierson W. Backes | Posted on: April 15th, 2014 | 0 CommentsThere are pros and cons to arbitration and alternative dispute resolution clauses, which are prevalent in contracts of all descriptions. Both processes are intended to provide a less costly and time-consuming way of resolving disputes using a neutral party. There are some significant caveats, however. The quicker and less formal factual discovery process is largely within the discretion of the umpire or arbitrator, and court rules of evidence and procedure don't apply. While the ADR Act allows a decision to be set aside on the basis of an error in applying the law, this is not the case with arbitration awards unless the arbitration clause so provides. The qualifications and knowledge of the umpire or administrator are important and unless addressed in the arbitration clause the parties may not have control over this issue. In New Jersey, there are two separate statutes governing alternative dispute resolution and arbitration. There is also a Federal Arbitration Act which is intended to provide maximum enforceability of arbitration agreements. The ADR Act, as described below, was passed in 1987 in an attempt to correct some of the shortcomings of arbitration. See Comment, Alternative Dispute Resolution. The New Jersey Alternative Procedure for Dispute Resolution Act (N.J.S.A. 2A:23A-1 et seq.) ("ADR Act") applies in two circumstances: (i) where a written contract includes an advance agreement to settle disputes under the ADR Act or (ii) where the parties to a dispute agree in writing to use ADR, whether the controversy arose under a contract or not. Such an agreement constitutes a waiver of trial by jury and a waiver of rights to appeal, except as the ADR Act allows. An "umpire" is designated in accordance with the means specified in the contract, or if no such means is specified, by initiating a summary action in Superior Court to have an umpire appointed, The umpire has complete authority to decide all issues of fact and law. The courts will not consider any intermediate appeals unless there is a showing of manifest denial of justice or a party's interests will be irreparably harmed.
Posted by:Pierson W. Backes | Posted on: April 15th, 2014 | 0 CommentsThere are some dramatic changes to the way LLC agreements are interpreted and enforced under the Revised Uniform Limited Liability Company Act (the "Revised Act"), which became effective in March 2013 for newly formed New Jersey LLCs and will apply to all New Jersey LLCs as of March 2014. N.J.S.A. 42:2C-91. A few highlights are provided below. The Revised Act may "change the deal" among members even in existing LLCs, especially if there is no written operating agreement in place. For example, an LLC is presumed to be member-managed, and every member has equal rights in management unless the operating agreement provides otherwise. It would be fair to say that one of the reasons LLCs have become so popular for small businesses is that they require fewer of the formalities required for corporations - shareholder meetings, elections of directors, and so on. On the other hand, lack of formalities and the very flexibility allowed by the Revised Act could make any disagreements among members more difficult and expensive to sort out. The Revised Act includes default provisions that make all members "equal" regardless of what percentage of capital they contributed to the company. Oral and Implied Terms of Operating Agreements As noted in other posts, the operating agreement among the members is the key governing document of an LLC. Until adoption of the Revised Act, "operating agreement" meant a written agreement. Now, it means "the agreement, whether oral, in a record, implied, or in any combination thereof." There are good practical reasons for the traditional requirement for agreements to be in writing, and to interpret a written agreement as expressing the final terms of agreement - replacing negotiations, prior incomplete drafts and so forth. Otherwise, the terms of an agreement might have to be reconstructed from many different records (visualize paying an attorney to pore over all of the e-mails between the parties), testimony, and whatever evidence would show an "implied" agreement (such as a pattern of conduct between the parties). It would seem that proving the terms of an agreement could be far more complicated now, especially with the "combination" language in the Revised Act, unless the agreement includes an express "merger" clause stating that it represents the final and complete agreement of the parties and only can be amended in writing signed by all parties. (This is an example of language that non-lawyers would not necessarily recognize as important.) Member-Managed LLCs Have "Equal Rights" in Management Regardless of Ownership Percentage A key section of the Revised Act is "Management of Limited Liability Company" (N.J.S.A. 42:2C-37). LLCs are presumed to be managed by the members - and every member has "equal rights in management", per capita rather than by percentage ownership. In the former statute, members had the right to participate in management according to their percentage interest in the company. If you contributed 75% of the capital, you would be entitled to 75% vote on decisions and 75% of the distributions of profits. Other language in the same section of the law may have been intended to clarify things by stating: "A difference arising among members as to a matter in the ordinary course of the company's activities may be decided by a majority of the members." Note, this does NOT say a majority of capital contributed. If you have an even number of members - say, two - even if you contributed different percentages, there will not necessarily be a "majority of members" to resolve disagreements. Unanimous Agreement Required for Decisions Outside Ordinary Course of Business Under the Revised Act, unanimous agreement by members is needed for decisions "outside the ordinary course of business," again regardless of ownership percentage (in comparison, if certain decisions had to be approved by the shareholders of by a New Jersey business corporation, the presumption is that a majority of shares would decide the vote unless the Certificate or By-Laws expressly provide otherwise.) Members have Equal Rights to Distributions Regardless of Percentage of Ownership The Revised Act also changed the presumptions about sharing of profit distributions, if no written operating agreement is in place. Distributions are to be made equally to members, regardless of their capital contributions. Review and Clarification of Operating Agreements is Strongly Advised The items noted above are only a portion of the changes put into effect under the Revised Act. We strongly recommend that clients have their LLC agreements put into writing - or, if there is already a written agreement, have the agreement reviewed in light of the Revised Act.
Posted by:Pierson W. Backes | Posted on: April 15th, 2014 | 0 CommentsWhen launching a small business, most people are not sure whether they need to form a company or not - and if so, should they form a corporation, or use another form such as an LLC. They also may be unsure whether they should organize under the law of their "home state" or choose another state, such as Delaware. The reasons for forming a company are generally understood - limiting liability (keeping your personal assets, other than those you specifically put into the business, safeguarded from business losses). A professional-seeming business presence can be another reason. It can seem deceptively easy these days to "do it yourself" in setting up a company. Many states including New Jersey have created user-friendly web sites to help you get things underway. In the excitement of getting the business launched, legal documentation and expenses may seem like a boring distraction. Commonly we see people take the first step - filing a certificate to set up a corporation or an LLC - without realizing that there are other crucial steps to completing the set-up of the company. Even with the best of intentions, if postponed at the beginning, those actions have a way of continuing to be postponed indefinitely. Completing the organizational process for a company is surprisingly complex, even if you are the sole owner and contributor. If others are investing in your business, then you REALLY owe it to yourself (and to them) to answer questions about the company's operation before money changes hands. A business plan is a crucial first step. In New Jersey, help and mentoring is available from various sources. The following link is an 80-page Guide to Doing Business in New Jersey that is thorough and helpful: http://www.nj.gov/njbusiness/pdfs/Doing_Business_in_New_Jersey08.pdf. This guide addresses many issues beyond writing a business plan, including basics of setting up a company, resources for funding, suggested topics that should be covered in governing documents, several pages on franchises, and ongoing requirements once your business is launched, depending on how you conduct business (for example, if you have employees, you will have responsibilities for unemployment insurance, workmen's compensation, and income tax withholding). Corporations, partnerships and LLCs have different organizing steps and documents, and the steps as well as the legal framework are different in different states. Corporations have more formalities on an ongoing basis which it's important to keep up with (even if they seem silly - like the sole owner, each year, re-electing himself director and president). Corporations are governed according to by-laws (different from the certificate filed with the state). LLCs are more flexible - potentially either a good or bad thing, as failure to spell out details in an operating agreement (again, different from the certificate filed with the state) will leave more legal questions open than would be the case with a corporation. While a company formed in one manner (corporation, LLC, etc.) generally can convert to another, it's not simple or inexpensive so making the right choice at the outset is preferable. This link from New Jersey's business website lists some of the pros and cons of each. http://www.nj.gov/njbusiness/starting/basics/business_basics.shtml In choosing what state to organize in, it's important to be advised on the differences in the law between one state and another, and make sure your documents follow suit. Delaware has a well-developed background and is often chosen for an interstate business, or to facilitate the eventual sale of the company. Most public companies are organized in Delaware. The following link is their pitch for using Delaware: http://corp.delaware.gov/pdfs/whycorporations_english.pdf However, there are additional costs involved, such as maintaining a Delaware "registered agent." In addition, an out-of-state company is required to file for authority to do business in their "home" state, and possibly other states in which the company maintains an office or does business. The recommended terms of governing documents need to be tailored to the state law. While each state would include certain common elements, others are state specific and therefore there is no one-size-fits-all form. The prospective owners of a company, whatever form you choose, each should have the opportunity for an independent review of the governing documents and should sign a subscription agreement.
Posted by:Pierson W. Backes | Posted on: April 15th, 2014 | 0 CommentsIn these days of Facebook, LinkedIn, Twitter and large numbers of contacts it may seem natural to use this means to publicize your business launch and perhaps invite investment. Beware! In general, federal and state securities laws do not permit businesses to offer or sell interests in that business without "registration" of the securities or an exemption. There are piecemeal exemptions that have various limitations and requirements - such as, that all of your investors are financially sophisticated and able to bear the loss of their entire investment; that they have been provided access to the type of information that would be included in a registration statement; and so on. Other exemptions apply only to offerings within a certain state. In proposed rules published on October 23, 2013, the United States Securities and Exchange Commission is opening up the possibility of raising capital from investors through a process known as "crowdfunding." This describes raising small amounts of money from broad groups via the Internet. There would be a limit of $1 million raised within a 12 month period, and caps on how much each investor could invest depending on their financial situation. Certain facts about the company and its management and owners would have to be provided to the SEC, and the offering would have to be done through a registered "portal". President Obama in 2012 signed into law the "JOBS Act" which, among other things, ordered the SEC to propose rules for this practice. The rules are now subject to a 90-day comment period, then will likely be revised. The accompanying press release states in part: Washington D.C., Oct. 23, 2013 —
Posted by:Pierson W. Backes | Posted on: April 15th, 2014 | 0 CommentsAs noted previously, the first step in setting up a new company, registering it with the state, may not seem so hard. The form is very short. In New Jersey it can be completed and submitted online. However, the crucial governing documents of a company are the terms adopted by the company to govern itself, within the parameters set by the law (for a corporation, the by-laws; for a partnership or limited partnership, the partnership agreement; for an LLC, the operating agreement.) A web search turns up many companies offering corporate kits, and some will include sample by-laws or operating agreements (note, these still need to be completed and adopted - they are a form with blanks). In general, those forms are lacking in some of the most crucial particulars that are specific to your business and your relationship to any other investors or managers. The by-laws, partnership agreement or LLC operating agreement are the governing documents that determine issues among the members and managers. Just a sampling of the possibly awkward - but important- things to address: (i) If a party is making a capital contribution of professional services, "expertise", "time and effort" or the like, what is the dollar value being put on that contribution? What are the standards for amount of time invested (full time? part time? as needed?) and quality of the effort? (ii) Is the company managed by a manager, or by the members? If the latter, and there is an even split of opinion on a matter, how will it get resolved? (iii) Can a director/general partner/manager be removed? How and when? (iv) Under what circumstances can an investor choose to, or be asked to, withdraw? (v) Can additional owners be admitted? Who needs to consent to this? (Adding more owners raises working capital but "dilutes" each person's ownership). (vi) Who has authority to borrow money or to sign contracts for the company? (vii) Are there going to be classes of membership, some of whom may receive different allocations, distributions or dividends than others? (viii) Can investors sell their interests to anyone else? (usually, not) (ix) What happens in the event of the death, disability, bankruptcy, divorce or other adverse event with an investor or manager? Will the company be dissolved? Do his heirs get his interest? Is there a buy-out? (x) Does everyone share the same understanding about loaning the company money, versus making an equity investment? Have they acknowledged in writing that there is no market for their shares and no guarantee of receiving their investment back? Investors should sign a subscription agreement with these and additional disclosures, to help protect the company and its managers from charges of securities fraud. (xi) Do you understand the parameters for trying to raise money from other people? In theory, you cannot offer or sell securities without a prospectus in a form prescribed by the United States Securities and Exchange Commission. While there are certain exemptions that fit most small-business situations, you have to know and stay within their boundaries. All certificates should bear a legend such as that below. “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION IN FORM AND FROM COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
Posted by:Pierson W. Backes | Posted on: April 15th, 2014 | 0 CommentsAlthough many of us would rather not think about needing long-term care, the federal government website http://longtermcare.gov/ notes that 70% of people turning age 65 can expect to use some form of long-term care during their lives. The vast majority of care is provided by unpaid family caregivers, most of them women. Those who can plan ahead are likely to get better results and place a far lighter burden on family members. How does one learn about all of the options that may be available? Just the terminology can be confusing, from "active adult" communities to "continuing care retirement communities" to "assisted living." In addition, there are many programs and services that may provide in-home assistance. New Jersey has published a useful detailed guide at http://www.nj.gov/njhealthlink/ltc_guide.pdf. The state also has tried to simplify consumer access to the various agencies and programs that may be relevant through New Jersey EASE (which stands for Easy Access Single Entry). The State Information and Assistance Senior Helpline has a toll free number (877-222-3737). All seniors and their families are eligible. Where else can you access objective information about local options? Medicare.gov has a website with a number of helpful tools for comparing nursing homes and home health care. In researching nursing home care, the user inputs his or her zip code, which pulls up a list of facilities with overall ratings. The user then can select several facilities to compare in greater detail. http://www.medicare.gov/nursinghomecompare/search.html. Similarly, there is a tool for locating agencies that provide home health care services. It includes patient survey results. http://www.medicare.gov/homehealthcompare/. There is an assisted living website sponsored by the industry. An organization called ALFA has on online directory that includes reviews. http://directory.alfa.org/. An insurance company called Genworth publishes costs for various senior living arrangements. https://www.genworth.com/corporate/about-genworth/industry-expertise/cost-of-care.html. The New Jersey "state median" statistics that they publish show the following annual costs: