Long Marmero
& Associates LLP

A Codicil to a will is an amendment to your Last Will and Testament and is used in some situations to save the expense and time of executing an entirely new document.

You may want to change the name of an executor, you may want to leave somebody out that you had already previously given something to.

A Codicil looks the same as a will but it is much shorter. It simply refers to the paragraph you want to change, makes the change and then you sign it in front of two witnesses and a notary in the same way that you executed your original Will.

Some issues should not be addressed in a Codicil and may require the execution of an entirely new document. Consult an attorney about when the use of a codicil is appropriate for your needs.

If you have a question about your estate plan invest in the peace of mind of speaking with a Long, Marmero attorney.

Question: How do I get a copy of a will from a person who died in 2004?

In New Jersey the Surrogate’s office in each county handles probate issues. When a person dies a representative known as the executor (male) or executrix (female) brings the death certificate and the will to the Surrogate’s office.

If the will complies with the requirements set forth by the courts it is admitted to probate. The will and other important documents are kept by the Surrogate in their files.

To get a copy of a will that has been probated you can go to the county surrogate’s office and request a copy. Usually the fee is between $10-$30 based on the fee structure set by the county and the number of pages of the will.

Note that if there were no assets in the estate there may be no will probated. A will where there are no assets may be filed with the surrogate’s office but will not get a docket number and will not be public record.

Some counties make their surrogate’s records available online. My favorite county surrogate’s website is Camden – you can search for the availability of documents online. See the site HERE

Generally a beneficiary of an estate will have been notified at the time of probate but sometimes this step is missed or neglected. If you have any questions about what the Will of a loved one it may be worth the effort and expense to have peace of mind.

For a link to the contact information of each of the 21 county surrogate’s offices – CLICK HERE

I Bought a Qualifying Home in 2010 – Do I have to wait until I file my 2010 taxes to claim the First Time Homebuyers Credit?

Many people bought homes in 2010 before the April 30, 2010 deadline. Those buyers can certainly use the tax credit for fix up projects and other expenses.

Do you have to wait until you file your 2010 taxes to get your credit?

Good news! No you do not. Qualifying purchasers may apply for the credit in 2009 or 2010. See the IRS article here.

How do I claim the credit immediately?

If you have already filed your 2009 income taxes you may file form 1040X along with Form 5405. You will need the following documents:

* Purchasers of conventional homes should include a copy of Form HUD-1, Settlement Statement, or other settlement statement, showing all parties’ names, property address, sales price and date of purchase.
* Purchasers of mobile homes who are unable to get a settlement statement should include a copy of the executed retail sales contract showing all parties’ names, property address, purchase price and date of purchase.
* Purchasers of newly constructed homes where a settlement statement is not available should include a copy of the certificate of occupancy showing the owner’s name, property address and date of the certificate.

If you were able to make a qualifying purchase before the April deadline, congratulations. With a little more work you can collect your credit now rather than wait.

The rules have changes for realtors, buyers and sellers seeking to transfer ownership of income generating properties. This includes rental properties currently under lease agreements or recently under lease agreements. This does not apply to the sale of an owner-occupied single family home or a sale of real estate in the ordinary course of the seller’s business.

Purchasers must notify the Division of Taxation at least 10 days prior to taking possession of the property. The Division will notify the purchaser within 10 days of receipt if it has a claim against the seller for taxes and the amount of the claim. If the purchaser fails to comply, then the purchaser will be personally liable for any tax owed by the seller to the state.

In order to comply with this requirement and avoid assuming the burden of unpaid taxes the buyer must:

1. Contract of Sale. The contract of sale between the parties should include a provision that both seller and purchaser are required to fully comply with the statute. This should include the provision that if there is an unpaid tax burden that funds sufficient to cover this debt be escrowed and the escrowing agent is empowered to release the appropriate funds to the State of New Jersey Division of Taxation.
2. Division of Taxation Filings (Seller). The seller must prepare and deliver to the purchaser the Asset Transfer Tax Declaration (Form TTD). The form is available here.
3. Division of Taxation Filings (Purchaser). The purchaser must prepare a Notification of Sale, Transfer or Assignment in Bulk (Form C-9600). Available here.
4. Submission to the Division of Taxation. The purchaser must then submit Form TTD, Form C-9600, and the fully executed Purchaser Agreement including price, terms and conditions thereof by registered mail to the Director at least ten days prior to the date of closing.
5. Director Notification. Within ten days following receipt of the documents, the Director will notify the purchaser/attorney/designee of any possible claim for State taxes and specify the amount to be escrowed by the purchaser at closing.
6. Closing and Final Payments. After closing, any and all amounts owed to the State will be paid out of the escrow account (or paid directly to the State).

This applies to all New Jersey real estate sale transactions, other than the sale of the seller’s personal residence.

Anyone who has sold property in the past few years knows the volume of documents required to buy and sell property. This is one more potential pitfall for the buyer. As always it is a good idea to hire legal counsel to assist you with what will likely be the biggest financial investment in your lifetime.

Question: I am the co-owner of an apartment. The other owner tells me that she has put in her will that her half of the apartment goes to someone I do not like. Can she do that? Can I exclude that person from my half of the apartment?

The answer rests in what kind of ownership interest you have. When you write of her half and your half there is a mental image of the two of you making a line with duct tape down the center of the apartment and each staying on your “half”. It does not work that way.

New Jersey Statute 46:8A-5 sheds some light on the issue:
“Any apartment may be held and owned by more than one person as joint tenants, as tenants in common, as tenants by the entirety or in any other real estate tenancy relationship recognized under the laws of this State.”

Joint Tenancy, Tenancy in Common and Tenancy by the Entirety, or any other real estate tenancy relationship recognized by the State are the options in the statute. While you may have an arrangement that is “other real estate tenancy relationship recognized…” it is doubtful and very complicated. This would be a case where a lawyer would certainly have to be retained to help you sort out the problem.

Let’s look at the other three and what they mean:

Joint Tenancy – A type of ownership of real property by two or more persons in which each owns an undivided interest in the whole. In the case of joint tenancy both persons own the whole property. Using our duct tape illustration you would not be able to keep your new roommate out of your side of the apartment, duct tape or not, because they will have an undivided interest in the whole, or right to inhabit the whole property. Joint tenancy provides equal, unlimited and free access to the property in question to all parties.

Tenancy in Common – A form of concurrent ownership of real property in which two or more persons possess the property simultaneously; it can be created by deed, will, or operation of law. Tenancy in Common is similar to Joint Tenancy with one major exception. Ownership is based on the percentage of ownership or contribution. If you and your roommate each own 50% there is not much of a difference in this situation. You will need to buy out your roommate or be bought out to fix the situation, or you may agree to sell to a third party and split the proceeds by the percentage of ownership. If you go the duct tape route, you both will have the right to cross the line whenever they choose.

Tenancy by the Entirety – A Tenancy by the Entirety allows spouses to own property together as a single legal entity. Under a tenancy by the entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety. If one spouse passes their interest in the property pass to the surviving spouse. The husband may place a duct tape line down the middle of the apartment but then a divorce attorney will be a more immediate need than a real estate barrister.

Since you and your roommates are not married you do not have a Tenancy by the Entirety. Likely you either have a Joint Tenancy that will convert to a Tenancy in Common on the death of your roommate or already have a Tenancy in Common.

With a Tenancy in Common, no duct tape barriers, no my and her halves. If you do not want to share the apartment with the new roommate then you will have to buy them out, have them buy you out or sell and split the proceeds.

Mac McKinley’s blog Boomer Opinion retells a story about the importance of reading and understanding contracts.

In his autobiography, David Lee Roth, wrote that their touring contract demanded that at each venue backstage there would be a bowl of M&Ms with all of the brown ones removed. To most that sounds like the demands of some quirky rock stars, right?

So the brown M&Ms were just a warning signal or red flag that indicated bigger issues might arise that could threaten the successful completion of the concert at that venue. It was his way of ensuring that the management and stagehands at the new venue were indeed paying attention to every detail and had read the contract thoroughly.

The truth is this is not an uncommon practice in the business world. Many attorneys consider it a sign of their craft or a worthy gamesmanship to include a “Trojan Horse” or “Jack-in-the-Box” clause to test the other party’s diligence or expertise. If the party does not discover the “Brown M&M’s” it may be a signal to the drafting attorney they can be even more aggressive in drafting contracts in their client’s favor without facing opposition.

One of the more common places where this type of abuse may occur is in the emerging market of short sale contracts. Seller’s attorneys frequently cast aside buyer’s contract offers and send their own contracts drawn without the familiar National Association of Realtors boilerplate. Realtors and clients who sign these contracts often find their signature has waived attorney review and bound them to atypical terms. Never has attorney review before signing contract been more important to protect the real estate buyer than in today’s evolving short sale market.

Effective legal counsel and contract review provides not only peace of mind at the beginning of the business relationship but saves potentially thousands of dollars in legal fees later as parties are often left to battle in the courts, seeking relief over an issue that could have been settled long before and thus salvaging businesses, reputations and relationships.

If you are contemplating entering into a contractual relationship, make sure you know that the details are in your favor because sometimes Brown M&M’s can tell you a lot about who you are dealing with. Call Long, Marmero & Associates to have on of our attorneys review your documents and give you the peace of mind you need to be successful in your pursuits.