Why and When a Surety Bond is Necessary – Part 2
Why and When a Surety Bond is Necessary In last week’s blog post I explained what a surety bond is and why, in a general sense, it is required by courts. This week I will cover situations in which a court would or might require one. Typically, when someone dies leaving a will and names an executor in that will to handle the adminstration of the estate, it is a family member or close friend. They usually do not require the executor to post a bond because they do not wish their estate to incur that cost. It means less money to the heirs. If there are no executors able or willing to serve, however, the will is admitted to probate and an “Administrator C.T.A with the Will Annexed” is appointed. This might be a child or children of the decedent who were perhaps too young to serve if the will is a very old one. Courts will generally insist on a bond being posted even if the administrators are also the heirs. That’s because the creditors must be protected. Now, clients might tell me that there are no creditors or they have been paid or the amount owed is very small. Nevertheless, the safest thing for a judge to
Why and When a Surety Bond is Necessary – Part 1
In a number of estate administration and guardianship matters in our office the need for a bond becomes an issue. Clients often don’t understand the purpose of a bond and are upset that they need to go through the process of qualifying for one and that there is a cost, which can be several thousand dollars, dependent on the size of the estate. A surety bond is used in many different industries, including the court system when a fiduciary is involved. There are three main parties to the surety bond. The principal is the person to be bonded. That would be the executor, administrator or guardian in the case of court bonds. The obligee is the person or entity requiring the bond. In our case that would be the court, which typically issues a court order detailing the requirements. The surety company is the third party. If the principal does not administer the estate correctly, the party that suffers a loss can file a claim which the surety company will pay. This could be an heir or a creditor of the estate. The surety company charges a fee or premium for the bond. The bigger the estate the higher the premium, which renews each year. Because the surety company could potentially pay
Medicaid Application Finish Line Shortened
In the past several years, especially since COVID, the Medicaid application process has become more lengthy and time consuming. More documents are now required in order to achieve Medicaid approval than ever before. The 16 page application is the easy part but I always tell people that you must have your ducks in order before filing, meaning you need to have the majority of the documents needed, ideally included with the application. A new Medicaid Communication issued by the State of New Jersey puts a 45 day limit on the time to process Medicaid applications, beginning with the date the application is received. When an application has a discrepancy or insufficient information, a Request for Information (RFI) letter will be sent detailing the documentation needed. The applicant then has 14 days to comply or the application will be denied. The State does allow for extensions of time in the case of what it terms, but does not define, as “exceptional circumstances”. The MedComm does also state that if the applicant requests additional time and continues to cooperate in good faith, an additional amount of time may be granted. A few counties have operated under a 45 day time limit for some time before this MedComm was
Increase in Medicaid Divisor
As I have written about frequently in this blog, when applying for Medicaid an applicant must establish by documentary evidence that he or she did not transfer assets in the 5 year period directly before the requested start date for benefits. Any transfers made for which product or service of equal value is not received - what are called transfers for less than fair value - carry a Medicaid penalty or waiting period for benefits. The more money transferred the longer the waiting period. Another number, however, also affects the Medicaid penalty. The Medicaid divisor is the number which a transfer is divided by to calculate the penalty. The divisor is what the State deems to be the average cost of nursing home level care statewide as a daily rate. A higher number results in a lower penalty. Because the cost of care does continue to climb, each spring the number is adjusted and this year is no different. Last month New Jersey announced the penalty has increased from $361.20 to $374.39. On a monthly basis this equates to $11,387, meaning every $11,387 transfer for less than fair value results in a 1 month Medicaid penalty. With the rate of inflation up near 9% one would think that the divisor increase
Estate Administration to Pursue Legal Claims – Part 3
In last week’s blog post I talked about a call from an attorney who needed help. He was handling a wrongful death claim on behalf of the children of a father who had died of injuries suffered in a car accident. I was able to get the son appointed administrator ad prosequendum which allowed him to sign the papers accepting the settlement on behalf of his father’s estate. As I explained last week, because that appointment was for a limited purpose we then had to file an application for the son to be appointed general administrator. This time the judge required a bond for the protection of the heirs and creditors. Dad had been a Medicaid recipient living in a nursing home at the time of his death so administering the estate was relatively easy, however, the one potential creditor was the State of New Jersey. Under Medicaid estate recovery laws, the State can recoup from the estate benefits it paid out during the recipient’s lifetime. No one could recall, however, receiving the estate recovery questionnaire that is mailed out after death and the attorney did not recall advising the State of the claim. Additionally, it was now six years after death. The length of time it took to
Estate Administration to Pursue Legal Claims – Part 2
In last week’s post I referred to a recent case in our office in which an administrator ad prosequendum was needed with respect to an estate whose only potential asset was a legal claim for damages resulting from a wrongful death. Not knowing how much might be recovered and there being no other estate asset, appointing an administrator for the limited purpose of pursuing the claim is the best option. So what is the process and who can be appointed administrator ad prosequendum? New Jersey court rules establish that the surrogate’s court of the county where the intestate (person who died without a will) resided or, if not a New Jersey resident, the surrogate’s court of the county where the accident resulting in the death occurred grants letters of administration ad prosequendum. The persons entitled serve are those closest in relation to the intestate. First right would be the surviving spouse or domestic partner, if any, and then the remaining heirs or some of them. In our case there was no surviving spouse or partner but there were four children. Since each would have equal right to serve, anyone not wishing to serve needs to sign a renunciation. Alternatively, an application by the person wanting to serve must