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Selling your share in a closely held business? What to know, Part II.

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PART II – LITIGATION UNDER NEW JERSEY’S SHAREHOLDER STATUTE

In a public company, as discussed in Part I, a shareholder can quickly find a buyer for his or her shares at a price already set by the stock market. However, in small companies, there is no such marketplace. One result is that a partner in small companies may find him or herself in an acrimonious, or otherwise adverse, relationship with their business partners and desire to leave the company. In a public company these partners, or shareholders, can simply sell their interest at fair market value and walk away. Small business partners, however, do not have the luxury of simply selling and walking. Namely, they must reach an internal agreement with their partner(s), which requires each party to balance concerns such as, how to successfully separate, keep the business intact, and value company shares.

Where a business contract does not offer a solution to a disagreement, or other issue, litigation through New Jersey’s Shareholder Statute may be the only option available to an aggrieved shareholder. The State of New Jersey recognizes the unique obstacles faced by closely held businesses and, in part, enacted N.J.S.A. 14A:12-7 (“Shareholder Statute”) in response. The Shareholder Statute provides at least four avenues of recourse for an aggrieved shareholder in a closely held business. Specifically, the Shareholder Statute provides:

(1) The Superior Court, in an action brought under this section, [1] may appoint a custodian, [2] appoint a provisional director, [3] order a sale of the corporation’s stock as provided below, [4] or enter a judgment dissolving the corporation, upon proof that

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(c) In the case of a corporation having 25 or less shareholders, the directors or those in control have acted fraudulently or illegally, mismanaged the corporation, or abused their authority as officers or directors or have acted oppressively or unfairly toward one or more minority shareholders in their capacities as shareholders, directors, officers, or employees.

N.J.S.A. 14A:12-7.

Each of the above are statutorily provided avenues to help an aggrieved shareholder in a closely held corporation. However, each provided avenue is not perfect and must be specifically tailored to each corporation and shareholder’s unique situation.

When faced with a partnership dispute likely to lead to litigation, it is important to consult with an attorney specifically trained in shareholder litigation. These attorneys can offer counsel on where to file the shareholder action, the type of legal filing, under what statute and subsection to seek relief, and the type of relief a shareholder should seek. New Jersey state law and its associated legal precedents offer strong protections to aggrieved shareholders. Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A. offers a team of lawyers specifically trained to counsel individuals and corporations in shareholder matters.


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Selling a closely held business to your business partner? What to Know!

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PART I – THE BUYOUT

Small businesses with a limited number of shareholders – sometimes referred to as closely held businesses – face an obstacle that larger, publicly traded companies do not: liquidity. Liquidity is simply a term used to describe the degree an interest, or share, in a company can be readily bought or sold. For example, in the context of a small company, it is often that the only person(s) interested in selling (or purchasing) shares in the company are the members of the company themselves. In other words, in a company owned by two individuals, each with a 50% interest in the company, it is likely that the only market for those shares is the other 50% shareholder. Compare this relationship to a company listed on a stock exchange and you can see that small companies have a liquidity problem. That is, owners of these companies do not have the ability to easily buy or sell shares in their company without the co-operation of their partner(s).[1]

In a working business relationship, where partners co-operate with one another, the partners may reach an agreement on the purchase price of the selling partner’s shares. For example, in a 50/50 partnership where one partner wishes to retire, the partners may employ the services of an accountant to evaluate the company and determine its fair value, or price. In turn, this price can be used to determine the purchase price of the selling partner’s shares. Once the price of the shares is agreed upon, the parties should employ an attorney to draft a Buyout Agreement, which will contain the price figures as well as other essential terms.

It is vitally important to reduce the agreement of the parties to writing and include the appropriate, material provisions. Even more important is to create a contract provision at the outset of the business relationship that covers share repurchasing, sale, or buyouts so that an issue does not arise once one partner, for example, announces his or her retirement. No matter the relationship between the parties, it is not recommended that an individual attempt to author a Buyout Agreement or related provision without the assistance of trained legal counsel.

With that said, partners may not always agree with each other on material terms including price and valuation, in effect, making a Buyout Agreement difficult or impossible to reach. In that case, if a buyout provision does not exist in the company’s corporate documents to contractually bind the partners, a partner might ask what his or her legal options are to protect themselves or the corporation. Fortunately, New Jersey state law offers protections for the above issues, and others, through its Shareholder Statute (N.J.S.A. 14A:12-7).

[1] In some situations, a company may already have a buyout provision in place through its corporate documents, such as its operating agreement or bylaws.


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Could Your Property be the Subject of a Quiet Title Action?

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Quiet Title Actions arise when ownership of a piece of property is in question.  It usually occurs from a mistake in a survey description.  Prior to the Twentieth Century, Deeds were typically handwritten and the property was described in what was called a “chain and link” description.  The property would be described as such: “. . . along the property line of Joe Smith to the large rock, through the middle of the stream that borders the property owned by Bob Jones to the large oak tree at the property owned by John Doe and along the split rail fence to Main Street . . .”.

The advent of modern surveying equipment in the early to mid-Twentieth Century allowed surveyors to more precisely measure the three-dimension position of points and the distances of angles between them.  As a result, in almost every property sale, the survey is accurate and the property properly described.

However, issues can arise when there is an “overlap” or a “gore”.  An overlap is when each adjourning owner believes that their property ends in a particular place but the descriptions on their deeds show that the property ends elsewhere, typically, on the neighboring property.  A gore arises when there is a strip of property which is not described and therefore is never adequately conveyed leaving that strip of property in “no man’s land”.  When these circumstances exist, an action can be brought in the Superior Court to ”Quiet Title”.  The property owner asks that the Court issue an order determining the proper boundaries of the property.  Often these proceedings are of an administrative nature, but sometimes they are contested.  Without the Quiet Title Action and the judgment of the Court, the property will forever remain in limbo.

An important protection against title issues is title insurance, which protects buyers from survey errors and preexisting judgments, liens and encumbrances on your property. Title insurance companies have a financial incentive to make sure the description of a property is accurate and all preexisting liens or judgments are addressed prior to purchase.

If you have a title issue affecting your property, we can help. Contact one of our real estate attorneys today for more information.


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Why yelling “fore” in golf is more than a simple matter of golfing courtesy.

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For golfers, the warmer weather and the longer days signal that spring has arrived and the new golfing season has begun.  Whether you are a scratch golfer or a beginner to the game, undoubtedly at some point during the season you will find yourself hitting a slice or pulling a hook and yelling “fore” to alert nearby golfers of a potential golf ball coming their way.  While yelling “fore” is certainly part of golfing etiquette, when is a golfer required to yell “fore” to warn unsuspecting golfers of an errant shot?

The New Jersey Supreme Court addressed this very question in Carrigan v. Roussell, 177 N.J. Super 272 (App. Div. 1981).  In Carrigan, a golfer was taking a lesson in a practice area that was located to the left of the course’s first tee.  On the first tee was an experienced golfer who hit a drive that veered left in the direction of the practice area.  The golfer and his playing partners immediately yelled “fore”.  Despite the forewarning, the hooked tee shot struck the practicing golfer directly in the forehead.  Consequently, the injured golfer sued the errant driver claiming that the golfer failed to give her advance warning of the tee shot.

The Court stated that a golfer does not have an advanced duty to yell “fore” if a golfer is outside a “zone or ambit of danger.”  In other words, a golfer has no duty to yell “fore” or provide a similar warning before hitting a golf shot where no person is directly in the line of play.  However, when a golfer sees that their shot is deviating from its intended path, the golfer is required to provide a warning, such as yelling “fore”.  In Carrigan, since the golfer had yelled “fore” loud enough for the injured golfer to hear the warning, the Court did not find that the errant driver breached any duty owed to the Plaintiff.

There are two important lessons for golfers to take away from the Carrigan case.  First, if you see a golfer in an area in which you are likely to hit your drive, yell “fore” prior to striking your drive or iron shot.  Second, if you do hit an errant drive that is heading in the direction of a neighboring hole, yell “fore” upon realizing the error.  It is important to make sure that your warning is loud enough to be heard by the unsuspecting golfer.

Yelling “fore” is not just a matter of common golfing courtesy.   Rather, yelling “fore” is about protecting yourself from personal injury liability.  So when you hit your next slice or hook (as every golfer will), before slamming your club or cursing the wind, yell “fore” and yell it loud.


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Temporary Restraints and Irreparable Harm in State of Washington v. Donald J. Trump

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On February 10, 2017, in a per curiam decision, the Ninth Circuit denied the Federal Government’s emergency motion for a stay pending appeal of a temporary restraining order (“TRO”). Procedurally, in State of Washington, et al., v. Donald J. Trump, et al., No. C17-0141JLR (W.D. Wash. 2017) (“State of Washington v. Trump”) Judge Robart of the United States District Court in Seattle, Washington issued a TRO.  The TRO temporarily stayed (i.e., stopped) President Donald J. Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorists Entry into the United States” (“Executive Order”). Most recently, the Federal Government asked the Ninth Circuit to undo Judge Robart’s decision, which the Court denied. Importantly, as a result of legal procedure, neither court has ruled on the constitutionality of the Executive Order. Instead, the courts have been tasked with analyzing the underlying legal elements a moving party must demonstrate when seeking a TRO.

While Judge Robart and the Ninth Circuit’s decisions were issued at the federal level, the legal underpinnings behind a TRO at the state court level are nearly identical. For example, both decisions rested on the same principals of law that apply in New Jersey Chancery Courts. New Jersey Chancery Courts are guided by the New Jersey Supreme Court’s decision in Crowe v. De Gioia, 90 N.J. 126. In Crowe v. De Gioia, the New Jersey Supreme Court found that to issue a temporary injunction (e.g., a stay as in State of Washington v. Trump), a moving party must demonstrate four criteria: (1) irreparable harm; (2) likelihood of success on the merits; (3) the law is well-settled; and (4) the balancing of the equities weighs in favor of the issuance of the injunctive relief.

Comparatively, the United States Supreme Court in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) held that to issue a temporary restraining order a moving party must demonstrate (1) irreparable harm; (2) likelihood of success on the merits; (3) the balancing of the equities weighs in favor of the issuance of injunctive relief; and (4) the injunction is in the public interest. Let’s look just at the irreparable harm element.

At the District Court level, it was the State of Washington’s burden to demonstrate irreparable harm to the State. Under the “irreparable harm” prong of the Winter test, Judge Robart found:

The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and mission of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing.

State of Washington v. Trump, No. 17-CV-00141-JLR (W.D. Wash. 2017), pp. 4-5.

Before the appeals court, it was the Federal Government’s burden to demonstrate irreparable harm. One way of looking at this burden is that the Federal Government had to show that if the Ninth Circuit did not stay Judge Robart’s TRO then there would be irreparable harm to the country. On this element the Ninth Circuit held:

We therefore conclude that the States have alleged harm to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.

State of Washington v. Trump, No. 17-35105 (9th Cir. 2017), p. 12.

In other words, the Ninth Circuit found that there will not be irreparable harm by failing to temporarily stay Judge Robart’s TRO.

Next, Judge Robart will hear the State of Washington’s application for a preliminary injunction. Notably, while a TRO is issued only for the time between the date of the TRO and the preliminary injunction hearing, a preliminary injunction lasts until a trial can be held which would decide the merits of the case. The eventual results of the case will determine if the injunction will be permanent. Legally, however, the criteria for a preliminary injunction and a TRO are the same. Accordingly, on the return date of State of Washington v. Trump, Judge Robart will again be tasked with ruling on the propriety of the Executive Order through the same analysis discussed above. Going forward, look for Judge Robart to expand on his findings regarding “irreparable harm.”

About the author: Matthew M. Nicodemo, Esq. is an attorney with Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A. in Montvale, New Jersey. Matthew is a former Chancery Court law clerk and focuses his practice on commercial and estate litigation, business law, and real estate.

 


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Prince Didn’t Have a Will, You Should!

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Last Will and TestamentOn April 22, 2016, the Music Icon Prince died. Soon after, the Media reported that sources believed Prince had died without a Will. In addition, he was not married at the time of his death and there are no known children. Some individuals mistakenly believe that his Estate would then go to the State of Minnesota. That only happens when there are no heirs at law of an individual. An Heir at Law, according to Black’s Law Dictionary, is “he who, after his ancestor dies intestate, (without a Will) has a right to all lands, tenements, and hereditaments which belonged to him or of which he was seized.” In other words, all of your possessions. The newspaper has indicated that Prince died with one full sibling named Tyka Nelson and several half siblings. We then know that the Estate will not escheat to the State (pass to the State because there are no heirs) but will in fact go to his full sibling and half siblings. If he had died in New Jersey, his Estate would be distributed equally to his sister of whole blood and siblings of half-blood. Minnesota law is presumably similar.

However, by not having prepared a Will there are two problems. First, there is no Executor to garner the assets and pay the liabilities. Second, there was no estate planning done to minimize Federal and/or Estate Tax Returns. The second problem is now irreversible and whatever the tax implications are – they are. The first issue is more problematic.

As set forth by the Media, Tyka Nelson has requested that a Minnesota Court appoint a Trust Company to temporarily oversee his multi-million dollar Estate. With the preparation of a Will, Prince himself would have appointed a person or persons to do this, someone who he either trusted, like a family member or friend, or someone who had an expertise in this area. Presumably, the Trust Company will have no issue handling the Estate.  As it stands, Prince’s Estate will be distributed to his full and half-siblings whether he liked them or not.

Estate planning would have allowed Prince to determine for himself how his money should be distributed upon his death.   Beyond financial considerations, there are other important reasons to have a Will.  If your children are under the age of eighteen (18), you will appoint a Guardian so that your family will not be fighting over who will, or who will not, care for your children. You will also determine the name of the Trustee who will handle the money of your children for their benefit until they reach a certain age, the one in which you think they will be mature enough to handle their money, like 26, 30 or even older. It all depends on your beliefs and the maturity of your children. Lastly, you will determine if your Estate will be distributed equally amongst your children or not. If you are not married, you certainly want to prepare a Will to make sure that the Estate goes to your designees whether you have children or not.

Drafting a Will is often not complicated and can be done by an attorney in a very short period of time. See your attorney today. I am sure Prince never expected his untimely death. Don’t take a chance.

About the author: John A. Conte, Jr. is a Partner with Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A. in Montvale, New Jersey.  Mr. Conte concentrates his practice in business law, commercial litigation, real estate and land use law and estate planning


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Consulting in New Jersey: What you need to know?

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1099 picConsulting or freelancing is becoming an increasingly popular way to earn a living.  Unlike salaried, W-2 employees, consultants or freelancers have greater control over when they work, where they work and who they work for.  If you are considering either working as a freelancer or as a consultant either on a full-time or on part-time basis, there are several things to consider:

Corporate Entity

If you are engaged as a freelancer or consultant, it is a good idea to operate under the name of a corporate entity, such as a Limited Liability Company (“LLC”).   By freelancing or consulting under the name of a LLC, you have the security and legal protection to protect your personal assets from any lawsuit filed against you in the course of your work as a freelancer or consultant.  Forming a corporate entity, such as a LLC, is a relatively straightforward and inexpensive process in New Jersey.  For more information on forming an LLC in New Jersey, check out the blog article about Starting a Business in New Jersey.

Tax Treatment

One of the biggest differences between being a W-2 employee at a business and freelancing or consulting is taxes.  As a freelancer or consultant, you are responsible for paying taxes yourself instead of having the taxes withheld by your employer.  In addition, if you expect to owe the IRS more than $1,000 when you pay your annual return, you must pay estimated taxes on your income on a quarterly basis.  If you are considering freelancing or consulting, you should speak with a tax professional to understand your tax obligations.

At the end of the year, you will receive a 1099 from any individual or business that you have performed work for and earned income as a freelancer or consultant.  The 1099 is a receipt evidencing the amount of money you were paid and should be included when filing your taxes.

Contract Provisions

When freelancing or consulting, you may be asked to sign a contractor with the individual or business requesting your services. Read all contract documents carefully and retain an attorney if you do not understand any provision or term of the contract.  In the contract, freelancers or contractors should be on the look-out for several common provisions addressing non-disclosure of confidential information and the ownership of intellectual property created by the freelancer or consultant.

Absent an agreement, any intellectual property created by the freelancer or consultant remains with the freelancer or consultant.  However, many companies will require that such property rights be assigned to the individual or business in consideration of being paid for the services provided.  Similarly, freelancers and consultants have no obligation to protect confidential information unless obligated to under contract.  For this reason, many individuals or businesses retaining the services of freelancers or consultants will require the freelancer or consultant to sign a non-disclosure agreement or confidentiality agreement before any work is performed.

Statement of Work

Before beginning work as a freelancer or consultant, it is good idea to have a Statement of Work for the project being undertaken if the scope of the project is not defined in the Contract between the individual/business and the freelancer/consultant. The Statement of Work is intended to define what work is expected from the freelancer or consultant and when it is expected to be delivered.  The Statement of Work provides an operational guide to the relationship between the Parties.

Freelancing or consulting can be a profitable and flexible way for individuals to earn a living.  If you are considering working as a freelancer or consultant, be sure to speak with an attorney and/or tax professional to make sure you have the documents in place to successfully and securely operate.

About the author: Andrew P. Bolson, Esq. is an attorney with Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A. in Montvale, New Jersey. Andrew’s practice focuses on commercial and estate litigation, business law, real estate law, estate planning and privacy and Internet law.


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Selling Real Estate in New Jersey: 10 Things to Consider

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residential houseIn a previous blog post, I wrote about 10 things to consider when buying residential real estate in New Jersey. For this post, I examine what to consider when selling residential real estate. Both buying and selling residential real estate can be a stressful process. However, by having an understanding of the process, at least Sellers will be familiar with what to expect. Here are 10 things to consider when selling residential real estate in New Jersey:Read More


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Dispelling Common New Jersey Elder Law Myths

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Myth #1: All of My Money Needs to Be Spent Down on the Nursing Home or Medical Expenses Before I Can Qualify for Medicaid
The type of Medicaid that pays for long term care in the nursing home, assisted living facility, or in the home, is now known as Managed Long Term Services and Supports or MLTSS. The MLTSS program has very specific resource limits. Resources in excess of these limits have to be “spent down” in order for individuals applying for Medicaid to be deemed financially eligible for benefits. Contrary to popular belief, assets do not need to be spent down on nursing home care or medical care before an applicant can qualify for Medicaid. Rather, the assets to be “spent down” can be preserved for the applicant’s spouse or family; spent for the benefit of the applicant’s spouse; or spent for the benefit of the applicant.

The resource limit for a single person in New Jersey is $2,000.00. This means that an unmarried individual applying for Medicaid benefits in a nursing home, an assisted living facility, or in their own home, can have $2,000.00 worth of countable resources, or less, in their name, and be financially eligible for Medicaid.

The resource limit for a married individual is more complicated. The ill spouse, known as the “Institutionalized spouse” is still subject to the $2,000.00 resource limit. The well spouse, known as the “Community Spouse” is entitled to a “Community Spouse Resource Allowance” (“CSRA”). In 2016, the Community Spouse of couples whose combined resources are in excess of $238,440.00, is permitted to keep the maximum CSRA of $119,220.00. This amount excludes the marital home which is an excludable resource, and other excludable resources such as one car. The remaining assets have to be spent down.

If the couple’s combined resources are less than $238,440.00, the Community Spouse is only permitted to keep one-half (½) of the couple’s combined assets (excluding the marital home and one car) as of the “snapshot date.” The snapshot date is the first day of the first month of continuous institutionalization. Continuous institutionalization begins on the first day of the first month in which the institutionalized spouse goes to the hospital, then the nursing home and never goes home, or goes to the nursing home and never comes home. For example, if the institutionalized spouse goes to the hospital on January 11, 2016, then to the nursing home on January 15, 2016, and remains in the nursing home thereafter, the couple’s snapshot date is January 1, 2016. If that couple’s combined assets on January 1, 2016 are $100,000.00, the Community Spouse’s CSRA is $50,000.00. The Institutionalized Spouse would get to keep $2,000.00, and the remaining $48,000.00 would be spent down.

The minimum CSRA a Community Spouse would be entitled to in 2016 is $23,844.00. What that means is that couples whose combined assets on the snapshot date are below $47,688.00 would only have to spend down to $23,844.00 plus the $2,000.00 in the name of the Institutionalized Spouse.

What does it mean when we say that assets in excess of these resource limits must be “spent down?” Spend down is usually achieved by paying off debts; prepaying certain permissible expenses; making repairs and upgrades to the Community Spouse’s home; and purchasing exempt assets such as irrevocable, pre-paid funeral trust arrangements, a new vehicle for the Community Spouse, and where appropriate, Medicaid-qualifying annuity products that can allow both the Community Spouse or a single Applicant to preserve their assets. In some cases, it can mean paying nursing home or medical expenses.

If you or your spouse require an institutional level of care, you should speak to an experienced Elder Law Attorney to ensure that your assets are spent down in a manner consistent with the Medicaid rules and your needs.

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The Achieving a Better Life Experience (“ABLE”) Act is Law

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Beth Barnhard

Beth L. Barnhard, CELA

Governor Chris Christie signed the ABLE Act on Monday, January 11, 2016. The program is expected to be up and running in New Jersey in October of 2016.  Certified Elder Law Attorney (CELA), Beth Barnhard, answers some of the most Frequently Asked Questions about ABLE below.

What are ABLE Accounts?

Under the ABLE Act, families would be able to set aside funds into a new kind of tax-free savings accounts, for individuals with disabilities.

The funds in an ABLE account can be withdrawn tax-free, meaning without being treated as taxable to the beneficiary, as long as they are being used to cover the costs associated with health care, employment, housing, transportation, and education. Funds in an ABLE Account would be used to supplement but not to supplant any public benefits received by the disabled individual, such as Medicaid, Social Security, SNAP, and Section 8 Housing Vouchers.

The purpose of the ABLE Account is to have an extra source of funds with which to enhance the quality of life of individuals with disabilities and help to offset the costs associated with every day life, and community inclusion.

Are ABLE Accounts Available in New Jersey Yet?

No.

Who Can Have an ABLE Account?

An ABLE Account can be opened for an any individual who:

1. Has a “medically determined physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months or result in death” or who is blind; and

2. Became disabled prior to age 26.

How Do you Prove Disability:

You need to obtain a Certification from a Physician which states:

1. Diagnosis;

2. That the diagnosis meets the definition of disability; and

3. That the disability occurred prior to age 26.

You will not need to provide the physician certification to the ABLE Trust Administrator or the IRS. It will be acceptable to provide a Certification signed by the beneficiary, or the beneficiary’s Guardian or Agent under a valid Power of Attorney, signed under penalty of perjury, stating that:

1. The beneficiary has obtained a signed Certification from a physician meeting all necessary criteria; and

2. That the beneficiary will provide the physician Certification to the State or to the IRS upon request.

How Do You Prove That Disability Occurred Prior to Age 26?

If you already receive Supplemental Security Income (“SSI”) or Social Security Disability (“SSD”):

• If you started receiving SSI or SSD before age 26, you must provide your initial award letter.

• If you are on SSI or SSD but started receiving benefits after age 26, you may need to provide an Affidavit signed by the beneficiary’s parent or guardian regarding their diagnosis and functional limitations prior to age 26, and/or a copy of their diagnosis signed by the treating physician

If you do not already receive SSI or SSD:

• If you do not receive SSI or SSD, you must prove that you meet the disability standard of “medically determined physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” To do so, you want to make sure that you show that you meet the requirements listed by the Social Security Administration.

Who Can Open the Account?

An ABLE Account can be opened by the beneficiary, parent, legal guardian, or an Agent under a valid Power of an Attorney.

How Many ABLE Accounts Can a Beneficiary Have?

A person can only have one (1) ABLE Account at a time. If more than one ABLE account is created, only the first one will qualify for treatment as an ABLE account.

What Can Go Into an ABLE Account?

ABLE Accounts can only be funded with cash. Only after-tax dollars can be used.

What is the Maximum Yearly Contribution to An ABLE Account?

The maximum yearly contribution to a beneficiary’s ABLE account is the same as the annual tax-free gift exclusion, which for 2016 is $14,000.00. This is not a per-person limitation, this is the maximum amount the account can receive per year.

This is not the maximum amount each relative can contribute to the beneficiary’s account per year, this is the maximum amount the account can receive for the entire year.

Any money contributed in excess of the $14,000.00 maximum must be returned to the contributor.

Who Can Contribute to the $14,000.00 Per Year Maximum?

Anyone can contribute, including parents, relatives, the estate of a deceased person, and the beneficiary.

What is the Maximum Amount of Money that an ABLE Account Can Hold?

ABLE Accounts are restricted to the State maximum contribution for a 529 Plan account. In New Jersey, the maximum amount is $305,000.00.

How Do ABLE Accounts Affect Public Benefits like SSI and Medicaid?

Individuals who have ABLE accounts will remain eligible for SSI until the account reaches $100,000.00. At that time, monthly SSI benefits will be suspended. If the account is depleted below the $100,000.00 threshold, monthly SSI benefits will resume without the need to reapply for SSI.

Medicaid eligibility is not affected by an ABLE account regardless of the amount of money it contains.

However, ABLE accounts are “Medicaid Payback” accounts. This means that when the beneficiary dies or is considered to no longer be “disabled” within the statutory definition, any funds remaining in the account are used to pay back the State of New Jersey for funds paid by Medicaid on behalf of the beneficiary after the ABLE account was created. Any funds remaining will pass via beneficiary designation on the account.

What Happens to the ABLE Account if the Beneficiary Loses Their Disability Status?

The account will continue to be an ABLE account and will not be deemed to have been distributed.

However, beginning the first taxable year after the beneficiary is no longer eligible for the ABLE program, and for each taxable year thereafter, the account cannot accept any additional contributions.

Further, any withdrawals made from the account will not be deemed “qualified withdrawals” for income tax purposes, meaning that they will be taxed as income to the beneficiary.

If the beneficiary regains their disability status in the future, the account can once again accept contributions and can make qualified, tax-free distributions to the beneficiary.

What Kinds of Distributions Can an ABLE Account Make?

Distributions from ABLE accounts are made for “qualified disability expenses”or “QDEs.”

Under New Jersey’s proposed bill, QDEs “shall be related to the beneficiary’s disability and shall supplement, but not supplant, impair or diminish, any benefits or assistance any Federal, State, or other governmental entity for which the beneficiary may otherwise be eligible or which the beneficiary may be receiving.”

QDEs are not taxed as income under state or federal law, and are protected from creditors.

Some examples of QDEs are:

Health Care, Prevention & Wellness
• Health insurance premiums
• Mental health, medical, dental, and vision expenses not covered by Medicaid
• Rehabilitation
• Durable medical equipment
• Therapy
• Respite Care
• Nutrition
• Adaptive equipment/assistive technology
• Communication services/devices
• Personal assistance

Employment Support
• Expenses related to obtaining and maintaining employment
• Job-related training/coaching
• Adaptive equipment/assistive technology

Housing ** distributions will affect SSI payments dollar for dollar
• Payments related to support of primary residence

Transportation
• Mass transit costs
• Purchase and maintenance of personal vehicle
• Modification of personal vehicle

Education
• Tuition
• Books
• Supplies
• Tutors

Miscellaneous
• Irrevocable pre-paid burial expenses
• Legal fees
• Financial/Accounting
• Personal supports

What Happens if Distributions are Made that Are not for QDEs?

Distributions will be taxed as income to the beneficiary and will be hit with an additional 10% penalty.

Who Can Make Withdrawals/Distributions from an ABLE Account?

It appears that distributions in New Jersey ABLE accounts can be made by a guardian or Agent under a valid Power of Attorney.

Can the Beneficiary of an ABLE Account be Changed?

Yes, provided that the new designated beneficiary meets the eligibility criteria.

Additionally, part or all of a beneficiary’s ABLE account can be rolled over to an eligible member of the beneficiary’s family provided that:

1. Any funds withdrawn are deposited to the eligible family member’s account within 60 days of withdrawal; and

2. No more than 1 rollover has been made to that eligible family member’s account within the 12 month period immediately prior to the rollover.

Can an ABLE Account be Move to Another State?

Yes, provided that the beneficiary continues to have only 1 ABLE account in his or her name, and the State receiving the account has an ABLE program.

If a beneficiary establishes an ABLE account in New Jersey and moves, the account can stay in New Jersey.

Who Administers ABLE Accounts?

The proposed legislation creates an “ABLE Trust” that will be administered by the Division of Disability Services as Trustee. The Division of Investments, part of the New Jersey Treasury, will invest the ABLE Trust.

How Are ABLE Accounts Different Than Special Needs Trusts?

Advantages of ABLE of Special Needs Trust:

• Simplicity and Cost: although you should probably discuss with a lawyer which is right for you and your family, if it is determined that an ABLE account is a better fit, you will not need a lawyer to create the ABLE account for you.

• Tax Treatment: Any growth on investments inside the ABLE account gets withdrawn tax free if it is withdrawn for a QDE.
Disadvantages of ABLE as compared to Special Needs Trust:

• Limitation on Contribution: Maximum of $14,000.00 per year contribution to ABLE, no limit on contribution to Special Needs Trust. Because there is a limit on the amount of contribution, people would not want to set up an ABLE account to catch the proceeds from a law suit, or as a pour over for distribution from a Will.

• Limitation on Exempt Asset for SSI: SSI is suspended at $100,000.00 for ABLE. Entire amount of Special Needs Trust is exempt for SSI without suspension of benefits.

• Medicaid Payback: Only First Party Special Needs Trusts (that is, Trust funded with the beneficiary’s own money) are required to have a Medicaid Payback. Third Party Special Needs Trusts (Trusts funded with someone else’s money) does not require a Payback in most situations. Thus, ABLE’s Payback requirement makes it undesireable for third parties looking to give money to individuals with disabilities.

• Age limitation: ABLE must be established for individual who became disabled prior to age 26. Special Needs Trusts do not have this limitation.

About the Author: Beth L. Barnhard is an attorney with Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A. in Montvale, New Jersey.  A Certified Elder Law Attorney as recognized by the National Elder Law Foundation (NELF), Beth concentrates her practice on representing elder law clients with Medicaid applications and administrative Fair Hearings, asset preservation planning, guardianships, protective arrangements, estate planning, estate administration, and estate litigation.


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