Wills, Estate Planning & Probate Seminar Sponsored by Jewish Family Services May 12, 2015

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Wills, Estate Planning & Probate Seminar

 Sponsored by Jewish Family Services

May 12, 2015 at 11am    

Held at Highland Park Conservative Temple - 
Congregation Anshe Emeth

201 South Third Avenue, Highland Park, NJ 08904

WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ

                (Author- Answers to Questions About Probate)

      The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills    

2. 2015 changes in Federal Estate and Gift Tax 

3. NJ Inheritance taxes on estates over $675,000

4. Power of Attorney               

5.  Living Will                                  

6.  Administering the Estate/ Probate/Surrogate    

7. Questions and Answer 

             Open to the public.      Call 732-306-0218 for info

      COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

https://www.facebook.com/events/962166290467767/

Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

SECTION 3-901. SUCCESSORS’ RIGHTS IF NO ADMINISTRATION.

SECTION 3-901. SUCCESSORS’ RIGHTS IF NO ADMINISTRATION.

In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption or intestacy may establish title thereto by proof of the decedent’s ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.

SECTION 3-101. DEVOLUTION OF ESTATE AT DEATH; RESTRICTIONS.

SECTION 3-101. DEVOLUTION OF ESTATE AT DEATH; RESTRICTIONS.

The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this Code to facilitate the prompt settlement of estates. Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.

SECTION 1-102. PURPOSES; RULE OF CONSTRUCTION.

SECTION 1-102. PURPOSES; RULE OF CONSTRUCTION.

(a) This Code shall be liberally construed and applied to promote its underlying purposes and policies.

(b) The underlying purposes and policies of this Code are:

(1) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons;

(2) to discover and make effective the intent of a decedent in the distribution of his property;

(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;

Subpart 2. Uniform Probate Code Succession Without Administration PREFATORY NOTE

Subpart 2.  Uniform Probate Code Succession Without Administration PREFATORY NOTE
This subpart to the Uniform Probate Code is an alternative to other methods of administering a decedent’s estate. The Uniform Probate Code otherwise provides procedures for informal administration, formal administration and supervised administration. This subpart adds

another alternative to the system of flexible administration provided by the Uniform Probate Code and permits the heirs of an intestate or residuary devisees of a testator to accept the estate assets without administration by assuming responsibility for discharging those obligations that normally would be discharged by the personal representative.
The concept of succession without administration is drawn from the civil law and is a variation of the method which is followed largely on the Continent in Europe, in Louisiana and in Quebec.
This subpart contains cross-references to the procedures in the Uniform Probate Code and particularly implements the policies and concepts reflected in Sections 1-102, 3-101 and 3-901.  

SECTION 3-311 Uniform Probate Code. INFORMAL APPOINTMENT UNAVAILABLE IN CERTAIN CASES.

SECTION 3-311 Uniform Probate Code. INFORMAL APPOINTMENT UNAVAILABLE IN CERTAIN CASES. If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and which is not filed for probate in this court, the Registrar shall decline the application. 

SECTION 3-310 Uniform Probate Code. INFORMAL APPOINTMENT PROCEEDINGS; NOTICE REQUIREMENTS.

SECTION 3-310 Uniform Probate Code. INFORMAL APPOINTMENT PROCEEDINGS; NOTICE REQUIREMENTS. The moving party must give notice as described by Section 1-401 of his intention to seek an appointment informally: (i) to any person demanding it pursuant to Section 3-204; and (ii) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required. 

SECTION 3-309 . INFORMAL APPOINTMENT PROCEEDINGS; REGISTRAR NOT SATISFIED.

SECTION 3-309  . INFORMAL APPOINTMENT PROCEEDINGS; REGISTRAR NOT SATISFIED. If the Registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of Sections 3-307 and 3-308, or for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
Comment
Authority to decline an application for appointment is conferred on the Registrar. Appointment of a personal representative confers broad powers over the assets of a decedent’s estate. The process of declining a requested appointment for unclassified reasons should be one which a registrar can use quickly and informally. 

SECTION 3-308 Uniform Probate Code. INFORMAL APPOINTMENT PROCEEDINGS; PROOF AND FINDINGS REQUIRED.

SECTION 3-308 Uniform Probate Code. INFORMAL APPOINTMENT PROCEEDINGS; PROOF AND FINDINGS REQUIRED.
(a) In informal appointment proceedings, the Registrar must determine whether: (1) the application for informal appointment of a personal representative is

complete;

(2) the applicant has made oath or affirmation that the statements contained in the

application are true to the best of his knowledge and belief;

(3) the applicant appears from the application to be an interested person as
defined in Section 1-201(23);
(4) on the basis of the statements in the application, venue is proper;
(5) any will to which the requested appointment relates has been formally or
informally probated; but this requirement does not apply to the appointment of a special administrator;
(6) any notice required by Section 3-204 has been given;
(7) from the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.
(b) Unless Section 3-612 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in Section 3-610(c) has been appointed in this or another [county] of this state, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this state and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.
Comment
Sections 3-614 and 3-615 make it clear that a special administrator may be appointed to conserve the estate during any period of delay in probate of a will. Even though the will has not been approved, Section 3-614 gives priority for appointment as special administrator to the person nominated by the will which has been offered for probate. Section 3-203 governs priorities for appointment. Under it, one or more of the same class may receive priority through agreement of the others.
The last sentence of the section is designed to prevent informal appointment of a personal representative in this state when a personal representative has been previously appointed at the decedent’s domicile. Sections 4-204 and 4-205 may make local appointment unnecessary.

Appointment in formal proceedings is possible, however. 

SECTION 3-307 Uniform Probate Code. INFORMAL APPOINTMENT PROCEEDINGS; DELAY IN ORDER; DUTY OF REGISTRAR; EFFECT OF APPOINTMENT.

SECTION 3-307 Uniform Probate Code. INFORMAL APPOINTMENT PROCEEDINGS; DELAY IN ORDER; DUTY OF REGISTRAR; EFFECT OF APPOINTMENT.
(a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in Section 3-614, if at least 120 hours have elapsed since the decedent’s death, the Registrar, after making the findings required by Section 3-308, shall appoint the applicant subject to qualification and acceptance; provided, that if the decedent was a non-resident, the Registrar shall delay the order of appointment until 30 days have elapsed since death unless the personal representative appointed at the decedent’s domicile is the applicant, or unless the decedent’s will directs that his estate be subject to the laws of this state.
(b) The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in Sections 3-608 through 3- 612, but is not subject to retroactive vacation.
Comment
Section 3-703 describes the duty of a personal representative and the protection available to one who acts under letters issued in informal proceedings. The provision requiring a delay of 30 days from death before appointment of a personal representative for a non-resident decedent is new. It is designed to permit the first appointment to be at the decedent’s domicile. See Section 3-203. 

SECTION 3-306 Uniform Probate Code . INFORMAL PROBATE; NOTICE REQUIREMENTS.

SECTION 3-306 Uniform Probate Code . INFORMAL PROBATE; NOTICE REQUIREMENTS.
[(a)]* The moving party must give notice as described by Section 1-401 of his application for informal probate to any person demanding it pursuant to Section 3-204, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of

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informal probate is required.
[(b) If an informal probate is granted, within 30 days thereafter the applicant shall give
written information of the probate to the heirs and devisees. The information shall include the name and address of the applicant, the name and location of the court granting the informal probate, and the date of the probate. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred if a personal representative is appointed who is required to give the written information required by Section 3-705. An applicant’s failure to give information as required by this section is a breach of his duty to the heirs and devisees but does not affect the validity of the probate.]
* This paragraph becomes subsection (a) if optional subsection (b) is accepted.
Comment
This provision assumes that there will be a single office within each county or other area of jurisdiction of the probate court which can be checked for demands for notice relating to estates in that area. If there are or may be several registrars within a given area, provision would need to be made so that information concerning demands for notice might be obtained from the chief registrar’s place of business.
In 1975, the Joint Editorial Board recommended the addition, as a bracketed, optional provision, of subsection (b). The recommendation was derived from a provision added to the Code in Idaho at the time of original enactment. The Board viewed the addition as interesting, possibly worthwhile, and worth being brought to the attention of enacting states as an optional addition. The Board views the informational notice required by Section 3-705 to be of more importance in preventing injustices under the Code, because the opening of an estate via appointment of a personal representative instantly gives the estate representative powers over estate assets that can be used wrongfully and to the possible detriment of interested persons. Hence, the Section 3-705 duty is a part of the recommended Code, rather than a bracketed, optional provision. By contrast, the informal probate of a will that is not accompanied or followed by appointment of a personal representative only serves to shift the burden of making the next move to disinterested heirs who, inter alia, may initiate a Section 3-401 formal testacy proceeding to contest the will at any time within the limitations prescribed by Section 3-108. 

SECTION 3-305 Uniform Probate Code. INFORMAL PROBATE; REGISTRAR NOT SATISFIED.

SECTION 3-305 Uniform Probate Code. INFORMAL PROBATE; REGISTRAR NOT SATISFIED. If the Registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of Sections 3-303 and 3-304 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
Comment
The purpose of this section is to recognize that the Registrar should have some authority to deny probate to an instrument even though all stated statutory requirements may be said to have been met. Denial of an application for informal probate cannot be appealed. Rather, the proponent may initiate a formal proceeding so that the matter may be brought before the judge in the normal way for contested matters. 

SECTION 3-304 Uniform Probate Code. INFORMAL PROBATE; UNAVAILABLE IN CERTAIN CASES.

SECTION 3-304 Uniform Probate Code. INFORMAL PROBATE; UNAVAILABLE IN CERTAIN CASES. Applications for informal probate which relate to one or more of a known series of testamentary instruments (other than a will and one or more codicils thereto) the latest of which does not expressly revoke the earlier, shall be declined.
Comment
The Registrar handles the informal proceeding, but is required to decline applications in certain cases where circumstances suggest that formal probate would provide desirable safeguards. 

SECTION 3-303 Uniform Probate Code INFORMAL PROBATE; PROOF AND FINDINGS REQUIRED.

SECTION 3-303 Uniform Probate Code  INFORMAL PROBATE; PROOF AND FINDINGS REQUIRED.
(a) In an informal proceeding for original probate of a will, the Registrar shall determine whether:
(1) the application is complete;
(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in Section 1-201(23);
(4) on the basis of the statements in the application, venue is proper;
(5) an original, duly executed and apparently unrevoked will is in the Registrar’s
possession;
(6) any notice required by Section 3-204 has been given and that the application is not within Section 3-304; and

expired.

(7) it appears from the application that the time limit for original probate has not

b) The application shall be denied if it indicates that a personal representative has been appointed in another [county] of this state or except as provided in subsection (d) below, if it appears that this or another will of the decedent has been the subject of a previous probate order.

(c) A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under Section 2-502, 2-503 or 2-506 have been met shall be probated without further proof. In other cases, the Registrar may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
(d) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.
(e) A will from a place which does not provide for probate of a will after death and which is not eligible for probate under subsection (a) above, may be probated in this state upon receipt by the Registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.
Comment
The purpose of this section is to permit informal probate of a will which, from a simple attestation clause, appears to have been executed properly. It is not necessary that the will be notarized as is the case with “pre-proved” wills in some states. If a will is “pre-proved” as provided in Article II, it will, of course, “appear” to be well executed and include the recital necessary for easy probate here. If the instrument does not contain a proper recital by attesting witnesses, it may be probated informally on the strength of an affidavit by a person who can say what occurred at the time of execution.

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Except where probate or its equivalent has occurred previously in another state, informal probate is available only where an original will exists and is available to be filed. Lost or destroyed wills must be established in formal proceedings. See Section 3-402. Under Section 3- 401, pendency of formal testacy proceedings blocks informal probate or appointment proceedings. 

SECTION 3-302 Uniform Probate Code . INFORMAL PROBATE; DUTY OF REGISTRAR; EFFECT OF INFORMAL PROBATE.

SECTION 3-302 Uniform Probate Code . INFORMAL PROBATE; DUTY OF REGISTRAR; EFFECT OF INFORMAL PROBATE. Upon receipt of an application requesting informal probate of a will, the Registrar, upon making the findings required by Section 3-303 shall issue a written statement of informal probate if at least 120 hours have elapsed since the decedent’s death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal

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probate of a will renders the probate void.
Comment
Sections 68 and 70 of the Model Probate Code (1946) contemplate probate by judicial order as the only method of validating a will. This “umbrella” section and the sections it refers to describe an alternative procedure called “informal probate”. It is a statement of probate by the Registrar. A succeeding section describes cases in which informal probate is to be denied. “Informal probate” is subjected to safeguards which seem appropriate to a transaction which has the effect of making a will operative and which may be the only official reaction concerning its validity. “Informal probate”, it is hoped, will serve to keep the simple will which generates no controversy from becoming involved in truly judicial proceedings. The procedure is very much like “probate in common form” as it is known in England and some states.