Monday, September 25, 2017

Governor Signs Digital Fiduciary Act

Governor Signs Digital Fiduciary Act
The Governor signed legislation recognizing a fiduciary heir's right to obtain control of a decedent's digital assets.
The legislation was proposed in 2014 by the National Conference of Commissioners on Uniform State Laws. The commission said 23 states already have enacted a version of the legislation, while 18 others are in the process of doing so.
The state Assembly gave final legislative passage to A-3433, known as the Uniform Fiduciary Access to Digital Assets Act, in July. The bill passed both houses of the Legislature without opposition.
"If a custodial party wants to guard their digital assets, they should be able to without regulatory barriers. Digital property such as email accounts, social media accounts and Internet-based currency is just as important as any other asset a person may have," said the lead sponsor, Assembly Majority Leader Louis Greenwald, D-Camden. "This will help individuals protect digital properties as they would their physical assets."
Under the UFADAA, the traditional power of a fiduciary to manage a person's tangible property when that person dies or loses the ability to manage his own property would be extended to include digital assets.
The act defines the term "digital assets" as a person's digital property and electronic communications. Some examples of digital assets are financial accounts, such as online bank accounts; email accounts and social media accounts; computer files; web domains; and virtual currency.
The UFADAA allows fiduciaries to manage digital property but restricts a fiduciary's access to electronic communications such as email, text messages and social media accounts unless the original user consented to such access in a will, trust, power of attorney or other record, the sponsors said.
The act covers four types of fiduciaries: Executors or administrators of deceased persons' estates, court-appointed guardians of incapacitated persons, agents appointed under powers of attorney, and trustees.
The bill does not apply to digital assets of an employer used by an employee.
Also under the UFADAA, fiduciaries for digital assets are subject to the same fiduciary duties that normally apply to tangible assets. For example, an executor would not be authorized to publish the decedent's confidential communications or impersonate the decedent by sending email from the decedent's account.
The sponsors noted that a fiduciary's management of digital assets may also be governed by other law. For example, a fiduciary may not copy or distribute digital files in violation of copyright law, and may not exceed the user's authority under the account's terms of service.
To gain access to digital assets, a fiduciary will be required to send a request to the custodian, with a copy of the document granting fiduciary authority, such as a letter of appointment, court order or certification of trust.
           

        The Senate Judiciary Committee reports favorably and with committee amendments Assembly Bill No. 3433 (2R).
      This law, as amended, would enact the “Uniform Fiduciary Access to Digital Assets Act” (UFADAA). The model act was promulgated by the Uniform Law Commission in 2014 and revised by the commission in 2015. 
      Under the law, the traditional power of a fiduciary to manage a person’s tangible property when that person dies or loses the ability to manage his own property would be extended to allow the fiduciary to manage digital assets.  The law defines the term “digital assets” to mean a person’s digital property and electronic communications.  The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
      The law allows fiduciaries to manage digital property, such as computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user (i.e., accountholder) consented in a will, trust, power of attorney, or other record.
      The law encompasses four types of fiduciaries: (1) executors or administrators of deceased persons’ estates; (2) court-appointed guardians of incapacitated persons; (3) agents appointed under powers of attorney; and (4) trustees.
      The law would not apply to digital assets of an employer used by an employee during the ordinary course of business.    
      The law distinguishes between a “catalogue of electronic communications” (information that identifies each person with which a user has had an electronic communication, and the time and date of that communication) and the “content of an electronic communication” (information concerning the substance or meaning of the communication).  The law provides that generally a fiduciary would have access to a catalogue of the user’s communications, but not the content, unless the user consented to the disclosure of the content.
      Under the law, a “custodian” is a person or entity that carries, maintains, processes, receives, or stores digital assets.  The law provides that if a custodian provides an “online tool,” separate from the general terms of service, that allows the user to name another person to have access to the user’s digital assets or to direct the custodian to delete the user’s digital assets, the user’s online instructions would be enforceable.
      If the custodian does not provide an online tool or if the user declines to use the online tool provided, the user may give directions for the disposition of digital assets in a will, trust, power of attorney, or other written record.
      If the user has not provided any direction, either online or in an estate plan, the terms of service for the user’s account would determine whether a fiduciary may access the user’s digital assets. If the terms of service do not address fiduciary access, the default rules presented in the law would apply.
      Under the law, fiduciaries for digital assets would be subject to the same fiduciary duties that normally apply to tangible assets.  Thus, for example, an executor would not be authorized to publish the decedent’s confidential communications or impersonate the decedent by sending email from the decedent’s account. A fiduciary’s management of digital assets may also be limited by other law.  For example, a fiduciary may not copy or distribute digital files in violation of copyright law, and may not exceed the user’s authority under the account’s terms of service.
      In order to gain access to digital assets, a fiduciary would be required to send a request to the custodian, accompanied by a copy of the document granting fiduciary authority, such as a letter of appointment, court order, or certification of trust. 
      Under the law, custodians of digital assets would be immune from any liability for an act or omission done in good faith in compliance with the law.  
Specific Sections of the Law:
      Section 1:  Designates the law as the “Uniform Fiduciary Access to Digital Assets Act.” 
      Section 2:  Sets out definitions of terms.  Among other definitions, this section of the law defines the term “court” to mean the Probate Part of the Chancery Division of the Superior Court, and includes the Surrogate’s Court acting within the scope of its authority.
      Section 3:  Provides that the law applies to a custodian if the user resides in this State or resided in this State at the time of the user’s death, and provides that the law does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.
      Section 4:  Sets out procedures concerning the use of an online tool to designate disclosure or non-disclosure of the user’s digital assets.          Section 5:        Establishes that the terms-of-service agreement governing an online account applies to fiduciaries as well as users, and clarifies that a fiduciary or designated recipient would not have any new or expanded rights other than those held by the user.   A “designated recipient” is a person chosen by the user, using an online tool made available by the custodian of an online account, to administer the user’s digital assets for that particular account. 
      Section 6:  Gives the custodians of digital assets some discretion in determining disclosure of digital assets to fiduciaries and designated recipients.  This section provides that a custodian may, for example, comply with a request for access to reset the password and access the user’s account. Under the law, a custodian may also comply without giving access to a user’s account by simply giving a copy of all the user’s digital assets to the fiduciary or designated recipient. This section also allows the custodian to assess a reasonable administrative charge for the cost of disclosing digital assets. 
      With respect to disclosure, the custodian shall either: (1) grant a fiduciary or designated recipient full access to the account; (2) grant a fiduciary or designated recipient partial access; or (3) provide a fiduciary or designated recipient a copy in a record of any digital asset that the user could have accessed on the date the custodian received the request if the user were alive and had full capacity.  Thus, the custodian would have discretion as to which method of disclosure to use, but would not have discretion to refuse disclosure. 
      Sections 7-14: Establishes the rights of personal representatives of an estate, guardians, agents acting pursuant to a power of attorney, and trustees.  Each of the fiduciaries is subject to different rules for the content of communications protected under federal privacy laws and for other types of digital assets. 
      Section 15: Provides that the legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including the duty of care, the duty of loyalty, and the duty of confidentiality.  The section also provides that, except as otherwise provided in section 4 of the law concerning online tools, a fiduciary’s or designated recipient’s authority with respect to a digital asset: would be subject to the applicable terms of service; would be subject to other applicable law, including copyright law; in the case of a fiduciary, would be limited by the scope of the fiduciary’s duties; and may not be used to impersonate the user. This section also authorizes a fiduciary to make a request to a custodian to terminate the user’s account and sets out the documentation that must accompany such request, such as a copy of the death certificate, court order, power of attorney, or trust. 
      Section 16: Requires the custodian to comply with a request from a fiduciary or designated recipient, within 60 days after receipt, concerning the disclosure of digital assets or termination of a user’s account.  If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance. This section also allows a custodian to deny a request from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any further lawful access to the account following the receipt of the termination request; this is intended to protect joint owners of the account.
      Section 17:  Provides that in applying and construing the law, intended as a multistate uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
      Section 18:  Provides that the law modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).
      Section 19:  Provides that the law would take effect on the 90th day following enactment and would apply retroactively.  It would encompass a fiduciary acting under a will or power of attorney executed before, on, or after the effective date of the law; a personal representative acting for a decedent who died before, on, or after the effective date; a guardianship, whether the guardian was appointed before, on, or after the effective date; and a trustee acting under a trust created before, on, or after the effective date.


Sunday, September 24, 2017

Edison Library New NJ Estate Tax Law, Wills, & Estate Seminar October 3

    Edison Library
New NJ Estate Tax Law, Wills, & Estate Seminar
October 3 at 7pm  Free community program
  Edison Library Main Branch 340 Plainfield Ave. Edison, NJ 08817  

WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY
SPEAKER: Kenneth Vercammen, Esq. Edison, NJ
               Author- Wills & Estate Administration ABA
     The January 1, 2017 New Estate Tax law made a number of substantial changes in the administration of estates and trusts in New Jersey.
Main Topics:
1.   2017 changes to NJ Estate Tax & changes to taxes on pensions
2. 2017changes in Federal Estate and Gift Tax 
3. The New Probate Law and preparation of Wills 
4. Power of Attorney
5.  Living Will             
6.  Administering the Estate/ Probate/Surrogate 
       You do not need to be an Edison resident to attend.
     COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.  
For info call 732-287-2298 x 228
To register go to http://www.edisonpubliclibrary.net/index-ek.shtml
Facebook  https://www.facebook.com/events/160933837782053/
      
     FREE WILL SEMINARS AND SPEAKERS BUREAU for community groups
       The AARP Network Attorneys of the Edison/Metuchen/East Brunswick area had established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. During the past year, volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. For other organizations to schedule a Will Seminar, please call Kenneth Vercammen Law Office at (732) 572-0500, email VercammenLaw@njlaws.com
       Kenneth Vercammen is a trial attorney in Edison, NJ. Ken is author of the ABA’s book “Wills and Estate Administration.” He is co-chair of the American Bar Association’s Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  Ken is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.
      Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
www.njlaws.com


Sunday, September 3, 2017

What does a Will consist of?

What does a Will consist of?
WHAT IS A WILL?
         
         “A Will is a Legal  written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed and  who will take care of your  minor children if the other parent should die ".  You should remember that the term “property” under the law includes "real estate as well as other possessions and rights to receive money or items of value.”  Everyone who has at least $3,000 in assets should have a Will.   You do not have to be wealthy, married, or near death to do some serious thinking about your Will.


         THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH  YOUR ATTORNEY MAY INCLUDE IN A WILL:

1ST:  DEBTS AND TAXES
2ND: SPECIFIC BEQUESTS
3RD:  DISPOSITION TO SPOUSE
4TH: DISPOSITION OF REMAINDER OF ESTATE
5TH: CREATION OF TRUSTS FOR SPOUSE
6TH: CREATION OF TRUST FOR CHILDREN
7TH: OTHER BENEFICIARIES UNDER 21
8TH: EXECUTORS
9TH: TRUSTEES
10TH: GUARDIANS
11TH: SURETY OR BOND
12TH: POWERS
13TH: AFTERBORN CHILDREN
14TH: PRINCIPAL AND INCOME
15TH: NO ASSIGNMENT OF BEQUESTS
16TH: GENDER
17TH: CONSTRUCTION OF WILL
18TH:  NO CONTEST CLAUSE
         A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.


WHY PERIODIC  REVIEW IS ESSENTIAL
        
         Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will.  Some of these are:
    
* Marriage, death, birth, divorce or separation affecting either you or  anyone named in your Will

*Significant changes in the value of  your total assets or in any particular assets, which you own
    
* A change in your domicile
    
* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will

*Annual changes in tax law
 

WILLS AND ESTATE PLANNING
"SAVE MONEY AND PROVIDE FOR YOUR LOVED ONES "
By Kenneth A. Vercammen, Esq. 

         As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years.  In spite of all the resources and assets we earn, the vast majority of us do not take the time to create a Will.
        
         National statistics indicate that 80% of Americans die without leaving a Will.  There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich need to have Wills).  Whatever the excuse, it is clear that people would benefit from having a Will.

         In the absence of a Will or other legal arrangement to distribute property at death, problems arise.  The result can be lengthy delays before the rightful heirs receive their property.  And because the state has no instructions from the deceased, no charitable gifts will be made.

IF YOU HAVE NO WILL:
          
         If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
* State law determines who gets assets, not you
* Additional expenses will be incurred and extra work will be required to qualify an administrator
* Judge determines who gets custody of your children
* Possible additional State inheritance taxes and Federal estate taxes
*  If you have no spouse or close relatives the State may take your property
 * The procedure to distribute assets becomes more complicated-and   the law makes no exceptions for persons in unusual need or for your own wishes.
*  It may also cause fights and lawsuits within your family
When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns.  Careful estate planning helps take care of that.
SAVE MONEY BY HAVING YOUR ATTORNEY PREPARE A NEW WILL
 Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond.  With a well-drawn  Will, you may also reduce death taxes and other expenses.  Don’t pinch pennies now to the detriment of  your beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate.  Because the matters covered are complicated and the Federal and New Jersey laws frequently change,  this article can only outline some of the many legal issues you should  consider. 

The proper preparation of a Will should involve a careful analysis of  the client’s assets, family and his/her desires.  
         Estate Planning is the process of examining what will happen to your property when you die and arranging for its distribution in such a manner as will accomplish your objectives. 
         The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.  

         A properly drawn Basic Will without Trust costs approximately $300.00 to $600.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have.
         Be sure your Will takes into account the Federal Tax changes and New Jersey Inheritance Tax changes.  Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death and pay for them to appear before the Surrogate.
MAY I CHANGE MY WILL?
        
         Yes.  A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will.  You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of  property until they are mature.  Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document.  Either a new Will should be legally prepared or a codicil signed to legally change  portions of the Will.


ADMINISTRATION OF  AN  ESTATE
        
         If you are named the executor, you must visit the County Surrogate to probate the Will.  You will need the following items:
         1. The Death  Certificate
         2. The Original Will
         3. Names and Addresses of decedent's, next of kin and list of beneficiaries
         4. Minimum of $130.00 for Surrogate fees

A NJ state inheritance tax return must be filed if real estate is left and the tax may be required on the transfer of real or personal property within eight months after death.
        
OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY
-Trusts (and Medicare Trusts)
-Power of Attorney- to allow a trusted person to  administer your assets during your lifetime, either  upon disability or now
-Living Wills- to state your wishes concerning  medical care in the event of your serious illness
        
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on litigation topics.  He has been selected to lecture to trial lawyers by the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. 
       Call our office to schedule a confidential appointment 732-572-0500