Wills and Estate Administration-Articles from Central Jersey Elder Law.com

2012 update Wills and Estate Planning- Free Seminar

2012-01-19T09:30:00.001-08:00

2012 update Wills and Estate Planning

Seminar materials

Compiled by Kenneth Vercammen

1. Federal Estate Tax increased to Estates over $5,000,000, but New Jersey taxes estates over $675,000.

2. Non-formal writings could be Wills under the New Probate Law

3. The recommendation for Self- Proving Wills

4. Revised statute requires Palimony agreements to be in writing.

5. Recent case can void Will signed under suspicious circumstances

6 Gifts permitted without Federal Estate & Gift tax was increased to $13,000 per person.

1. Federal Estate Tax increased to Estates over $5,120,000, but New Jersey taxes estates over $675,000.

The Federal estate tax was reinstated for 2011 and 2012. The exemption amount will be $5 million per individual in 2011 and was indexed to inflation in 2012 to $5,120,000,. Estates of people who died in 2010 can choose to follow either the rules in effect for 2010 or 2011.

The Act sets a $5 million generation-skipping transfer tax exemption and zero percent rate for the 2010 year.

New Jersey has an Estate Tax on amounts over $675,000. So, even if no Federal Estate Tax due, the estate must still file a Federal Estate Tax Return, plus NJ Estate Tax Return.

So, for an unmarried or widowed person with assets of $1,000,000, there is No Federal Estate Taxes, but

the Estimated State Estate Tax: $33,200.00

For an unmarried or widowed person with assets of $1,500,000, estimated NJ Estate Tax is over $60,000

2. Non formal writings could be Wills under the Revised Probate Law, so make sure you have a Formal Will drafted without notations written on it.

SENATE Law No. 708 made a number of substantial changes to the provisions governing the administration of estates and trusts in New Jersey.

The adoption of portions of the Uniform Probate Code attempted to bring greater uniformity to the rules governing testamentary and non-testamentary transfers to make most state laws similar.

The law expanded situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. Possibly a Christmas card with handwritten notes could be presented as a Will or Codicil.

To present a non-formal Will or writing requires an expensive Complaint and Order to Show Cause to be filed in the Superior Court, and a hearing in front of a Superior Court Judge.

Be careful; have a Will done properly by an experienced attorney.

3. We recommend Self- Proving Wills

An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogate’s office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmother’s Will was not self- proving, and the witness to Will extorted a $500 fee.

The New Jersey Legislature later passed a law to create a type of Will called a “Self-Proving Will.” In such a Will, the person for whom the Will is made must sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving.

When done properly, the executor does not have to locate any witnesses. This usually saves time and money. If your Will is not “self-proving” or if you are unsure, schedule an appointment with an elder law attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows 1978 laws.

Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if in a 2^nd marriage

The elective share provisions of the present Code has still not been changed yet. Currently, a spouse who is not given money in a Will can challenge the terms of the Will. This is called "electing against the Will by a spouse". A spouse could receive up to 1/3 of the estate, even if only married for 2 weeks. The spouse must file a caveat or lawsuit in Superior Court. We suggest a formal prenuptial agreement in 2^nd marriage situations.

A Testator now means both male and female individuals, removing the term “Testatrix”. Will forms used by attorneys will need to be revised.

The law provides a statute of limitations with respect to creditor claims against a decedent's estate. There is no longer a need to publish a Notice Limiting Creditors.

4. Revised statute requires Palimony agreements to be in writing.

This law is intended to overturn recent "palimony" decisions by New Jersey courts by requiring that any such contract must be in writing and signed by the person making the promise. More specifically, the law provides that a promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and signed. The law provides that no such written promise is binding unless it was made with the independent advice of counsel for both parties.

This law eliminates the holdings of two cases, Devaney v. L’Esperance, 195 N.J. 247 (2008) and In re Estate of Roccamonte, 174 N.J. 381 (2002), the New Jersey Supreme Court upheld palimony agreements between two unmarried cohabitants. In the Devaney case the court held that “cohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.” In the Roccamonte case, the court held that an implied promise of support for life is enforceable against the promisor’s (cohabitant’s) estate.

The new palimony law almost totally eliminates palimony in NJ.

5. Supreme Court held Will could be void if signed under suspicious circumstances

When there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the Will proponent to overcome the presumption.

If there is undue influence in making of Will and transfer by Deed of a house by persons in Confidential relationship, this could subject those persons to punitive damages in some instances, plus voiding of the Will. In the Matter of the Estate of Madeleine Stockdale, Deceased 196 NJ 275 (2008)

6 Gifts permitted without Federal Estate & Gift tax was increased to $13,000 per person. The amount permitted for Medicaid transfers is zero.

7. NJ Inheritance tax

The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms were revised in September, 2011. Throw out old forms. Even if no inheritance tax due, a Tax Waiver on a house must be obtained and filed if the house was not co-owned by the spouse.

8. Power of Attorney

Do not use a form purchased online, unless it contains reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11).

9. Federal Health Privacy Law (HIPAA)

A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients.

The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues.

Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.

Powers of attorneys and Living Wills should be updated to reference this new law. More information on the HIPAA law at http://www.njlaws.com/hipaa.htm

After you sign the Living Will in your attorney’s office, provide a copy to your doctor and family.

More information on Wills and Probate at

http://www.njlaws.com/more_articles_on____.asp?Category=Wills_and_Probate

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

More information at www.CentralJerseyElderLaw.com

4:91-1. Proceedings When Estate Is Insolvent

2011-12-19T13:54:00.001-08:00

RULE 4:91. Insolvent Estates

4:91-1. Proceedings When Estate Is Insolvent

(a) Complaint; Order to Show Cause. At any time after nine months following the date of decedent's death, the executor or administrator may commence an action in the Chancery Division, Probate Part, by a complaint stating that to the best of the executor or administrator's knowledge and belief, the real and personal estate of the decedent is insufficient to pay debts. The action shall proceed by order to show cause, which shall require the executor or administrator to give notice of the proceedings to the persons specified by R. 4:91-2 and shall set the date by which answers to the complaint or exceptions pursuant to R. 4:91-3 must be filed.
(b) Report of Claims; Account. The executor or administrator shall file with the complaint a list of creditors who have presented claims within nine months following the date of decedent's death, or which the executor or administrator intends to allow without requiring the submission of a formal claim, stating the amount of each claim, whether it has been allowed or rejected, whether it is entitled to a statutory priority, and whether the claim is based on judgment, bond, note, book account, or otherwise. The executor or administrator shall also file with the complaint an account in the form required by R. 4:87-3.
(c) Judgment. The court may, on the presentation of the report of claims and the presentation of the account, adjudge the estate to be insolvent and determine the amount of each claim and its priority for payment.

Note: Source - R.R. 4:110-1, 4:110-2(a)(b). Paragraph (a) amended July 22, 1983 to be effective September 12, 1983; paragraphs (a) and (b) amended June 29, 1990 to be effective September 4, 1990; caption amended, paragraphs (a) and (b) caption and text amended, and paragraph (c) amended July 27, 20

4:91-2. Service on Creditors and Other Interested Persons of Insolvent Estate

Service of the complaint together with the report of claims and account and order to show cause on creditors who have presented claims within nine months of the decedent's death and other interested persons shall be made in accordance with R. 4:87-4.

Note: Source - R.R. 4:110-3 (first, second and third sentences); amended June 29, 1990 to be effective September 4, 1990; caption and text amended July 27, 2006 to be effective September 1, 2006.

4:91-3. Exceptions to Account, Inventory and Claims; Determination

A creditor or other interested person may take exceptions to the account of the executor or administrator in respect of the personal estate and the inventory of the real estate. The executor or administrator, or any other interested person, may take exceptions to any creditor's claim or part thereof. Such exceptions shall be served on or before the hearing in the action or within such time as the court on application allows. Any account and inventory not excepted to shall be allowed as true, and a claim not excepted to shall be deemed justly due. The court shall hear proofs on the exceptions and shall make such determination and final judgment with respect thereto as is just and lawful.

Note: Source-R.R. 4:110-4; amended June 29, 1990 to be effective September 4, 1990.

4:91-4. Excepted Claims; Plenary Action; Recovery

If a creditor to whose claim exception is made elects to proceed in a plenary civil action in preference to a determination by the court on the exception, he or she shall so proceed immediately. If an executor or administrator desires to have a claim determined in a plenary action, he or she shall, before filing the report, so notify the creditor who shall thereupon proceed to sue immediately. Such sum as the creditor recovers in such plenary action shall be the amount upon which a ratable portion shall be paid. The court in which the action is brought shall dispose thereof as quickly as possible.

Note: Source-R.R. 4:110-5; amended June 29, 1990 to be effective September 4, 1990.

4:91-5. Actions Pending May Proceed to Judgment

If an action by a creditor or other interested party is pending against the executor or administrator on the date of the filing of the complaint to adjudge the estate insolvent, the action may proceed to final judgment, but no execution shall issue until final judgment is entered in the insolvency proceeding. If the estate is adjudicated insolvent, the judgment creditor shall be entitled to receive the ratable portion determined by such final judgment.

2012 update Wills and Estate Planning- Free Seminar

2011-11-05T18:57:00.001-07:00

Wednesday January 11, 2012 12:15-1:00 PM

Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

Invited: Clients, Friends, Accountants, Business Owners, HR staff, Financial Planners, Insurance Agents, Nursing Home Staff, Hospital and Nursing Home Social Workers, Office on Aging Personnel, Senior Club Presidents, and Medicaid Workers,

COST: Free if you pre-register. Complimentary Sandwiches and materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

(Author- Answers to Questions About Probate)

The new 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. 2012 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Question and Answer

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.

Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.njlaws.com/Estate-Planning-2012.htm

Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Saturday, August 6, 2011

2011-07-03T09:56:00.001-07:00

Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice

Saturday, August 6, 2011 at 2:00pm - 3:30pm

Metro Toronto Convention Centre

ABA Annual Meeting Toronto, Canada

Learn from nationally recognized experts on using new techniques to improve service to Elder Law & Estate clients. Forms & briefs will be provided to all attendees.

Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to

Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA

Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Parag Patel, Esq. Iselin, NJ

Elder Law program Primary Sponsors: General Practice Section

Co-sponsors: ABA Commission on Law & Aging, Health Law Section,

YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section

Topics:

Getting referrals from other professionals

The aftermath of the Terry Schiavo case and Living Wills.

Forms you can use

Email newsletters

How to manage telephone conversations with your clients

Marketing with written fee agreements

-Ethics and marketing without violating the Rules of Professional Conduct

Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.

[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]

Contact American Bar Association's ITS at 800-421-0459 for ABA meeting registration

http://kennethvercammen.com/toronto.htm

Elder Law & Estate Administration Book

2011-05-18T14:03:00.000-07:00

Elder Law & Estate Administration Book

435 page book Book elder law & estate administration including:

Everything you need to know about elder law & estate administration including: 

• Why Have a Will? - Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? 

• Powers of Attorney - Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms 

• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool - Why it should be used; Ethics - who is the client?; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms 

• Basic Tax Considerations - Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters 

• Estate Administration - New Probate Law in New Jersey - Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists 

• Medicaid Planning in Light of Federal Medicaid Reform - Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules; probate; undue influence; competency …and more

DOCKET NO. A-5673-09T4 IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

2011-05-18T10:23:00.001-07:00

DOCKET NO. A-5673-09T4

IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

_______________________________________________

Submitted May 4, 2011 – Decided May 13, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P621-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONIn this appeal, Heather Fernandes, a beneficiary of her mother's estate, appeals an order that granted respondent Glenn A. Coleman -- a removed co-executor -- compensation for his performance as a co-executor and reimbursement of certain legal fees incurred. Because the trial judge failed to explain his rulings, we remand.

The limited record presented by these pro se litigants reveals that Geraldine Parks died on February 12, 2008. She had six children: Georgia, Heather, Russell, Patricia, Phillip, and

Glenn.1 Decedent's Will named two of them -- Glenn and Russell -- as co-executors. Difficulties with the administration of the estate surfaced, resulting in an application brought by Glenn for: the removal of both he and Russell as executors; the appointment of an attorney to act as administrator; and reimbursement for certain expenses he claimed to have incurred.

Heather, Russell, Georgia, Phillip, and Glenn's attorney appeared in court on December 7, 2009, the return date of the order to show cause. Although the moving and opposing papers were not included in the record on appeal, we assume from the transcript of the proceedings on that date that Glenn had moved to be discharged because of his own illness and the fact that he resides in North Carolina, circumstances that rendered difficult his ability to administer the estate; Russell's removal was sought on the claim that he had misappropriated or mismanaged estate property. The judge did not conduct an evidentiary hearing but instead permitted Heather, Russell, Georgia, and Phillip, all of whom were unrepresented, to express their positions. Russell opposed his own removal; Heather questioned the veracity of Glenn's contentions as to his performance in managing the estate and his alleged inability to continue in that role; Georgia expressed concern about Glenn's removal

1We refer to them by their first names to avoid confusion.

A-5673-09T4

before providing an accounting; and Phillip also argued Glenn should not be removed until he provided an accounting. Citing Glenn's "purported health condition and the fact that he's out of state," the judge concluded that he would "permit [Glenn] to resign as executor," but directed that he provide an informal accounting within sixty days. As for Russell, the judge concluded that he was "satisfied that there is a sufficient issue here warranting his removal as executor based upon the allegations of misappropriation here that have been referred to the prosecutor's office." The judge appointed an attorney to administer the estate.

The informal accounting was timely provided, and the matter back before the judge on February 9, 2010. At that time, the administrator appeared, as well as Heather, Georgia, and Phillip; Glenn appeared by telephone. At that time, Heather provided specifics as to why she believed Glenn's performance as co-executor was inadequate; the record on appeal does not contain any written exceptions that she filed nor does it reveal whether she even filed written exceptions. When the parties completed their arguments, the judge reserved decision.

On March 11, 2010, the judge entered an order that approved the informal accounting with the exception that he found Glenn was not entitled to reimbursement for legal fees expended in

A-5673-09T4

seeking to be relieved as co-executor but was permitted reimbursement of $525, which was paid to the attorney "in connection with the appointment of the Administrator following removal of the Executors." The judge attached to the order a

statement

of reasons, the entirety of which is as follows:

The co-executors were removed for cause and any commissions ordinarily payable to them are forfeited under N.J.S.A. § 3B:18-5. Equity dictates that the harm to other beneficiaries based upon time delay warrants a finding that a portion of the counsel fees sought as reimbursement by [Glenn] be forfeited. A portion, however, benefited the entire Estate and should be paid as an expense of administration.

The Administrator is entitled to legal fees under N.J.S.A. § 3B:18-6 and commissions under N.J.S.A. § 3B:18-4 and N.J.S.A. § 3B:18-16.

The order also contained a provision that reduced the proposed distribution to Russell by what he owed the estate; this provision declared that the balance of the distribution to Russell "shall be held until all outstanding matters are resolved."

Glenn later moved for reconsideration of that part of the March 11, 2010 order that limited the reimbursement of attorneys' fees expended in the initial application and that barred his recovery of a commission. He argued, among other things, that he had sought his own discharge as co-executor

A-5673-09T4

"[n]ot because he had done anything wrong, but because for medical reasons and personal reasons, he no longer wished to continue in his role" and that the judge must have mistakenly "lumped together" Glenn and Russell when he ruled on the informal accounting. In the colloquy between the judge and Glenn's attorney, the judge seemed to agree that he "may have juxtaposed" Glenn and Russell, and that he would have to "take a look at that" before ruling on the motion.

Heather opposed reconsideration, criticizing Glenn's performance as co-executor to the extent that would justify the terms of the judge's March 11, 2010 order. Heather also argued the motion was filed beyond the time frame set forth in Rule 4:49-2, to which the judge responded that he could "always correct a mistake" and that, after listening to the parties' arguments, he felt "about 99 percent sure I made a mistake when I entered this order the way I did." The judge, however, reserved decision in order "to go back over everything that was presented at that time and make sure that . . . this is what I intended."

On June 24, 2010, the judge entered an order that granted reconsideration and directed that Glenn be reimbursed $2620 in legal fees and $280.41 in costs, which were incurred when he sought to be relieved as co-executor. The order also permitted

A-5673-09T4

compensation to Glenn, pursuant to N.J.S.A. 3B:18-13, in the amount of $2500. The record does not reveal that the judge provided any oral or written decision to explain the reasons for entry of this order.

Heather filed a timely appeal from the June 24, 2010 order. We glean from her pro se brief that she argues, among other things: that Glenn was removed as co-executor for cause; that the March 11, 2010 order was correct and appropriate; and that the motion for reconsideration was untimely, thereby depriving the judge of jurisdiction to enter the June 24, 2010 order. We cannot presently reach these issues on their merits because of the judge's failure to express the reasons for the June 24, 2010 order, pursuant to Rule 1:7-4(a).

Litigants and appellate courts are entitled to a trial judge's rationale when reviewing his actions. See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006). For that reason alone, we remand this matter to the trial court. In addition, it is not clear to us whether the March 11, 2010 order was a final order; that question is critical to determining whether the trial court had jurisdiction to enter the June 24, 2010 order. If the March 11, 2010 order was final -- that is, if it disposed of all issues as to all parties -- then the motion for reconsideration

A-5673-09T4

was untimely because it was filed more than twenty days from service of the order in question. See R. 4:49-2. And, if the motion for reconsideration was untimely, the judge did not have jurisdiction to rule on it.2 If, however, the March 11, 2010 order was not a final order, then the judge was authorized to reconsider it at any time prior to the entry of a final judgment. See R. 4:42-2.

We, thus, remand for the judge's analysis of the circumstances relevant to whether the March 11, 2010 order was a final order. As observed earlier, that order directed that the distribution to Russell was to "be held until all outstanding matters are resolved." In this setting, and in light of the limited record on appeal, that direction may or may not suggest there were issues remaining to be resolved in this action. For example, because the record does not include the complaint or any responsive pleadings filed in this action, we cannot determine whether there were claims asserted in this action that relate to the judge's reference to "outstanding matters"; that phrase, however, could also be a reference to the additional work yet to be accomplished by the administrator with regard to

2The twenty-day time limit contained in Rule 4:49-2 may not be enlarged. See R. 1:3-4(c); Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).

A-5673-09T4

this estate. If the former, then it would seem the March 11, 2010 order was not a final order; if the latter, it may be. See Higgins v. Thurber, 413 N.J. Super. 1, 12-13 (App. Div. 2010), aff'd o.b., 205 N.J. 227 (2011). The judge should identify for us the circumstances relevant in determining whether the March 11, 2010 order is final.

The judge is also to provide a statement of reasons for granting the June 24, 2010 order as required by Rule 1:7-4(a).

Remanded. We do not retain jurisdiction.

A-5673-09T4

DOCKET NO. A-5673-09T4 IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

2011-05-18T10:23:00.000-07:00

DOCKET NO. A-5673-09T4

IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

_______________________________________________

Submitted May 4, 2011 – Decided May 13, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P621-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The limited record presented by these pro se litigants reveals that Geraldine Parks died on February 12, 2008. She had six children: Georgia, Heather, Russell, Patricia, Phillip, and

1We refer to them by their first names to avoid confusion.

A-5673-09T4

On March 11, 2010, the judge entered an order that approved the informal accounting with the exception that he found Glenn was not entitled to reimbursement for legal fees expended in

A-5673-09T4

statement

of reasons, the entirety of which is as follows:

The Administrator is entitled to legal fees under N.J.S.A. § 3B:18-6 and commissions under N.J.S.A. § 3B:18-4 and N.J.S.A. § 3B:18-16.

A-5673-09T4

2The twenty-day time limit contained in Rule 4:49-2 may not be enlarged. See R. 1:3-4(c); Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).

A-5673-09T4

The judge is also to provide a statement of reasons for granting the June 24, 2010 order as required by Rule 1:7-4(a).

Remanded. We do not retain jurisdiction.

A-5673-09T4

DOCKET NO. A-2660-08T1 IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED

2011-05-18T10:14:00.003-07:00

DOCKET NO. A-2660-08T1

IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED. ______________________________

Submitted May 2, 2011 – Decided May 17, 2011

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County, Docket No. 07-955.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

PER CURIAM In this unopposed appeal, plaintiff Rocco S. Stezzi, Jr.,

pro se, appeals the Chancery Division's sua sponte order dated December 9, 2008 summarily dismissing his complaint in this litigation challenging his late father's will. For the reasons that follow, we vacate the dismissal order and remand this matter to the trial court for further proceedings.

Plaintiff's contentions relate to a will that his father, Rocco S. Stezzi, Sr., executed in July 2006. The will left the father's entire estate to plaintiff's sister, Kathleen Ferrante,

naming her as the executrix.1 Plaintiff alleges in his pleadings, upon information and belief, that the father's 2006 will superseded an earlier will from 1984, which plaintiff contends that the father executed at or around the same time plaintiff's mother executed her will. Plaintiff contends, also upon information and belief, that the 1984 wills of both parents had reciprocal terms. In the mother's will, a copy of which plaintiff supplied in the record, she left all of her assets to the father, with her children (including plaintiff) and her grandchildren designated as contingent beneficiaries. Plaintiff has not furnished a copy of the father's alleged reciprocal will from 1984.

The mother predeceased the father in October 2006, and her will was probated in Pennsylvania. The father died in August 2007, at the age of ninety-one. Shortly thereafter, Ferrante submitted the July 2006 will to be probated in the Chancery Division. In February 2008, plaintiff filed a pro se complaint in the Chancery Division in an effort to invalidate the July 2006 will, which had disinherited him.

After filing the complaint, plaintiff retained counsel to represent him in the litigation. His attorneys then drafted and

1 proceedings, but did not file a responding brief on the appeal.

Ferrante was represented by counsel in the trial court

A-2660-08T1

filed a four-count amended complaint. The first count of the complaint alleged that the father had suffered from dementia beginning as early as 2005, and that he lacked the capacity to make the 2006 will. The second count of the amended complaint alleged that Ferrante exercised undue influence over the father, who had lived with her full time since March 2005 and had become dependent upon her after the mother's death. The second count further alleged that Ferrante arranged to have decedent's insurance policies transferred to New Jersey, that she took control of the father's financial decisions, and that she took improper advantage of her confidential relationship with her father. The undue influence count further alleged that, over the last few years of the father's life, Ferrante denied plaintiff access to his father.

Both the first and second counts of the amended complaint sought a declaration that the father's 2006 will was invalid, and a declaration that either the supposed 1984 will be enforced or, alternatively, a declaration that the father died intestate, thereby enabling plaintiff to receive a share of the father's estate under the intestacy statutes. The third count of the amended complaint sought an accounting from Ferrante (as power of attorney) of the disposition of the father's assets during his lifetime, and the fourth count requested an accounting from

A-2660-08T1

her (as executrix under the 2006 will) of the disposition of the assets of the father's estate.

Eventually, disagreements arose between plaintiff and his counsel, which culminated with the court granting counsel's request to be relieved in October 2008.

Plaintiff and opposing counsel for Ferrante appeared in court on December 9, 2008 for a case management conference to review the status of the litigation. The conference had been arranged by the court in lieu of trial after plaintiff had advised the court that he was not prepared to proceed on the date listed for trial. As the judge described it at its outset, the purpose of the conference was to ascertain "what needs to be done to prepare for a full, final hearing, and how long that's going to take."

After lengthy colloquy on the record at the case management conference, the trial judge summarily dismissed the complaint, sua sponte. The judge essentially found that plaintiff was not prepared to try the case and that the legal basis of his contentions had not been sufficiently articulated. On December 15, 2008, the judge amplified on the record his rationale for dismissing the complaint. The judge perceived, among other things, that plaintiff's request for relief was unclear and that his pro se arguments were not comprehensible, that plaintiff

A-2660-08T1

lacked a sufficient understanding as to how the case would proceed and what the issues were; that he "exhibited a clear misunderstanding" of the discovery process; and that he "exhibited a clear intention not to cooperate with the [c]ourt and not to cooperate with opposing counsel in terms of discovery." The judge also noted that plaintiff had sent numerous pieces of correspondence to the assignment judge, the local judicial ombudsman, and others in the courthouse, apparently expressing dissatisfaction with how his case was being handled. The judge also alluded to cases in other tribunals in which plaintiff's claims had been dismissed as unmeritorious. The judge explained that he was referring to those other cases for illustrative purposes, and that he was not citing them as authoritative.

This appeal followed. Plaintiff contends that the dismissal of the complaint was contrary to Rule 4:37-2; that he was denied due process; that the trial court unfairly sanctioned him; that the court's post-hearing amplification of its reasons was improper; that the court should not have referred to other litigation involving him; and that the court improperly communicated with defendant's counsel about outstanding discovery. As we have already noted, plaintiff's appeal is unopposed.

A-2660-08T1

Having considered the record supplied to us and the procedural posture of the case in the trial court, we vacate the court's sua sponte order of dismissal and remand for further proceedings. In doing so, we appreciate the trial court's frustration in dealing with a pro se litigant who presented difficulties and who was often digressive and at times disrespectful. Even so, the record furnished to us does not reflect that plaintiff was given appropriate notice prior to the case management conference that his complaint could be dismissed that day as a sanction if he was unable to proffer viable evidentiary support for the legal assertions set forth in his amended complaint. See Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83-85 (App. Div. 2001) (setting aside the trial court's sua sponte order summarily dismissing a complaint after a conference on the scheduled trial date, where the plaintiff had failed to satisfy the judge's concerns about the sufficiency of his claims). Plaintiff was not found in specific violation of the terms of any prior court orders. Cf. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 520 (1995) (holding that the trial court did not abuse its discretion in dismissing a complaint, upon defendant's motion, due to plaintiff's "deliberate disregard of discovery orders"). Notably, defense counsel did not move for dismissal, despite

A-2660-08T1

being invited by the court at the management conference to state his position. There was no motion pending for summary judgment. Under the circumstances, the sua sponte order of dismissal was premature. See Klier, supra, 337 N.J. Super. at 84-85.

We consequently remand the matter for additional proceedings. In doing so, we note that the same outcome on the merits may or may not ensue, after either dispositive motion practice is conducted under Rule 4:46, or after proofs are adduced at a trial. We simply hold that the dismissal was premature and was not preceded by the appropriate notice and procedural safeguards.

Vacated and remanded. Jurisdiction is not retained.

A-2660-08T1

DOCKET NO. A-2660-08T1 IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED

2011-05-18T10:14:00.001-07:00

DOCKET NO. A-2660-08T1

IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED. ______________________________

Submitted May 2, 2011 – Decided May 17, 2011

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County, Docket No. 07-955.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

PER CURIAM In this unopposed appeal, plaintiff Rocco S. Stezzi, Jr.,

Plaintiff's contentions relate to a will that his father, Rocco S. Stezzi, Sr., executed in July 2006. The will left the father's entire estate to plaintiff's sister, Kathleen Ferrante,

After filing the complaint, plaintiff retained counsel to represent him in the litigation. His attorneys then drafted and

1 proceedings, but did not file a responding brief on the appeal.

Ferrante was represented by counsel in the trial court

A-2660-08T1

her (as executrix under the 2006 will) of the disposition of the assets of the father's estate.

Eventually, disagreements arose between plaintiff and his counsel, which culminated with the court granting counsel's request to be relieved in October 2008.

A-2660-08T1

Vacated and remanded. Jurisdiction is not retained.

A-2660-08T1

Probate & Estate Planning Update 2011

2011-03-22T19:26:00.000-07:00

Nuts & Bolts of Elder Law & Estate Administration

2011-03-19T12:58:00.000-07:00

Nuts & Bolts of Elder Law & Estate Administration

April 26, 2011

5:00 PM to 9:00 PM Tuesday

Sheraton Edison, Edison

Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.

This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice.

Everything you need to know about elder law & estate administration including: 

• Why Have a Will? - Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? 

• Powers of Attorney - Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms 

• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool - Why it should be used; Ethics - who is the client?; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms 

• Estate Administration - New Probate Law in New Jersey - Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists 

Speakers:

KENNETH A. VERCAMMEN, ESQ.

Chair, ABA Elder Law Committee

Past GP Solo Section Attorney of the Year

2006 NJSBA Municipal Court Practitioner of the Year

K. Vercammen & Associates

THOMAS D. BEGLEY, III, ESQ.

Begley, Begley & Bookbinder, PC (Moorestown)

WILLIAM P. ISELE, ESQ.

Past NJ Ombudsman for the Elderly

MARTIN A. SPIGNER, ESQ.

Law Office of Martin A. Spigner

New Jersey Institute for Continuing Legal Education  The non-profit continuing education service of:  The New Jersey State Bar Association Rutgers - The State University of New Jerseys Eton Hall University  One Constitution Square, New Brunswick, New Jersey 08901-1520  Phone: (732)214-8500 • Fax: (732)249-0383 • CustomerService@njicle.com

Seminar # S578-22154 S578-22154

Tuition fees	Reg. Fee	Reg. Type
General Tuition (REG)	$169.00	REG
NJICLE Season Ticket (STX)	1 Season Ticket(s)	STX
MEMBERS, NJSBA Co-Sponsoring (COS*)	$129.00	COS*
MEMBERS, NJSBA (NJB*)	$139.00	NJB*
MEMBERS, NJSBA YLD (YLD*)	$129.00	YLD*
Recent admittees (YL)	$145.00	YL
Paralegals (PAR)	$119.00	PAR
Law Students (with Student ID) (STU)	$0.00	STU
Full Time Judges (JUD)	$0.00	JUD

Door Registrations $189

* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.

NJ CLE INFORMATION: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3.4 hours of total CLE credit. Of these, 1.2 qualify as hours of credit for ethics/professionalism.

Presented in cooperation with the NJSBA Elder & Disability Law Section and NJSBA Young Lawyers Division

Sheraton Edison Hotel Raritan Center

125 Raritan Center Parkway · Edison, New Jersey 08837

http://www.njicle.com/seminar.aspx?sid=1406

2011 update Wills and Estate Planning Seminar

2011-02-06T12:17:00.000-08:00

2011 update Wills and Estate Planning Seminar

WHEN: Wednesday March 16, 2011 12:15-1:00 PM

WHERE: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, 2^nd floor, Edison, NJ 08817

Invited: Seniors, Club Presidents, Accountants, CPA's, Financial Planners, Insurance Producers, Nursing Home Administrators, Hospital and Nursing Home Social Workers, Medicaid Workers, Office on Aging Personnel,

COST: Free if you pre-register. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials. Complimentary Sandwiches and materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Re-scheduled from the January 12 snow cancellation.

SPEAKER: Kenneth Vercammen, Esq.

(Author- Answers to Questions About Probate)

The new 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. 2011 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Question and Answer

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.

Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.kennethvercammen.com/2011.update.Wills.html

Removing an Executor of an Estate II

2011-02-02T19:36:00.000-08:00

Removing an Executor of an Estate

Under New Jersey Law, the people selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.

In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court.

The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. This law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.

Duty of Executor in Probate & Estate Administration

1. Conduct a thorough search of the decedent's personal papers and effects for any evidence, which might point you in the direction of a potential creditor;

2. Carefully examine the decedent's checkbook and check register for recurring payments, as these may indicate an existing debt;

3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;

4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;

Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses can be deducted in the inheritance tax.

Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors.

Other duties/ Executor to Do

Bring Will to Surrogate

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries (Attorney can handle)

If charity, notice to Atty General (Attorney can handle)

File notice of Probate with Surrogate (Attorney can handle)

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)

File waivers within 8 months upon receipt (Attorney can handle)

Prepare Informal Accounting

Prepare Release and Refunding Bond (Attorney can handle)

Obtain Child Support Judgment clearance (Attorney will handle)

Let's review the major duties involved-

In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.

An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.

Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor's job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let's review the major duties involved, which we've set out below.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate's assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

COMPLAINT FOR ACCOUNTING

A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.

A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.

As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $225-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.

The plaintiff can demand the following:

(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.

(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.

(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.

(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.

(5) That the executor be removed as the executor/administrator of the estate and that p1 be named as administrator of the estate.

(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.

EXECUTOR'S COMMISSIONS

Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.

However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated.

SALE OF REAL ESTATE AND OTHER PROPERTY

Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to

1) remove the executor

2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent

3) compel the appraisal of the home and, thereafter, the sale of the property

4) make the executor reimburse the estate for the neglect or waste of assets.

CONCLUSION

As a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney.

Portions published in “Compelling an Accounting and Removing the Executor of an Estate NJ Law Journal October, 2010

reprinted in The Middlesex Advocate December, 2010

Party overcame the presumptions of undue influence with respect to both the Will IN THE MATTER OF THE ESTATE OF HARRIET ALEXANDRA SYDLAR, DECEASED.

2011-01-17T20:05:00.000-08:00

Party overcame the presumptions of undue influence with respect to both the Will IN THE MATTER OF THE ESTATE

OF HARRIET ALEXANDRA SYDLAR,

DECEASED. DOCKET NO. A-1467-09T2

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

______________________________

December 13, 2010

Before Judges Cuff, Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County, Docket No. 297104.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

In this probate matter, appellants Eileen Amato and Dianne Sydlar, the children of the decedent Harriet Sydlar (Harriet),¹ appeal from the October 16, 2009 Chancery Division judgment, entered after the trial judge found they failed to prove that Harriet's granddaughter, respondent Krystalle-Leigh Bacia (Bacia), exerted undue influence in Harriet's execution of a Last Will and Testament (the Will) and in inter vivos transfers of real and personal property to Bacia. We affirm in part, reverse in part, and remand for further proceedings.

Shortly before her death, Harriet executed the Will bequeathing nearly her entire estate to Bacia and nominal sums to appellants and other family members. Harriet also made inter vivos transfers through the creation of a joint tenant account and transfer of real property to Bacia. Appellants alleged that Bacia exerted undue influence on Harriet to execute the Will and make the inter vivos transfers.²

After a three-day bench trial, the judge found that appellants were entitled to a presumption of undue influence, stating as follows:

I am satisfied and so find that the totality of the proof presently before the court clearly establishes a confidential relationship between Harriet and [Bacia] beyond the mere per se [relationship] and that there are some additional circumstances of an arguably "suspicious" character which, at the very least, require explanation so that the [appellants] are initially entitled to a "presumption" of undue influence and the shifting of the burden of coming forward with proof to rebut the presumption to [Bacia].

After finding appellants' testimony not credible, the judge seemed to apply a preponderance of the evidence standard in concluding that Bacia overcame the presumptions of undue influence with respect to both the Will and the inter vivos transfers.

The judge also concluded that the parties were entitled to an award of counsel fees payable from the Estate's corpus. He entered an order on October 16, 2009, memorializing his decision. This appeal followed. Subsequently, the court entered two orders on January 6, 2010, declaring the Estate insolvent and denying the parties' fee applications.

On appeal, appellants contend that (1) the judge erred in failing to apply the clear and convincing standard of proof to the inter vivos transfers; (2) the clear and convincing standard of proof should apply to the rebuttal of the presumption of undue influence as to the Will due to an attorney conflict of interest and evidence of suspicious circumstances; (3) the evidence did not support the finding that Bacia overcame the presumption of undue influence by a preponderance of the evidence; and (4) the judge misinterpreted the shifting burdens of proof in Will contests.³

A trial judge's findings on the issue of undue influence "are entitled to great weight [because] the trial court had the opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony." In re Will of Livingston, 5 N.J. 65, 78 (1950). "Such factual findings should not be disturbed unless they are so manifestly unsupported or inconsistent with the competent, reasonably credible evidence so as to offend the interests of justice." In re Will of Liebl, 260 N.J. Super. 519, 524 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993).

Applying these standards, in light of the record and applicable legal principles, we conclude that appellants' second, third and fourth contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the trial judge in his well-reasoned oral opinion rendered on October 6, 2009, and memorialized in the October 16, 2009 order. However, because the judge ostensibly applied a preponderance-of-the-evidence standard to Bacia's rebuttal of the presumption of undue influence vis-à-vis the inter vivos transfers, we address appellants' first contention.

It is generally presumed that a testator is of sound mind to execute a will. Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981). That presumption can be overcome, however, upon a showing of undue influence, which is "defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Id. at 176 (quoting In re Estate of Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943). The burden of proving undue influence normally lies with the party contesting the will. Ibid. If, however, (1) "'the will benefits one who stood in a confidential relationship to the testat[or] and [(2)] there are additional circumstances of a suspicious character present which require explanation'," undue influence is presumed, and the will proponent must overcome this presumption by a preponderance of the evidence. Id. at 176-78 (quoting In re Will of Rittenhouse, 19 N.J. 376, 378-79 (1955)).⁴

Inter vivos transfers may also be subjected to undue influence analysis. Pascale v. Pascale, 113 N.J. 20, 29-31 (1988). "In respect of an inter vivos gift, a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor, . . . or when a confidential relationship exists between the donor and donee[.]" Id. at 30 (citing In re Dodge, 50 N.J. 192, 227 (1967); Mott v. Mott, 49 N.J. Eq. 192,198 (Ch. 1891)). The donee must overcome that presumption by clear and convincing evidence showing "not only that 'no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.'" Id. at 31 (quoting In re Dodge, supra, 50 N.J. at 227). The rationale behind the lower standard of proof to invoke the presumption and a concomitantly more demanding standard of proof to overcome it is the assumption that "'a living donor is not likely to give to another something that he or she can still enjoy.'" In re Estate of Mosery, 349 N.J. Super. 515, 522 (App. Div.) (quoting Pascale, supra, 113, N.J. at 31, certif. denied, 174 N.J. 191 (2002)).

Regarding joint bank accounts:

Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.

[N.J.S.A. 17:16I-5a.]

Notwithstanding this statutory presumption of survivorship rights, the creation of joint accounts is treated as an inter vivos transfer. See In re Estate of Penna, 322 N.J. Super. 417, 424-25 (App. Div. 1999); Bronson v. Bronson, 218 N.J. Super. 389, 392-95 (App. Div. 1987). Thus, "if the challenger can prove . . . that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence which the survivor donee must rebut by clear and convincing evidence." Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 401 (App. Div. 2007). The rationale for the higher burden of proof in cases of inter vivos transfers also applies to cases involving the creation of joint accounts. Bronson, supra, 218 N.J. Super. at 394-95.

Here, the trial judge found there was both a confidential relationship between Harriet and Bacia as well as suspicious circumstances warranting a presumption of undue influence. Thus, Bacia had to overcome the presumption by a preponderance of the evidence with respect to the Will, and by clear and convincing evidence with respect to the inter vivos transfers. Although the trial judge said he was "convinced" that Bacia had overcome the presumption, this is insufficient for us to conclude that Bacia met the clear and convincing standard as to the inter vivos transfers. Because there should be no doubt as to what standard the judge applied, we remand for a determination of whether the evidence is clear and convincing as to the inter vivos transfers.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 The decedent's two other children were not parties to the will contest.

2 Appellants had also claimed that Harriet lacked testamentary capacity but abandoned that claim.

3 We decline to address appellants' contention that they are entitled to counsel fees regardless of their success. The court entered the order denying counsel fees on January 6, 2010, after the filing of this appeal. Appellants did not file an amended or separate notice of appeal. Thus, the issue is not properly before us. Pressler & Verniero, Current N.J. Court Rules, comment 6.1 to R. 2:5-1(f)(1); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001).

4 A burden of clear and convincing evidence is appropriate in cases where an attorney benefits from the will of his or her client, In re Will of Davis, 14 N.J. 166, 169-70 (1953), or where "the testator's attorney has placed himself [or herself] in a conflict of interest and professional loyalty between the testator and the beneficiary." Haynes, supra, 87 N.J. at 182. Despite appellants' protestations to the contrary, we conclude that neither of those situations exist here.

Managing Estate Assets

2010-12-30T13:58:00.001-08:00

Managing Estate Assets

It is the fiduciarys responsibility to take control of all assets comprising an estate or trust. Especially when a fiduciary assumes office at the grantors or testators death, it is crucial to secure and value all assets as soon as possible. Some assets, such as brokerage accounts, may be accessed immediately; others, such as insurance, may have to be applied for by filing a claim. The usual practice is to engage a professional appraiser to value the decedents tangible property, such as household furniture, automobiles, jewelry, artwork, and collectibles. Depending on the nature and value of the property, this may be a routine activity, but you may need the services of a specialist appraiser if, for example, the decedent had rare or unusual items or was a serious collector. Real estate, whether it is a home or commercial property, and any business interests must also be valued. Besides providing a valuation for assets that may be reported on a court-required inventory or on the state or federal estate tax return, the appraisal can help the fiduciary to gauge whether the decedents insurance coverage on the assets is sufficient. Appropriate insurance should be maintained throughout the fiduciarys tenure. The fiduciary also must value financial assets, including bank and securities accounts.

2011 update Wills and Estate Planning- Free Seminar WHEN: Wednesday January 12, 2011 12:15-1:00 PM WHERE: Law Office of

2010-11-20T15:14:00.000-08:00

2011 update Wills and Estate Planning- Free Seminar

WHEN: Wednesday January 12, 2011 12:15-1:00 PM

WHERE: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, 2^nd floor, Edison, NJ 08817

Invited: Clients, CPA's, Financial Planners, Insurance Producers, Nursing Home Administrators, Hospital and Nursing Home Social Workers, Medicaid Workers, Office on Aging Personnel, Senior Club Presidents, and Accountants

Estate Planning Ideas for Professionals and People who advise Seniors

Middlesex County College charged $29.00 to attend this program. If you email back prior to December 31 you can attend for free.

COST: Free if you pre-register. This program is limited to 15 people

Complimentary Sandwiches to pre-registered persons at 12:00

SPEAKER: Kenneth Vercammen, Esq.

(Author- Answers to Questions About Probate)

The new 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. 2010 increases in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Question and Answer

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.

Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

Our NJ Probate Special Report Newsletter discussed increased duties of the Executor or Administrator. The email newsletter also discussed how the revised NJ Probate Law makes a number of substantial changes in Probate and the administration of estates and trusts in New Jersey. If you send us your e-mail address we can provide you with a Free report on the changes in the law which may affect you. We also recently established the NJ Elder Law blog at http://elder-law.blogspot.com.

Website www.njlaws.com now provides Legal Information on Probate and Elder Law.

Very truly yours,

KENNETH VERCAMMEN

Chair ABA Elder Law Committee, Solo & Small Firm Division

To attend or receive the Probate Special Report, email us at VercammenLaw@Njlaws.com or fax us your email address.

Fax 732-572-0030

We send the Special Report and newsletter via email only.

Email address: __________________________

http://www.kennethvercammen.com/2011.update.Wills.html

Wills and Estate Planning for Boilermakers

2010-10-05T04:39:00.000-07:00

Wills and Estate Planning for Boilermakers

By Kenneth Vercammen, Esq.

As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian. National statistics indicate that more than 50% of Americans die without leaving a Will.

Where there’s No Will …

The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Your assets go to whoever a state law says receives the assets, or to the government itself! A Will should be a statement to the things you truly care about: your spouse, your children, your parents, your friends, and your charities.

If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get your assets.

2. State law determines who gets assets, not you

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.

6. If you have no spouse or close relatives the State may take your property

7. The procedure to distribute assets becomes more complicated

8. It probably will cause fights and lawsuits within your family

When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns. A Will must not only be prepared within the legal requirements of the state Statutes but should also be prepared so it leaves no questions regarding your intentions.

Think- Who don’t you want to receive your assets? Without a Will, they could receive your assets and request custody of children.

Who is not the best choice to raise your children, or safeguard your children's money for college? Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play games?

Life Insurance

Sometimes it is not wise to leave children as a beneficiary of life insurance and your pension if your children are under the age of 21. You could make your estate the beneficiary of life insurance, and pension, then direct in your Will that the money be used to provide support and college expense for children.

The Will setting up a trust for minors should provide that any portion of my residuary estate which becomes distributable to a beneficiary under the age of twenty-one (21) years shall be held as a separate trust by the Executor until such beneficiary attains the age of twenty-one (21) years. The Executor shall apply such amounts of income and principal as he, in his sole discretion, deems proper for the health, maintenance, education, welfare, or support of such beneficiary and shall accumulate any unexpended income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of twenty-one (21) years. Prior to their attaining the age of twenty-one (21) years, the Executor may apply such income or principal for benefit of such beneficiary directly or by payment to the person with whom such beneficiary resides or who has the care or control of such beneficiary without the intervention of a guardian.

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH KENNETH VERCAMMEN’S LAW OFFICE OFTEN INCLUDES 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

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

* Changes in who you like

MAY I CHANGE MY CURRENT 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.

A portion of your Will and Estate Planning can be deducted on your income tax return when it deals with tax planning. Thus, part of the fee is tax deductible for income tax purposes.

Under the law in New Jersey, if a person dies without a Will and without children, their spouse will inherit all assets, even if they are separated from the spouse. In addition, if you have children from a previous marriage, but no Will, the separated spouse will get half the estate.

SAVE MONEY- Have your attorney prepare a self- proving Will with a No bond clause

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

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.

Be sure your Will takes into account the 2010 Federal Tax changes and any Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.

OTHER DOCUMENTS TO BE PREPARED BY YOUR ATTORNEY

-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

-Trusts (and Medicaid Trusts)

CONCLUSION

Planning can only be done if someone is competent and/or alive. Make sure your assets can be passed directly to your loved ones. 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

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com

Wills and Estate Planning for Building and Construction Trade Workers

2010-10-05T04:27:00.000-07:00

Wills and Estate Planning for Building and Construction Trade Workers

By Kenneth Vercammen, Esq.

As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian. National statistics indicate that more than 50% of Americans die without leaving a Will.

Where there’s No Will …

The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Your assets go to whoever a state law says receives the assets, or to the government itself! A Will should be a statement to the things you truly care about: your spouse, your children, your parents, your friends, and your charities.

If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get your assets.

2. State law determines who gets assets, not you

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.

6. If you have no spouse or close relatives the State may take your property

7. The procedure to distribute assets becomes more complicated

8. It probably will cause fights and lawsuits within your family

When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns. A Will must not only be prepared within the legal requirements of the state Statutes but should also be prepared so it leaves no questions regarding your intentions.

Think- Who don’t you want to receive your assets? Without a Will, they could receive your assets and request custody of children.

Who is not the best choice to raise your children, or safeguard your children's money for college? Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play games?

Life Insurance

Sometimes it is not wise to leave children as a beneficiary of life insurance and your pension if your children are under the age of 21. You could make your estate the beneficiary of life insurance, and pension, then direct in your Will that the money be used to provide support and college expense for children.

The Will setting up a trust for minors should provide that any portion of my residuary estate which becomes distributable to a beneficiary under the age of twenty-one (21) years shall be held as a separate trust by the Executor until such beneficiary attains the age of twenty-one (21) years. The Executor shall apply such amounts of income and principal as he, in his sole discretion, deems proper for the health, maintenance, education, welfare, or support of such beneficiary and shall accumulate any unexpended income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of twenty-one (21) years. Prior to their attaining the age of twenty-one (21) years, the Executor may apply such income or principal for benefit of such beneficiary directly or by payment to the person with whom such beneficiary resides or who has the care or control of such beneficiary without the intervention of a guardian.

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH KENNETH VERCAMMEN’S LAW OFFICE OFTEN INCLUDES 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

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

* Changes in who you like

MAY I CHANGE MY CURRENT 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.

A portion of your Will and Estate Planning can be deducted on your income tax return when it deals with tax planning. Thus, part of the fee is tax deductible for income tax purposes.

Under the law in New Jersey, if a person dies without a Will and without children, their spouse will inherit all assets, even if they are separated from the spouse. In addition, if you have children from a previous marriage, but no Will, the separated spouse will get half the estate.

SAVE MONEY- Have your attorney prepare a self- proving Will with a No bond clause

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

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.

Be sure your Will takes into account the 2010 Federal Tax changes and any Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.

OTHER DOCUMENTS TO BE PREPARED BY YOUR ATTORNEY

-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

-Trusts (and Medicaid Trusts)

CONCLUSION

Planning can only be done if someone is competent and/or alive. Make sure your assets can be passed directly to your loved ones. 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

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com

Wills and Estate Planning for Communications Workers

2010-10-05T04:24:00.003-07:00

Wills and Estate Planning for Communications Workers

By Kenneth Vercammen, Esq.

As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian. National statistics indicate that more than 50% of Americans die without leaving a Will.

Where there’s No Will …

The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Your assets go to whoever a state law says receives the assets, or to the government itself! A Will should be a statement to the things you truly care about: your spouse, your children, your parents, your friends, and your charities.

If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get your assets.

2. State law determines who gets assets, not you

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.

6. If you have no spouse or close relatives the State may take your property

7. The procedure to distribute assets becomes more complicated

8. It probably will cause fights and lawsuits within your family

When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns. A Will must not only be prepared within the legal requirements of the state Statutes but should also be prepared so it leaves no questions regarding your intentions.

Think- Who don’t you want to receive your assets? Without a Will, they could receive your assets and request custody of children.

Who is not the best choice to raise your children, or safeguard your children's money for college? Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play games?

Life Insurance

Sometimes it is not wise to leave children as a beneficiary of life insurance and your pension if your children are under the age of 21. You could make your estate the beneficiary of life insurance, and pension, then direct in your Will that the money be used to provide support and college expense for children.

The Will setting up a trust for minors should provide that any portion of my residuary estate which becomes distributable to a beneficiary under the age of twenty-one (21) years shall be held as a separate trust by the Executor until such beneficiary attains the age of twenty-one (21) years. The Executor shall apply such amounts of income and principal as he, in his sole discretion, deems proper for the health, maintenance, education, welfare, or support of such beneficiary and shall accumulate any unexpended income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of twenty-one (21) years. Prior to their attaining the age of twenty-one (21) years, the Executor may apply such income or principal for benefit of such beneficiary directly or by payment to the person with whom such beneficiary resides or who has the care or control of such beneficiary without the intervention of a guardian.

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH KENNETH VERCAMMEN’S LAW OFFICE OFTEN INCLUDES 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

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

* Changes in who you like

MAY I CHANGE MY CURRENT 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.

A portion of your Will and Estate Planning can be deducted on your income tax return when it deals with tax planning. Thus, part of the fee is tax deductible for income tax purposes.

Under the law in New Jersey, if a person dies without a Will and without children, their spouse will inherit all assets, even if they are separated from the spouse. In addition, if you have children from a previous marriage, but no Will, the separated spouse will get half the estate.

SAVE MONEY- Have your attorney prepare a self- proving Will with a No bond clause

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

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.

Be sure your Will takes into account the 2010 Federal Tax changes and any Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.

OTHER DOCUMENTS TO BE PREPARED BY YOUR ATTORNEY

-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

-Trusts (and Medicaid Trusts)

CONCLUSION

Planning can only be done if someone is competent and/or alive. Make sure your assets can be passed directly to your loved ones. 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

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com

Wills and Estate Planning for Communications Workers

2010-10-05T04:24:00.001-07:00

Wills and Estate Planning for Carpenters

2010-09-29T03:55:00.001-07:00

Wills and Estate Planning for Carpenters

By Kenneth Vercammen, Esq.

Where there’s No Will …

If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get your assets.

2. State law determines who gets assets, not you

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.

6. If you have no spouse or close relatives the State may take your property

7. The procedure to distribute assets becomes more complicated

8. It probably will cause fights and lawsuits within your family

Think- Who don’t you want to receive your assets? Without a Will, they could receive your assets and request custody of children.

Life Insurance

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH KENNETH VERCAMMEN’S LAW OFFICE OFTEN INCLUDES 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

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

* Changes in who you like

MAY I CHANGE MY CURRENT WILL?

A portion of your Will and Estate Planning can be deducted on your income tax return when it deals with tax planning. Thus, part of the fee is tax deductible for income tax purposes.

SAVE MONEY- Have your attorney prepare a self- proving Will with a No bond clause

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.

OTHER DOCUMENTS TO BE PREPARED BY YOUR ATTORNEY

-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

-Trusts (and Medicaid Trusts)

CONCLUSION

Call our office to schedule a confidential appointment 732-572-0500

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com