Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you.
ALL THE PAGES AND SECTIONS OF THIS FORM MUST BE COMPLETED PRIOR TO SEEING THE ATTORNEY. WRITE YOUR SPECIFIC QUESTIONS AT THE END OF THE LAST PAGE. PLEASE HELP YOURSELF TO THE FREE INFORMATION BROCHURES IN THE RECEPTION AREA.
PLEASE PRINT CLEARLY
Your Full Name: [Person Filling out Form]
______________________________________________________
First Last
Street Address: ________________________________________
City ____________________ State ____ Zip Code _____________
Telephone Numbers: Cell: __________________________________
Day: ____________________ /Night: ________________________
E-mail address: __________________________________________
Referred By: ___________________________________________
Today's Date ___________________________________________
1. Name of person planning for if other than person filling out this interview sheet:
____________________________________________________________
2. Current address and phone for person whom Estate Planning is sought:
____________________________________________________________
____________________________________________________________
3. Relationship of person filling out this interview sheet:
____________________________________________________________
4. Special medical or financial needs of person, spouse and dependents:
____________________________________________________________
____________________________________________________________
____________________________________________________________
ASSETS
5. Stocks, bonds and other securities. How Registered. Approximate Amount of Each. (Joint - Survivorship - P.O.D. - Trust - Custodial)
____________________________________________________________
____________________________________________________________
____________________________________________________________
6. Real Estate: Location and General Description - Record Owners -
How and When Acquired
Estimated Value - Mortgages, Approximate Amount of Each:
____________________________________________________________
____________________________________________________________
____________________________________________________________
7. Insurance policies, pensions, retirement and death benefits:
(Identification and beneficiary)
COMPANY AMOUNT OF POLICY BENEFICIARY
____________________________________________________________
____________________________________________________________
____________________________________________________________
8. Bank and Savings & Loan Association Accounts: Savings - Time Cert. - Checking - other. How registered (Joint, Survivorship, Trust, Custodial)
BANK APPROXIMATE AMOUNT BENEFICIARY
____________________________________________________________
____________________________________________________________
____________________________________________________________
9. Major Personal Effects: Including Furs, Jewelry, Art, Cash on Hand and other items of Substantial Value and the Approximate Amount of Each:
____________________________________________________________
____________________________________________________________
____________________________________________________________
10. Other Investments: Nature and in What Names(s) Held and the Approximate Amount of Each:
____________________________________________________________
____________________________________________________________
____________________________________________________________
11. Safe Deposit Box: Location and How Registered:
____________________________________________________________
___________________________________________________________
12. Liabilities More Than $2,000.00: ____________________________________________________________
____________________________________________________________
____________________________________________________________
13. Estimated Gross Estate:
$_________________________________________________________
14. A. Is there a Will? _____ Did you bring a photocopy? ____
B. Is there a Power of Attorney? _____ Did you bring a copy? ____
C. Do You Have a Copy of the Deed? ________
D. Did You have/ bring a List of Assets.
15. PLEASE USE THIS PAGE TO WRITE YOUR SPECIFIC QUESTIONS FOR THE ATTORNEY:
____________________________________________________________
____________________________________________________________
____________________________________________________________
ESTATE PLANNING
The estate may be subject to Federal Estate Taxation if the total of assets exceeds $200,000. If the assets exceed $2,000,000 and you desire estate planning to avoid or reduce your estate tax or require a Trust to protect a spouse, please advise Mr. Vercammen. A Standard Will is not designed to address estate tax issues. We do not do Tax Planning or Medicaid Planning.
Monday, October 20, 2008
Elective Share of Spouse
FREQUENTLY ASKED QUESTIONS - NEW JERSEY EDITION
QUESTION #71: What is my share of my spouse's estate if I elect to take against the will of my deceased spouse?
In general, a surviving spouse dissatisfied with his or her share under the will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testatorís entire estate. The surviving spouse is entitled to one-third of the estate provided that at the time of death, the surviving spouse and decedent had not been living separate and apart in different habitations. Generally, the surviving spouse must elect to take his/her elective share by filing a complaint within six months after the appointment of a personal representative of the decedent's estate.
Whether to elect to take against a will is a decision that cannot be made without comprehensive information regarding the affairs of the spouses. This is not a matter for self-help and referral to an attorney familiar with estate administration is normally required.
What is my share of my spouse's estate if I elect to take against the will of my deceased spouse?
In general, a surviving spouse dissatisfied with his or her share under the will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testator's entire estate. The surviving spouse is entitled to one-third of the estate provided that at the time of death, the surviving spouse and decedent had not been living separate and apart in different habitations. Generally, the surviving spouse must elect to take his/her elective share by filing a complaint within six months after the appointment of a personal representative of the decedent's estate.
Whether to elect to take against a will is a decision that cannot be made without comprehensive information regarding the affairs of the spouses. This is not a matter for self-help and referral to an attorney familiar with estate administration is normally required.
The following is the revised New Jersey Law on Elective share of surviving spouse
NJSA 3B:8-1 Elective share of surviving spouse
3B:8-1 Elective share of surviving spouse or domestic partner of person dying domiciled in this State; conditions.
If a married person or person in a domestic partnership dies domiciled in this State, on or after May 28, 1980, the surviving spouse or domestic partner has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.
Amended 2005, c.331, s.7.
3B:8-2. Elective share of surviving spouse or domestic partner of person dying not domiciled in this State.
If a married person or person in a domestic partnership not domiciled in this State dies, the right, if any, of the surviving spouse or domestic partner to take an elective share in property in this State is governed by the law of the decedent's domicile at death.
Amended 2005, c.331, s.8.
3B:8-3. Meaning of "augmented estate."
The "augmented estate" means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money's worth for the transfer, if the transfer is of any of the following types:
a. Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;
b. Any transfer made after May 28, 1980, to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;
c. Any transfer made after May 28, 1980, whereby property is held at the time of decedent's death by decedent and another with right of survivorship;
d. Any transfer made, after May 28, 1980, if made within 2 years of death of the decedent, to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.00.
Amended 2005, c.331, s.9.
3B:8-4. Valuing property transferred
Property transferred in the manner set forth in N.J.S. 3B:8-3 is valued as of the decedent's death except that property given irrevocably to a donee during the lifetime of the decedent is valued as of the date the donee came into possession or enjoyment of the property if that occurs first.
3B:8-5. Transfers excluded.
Any transfer of property shall be excluded from the augmented estate under N.J.S. 3B:8-3, if made with the written consent or joinder of the surviving spouse or domestic partner. There shall also be excluded from the augmented estate any life insurance, accident insurance, joint annuity or pension payable to a person other than the surviving spouse or domestic partner.
Amended 2005, c.331, s.10.
3B:8-6. Other property to be included in augmented estate.
There shall also be included in the augmented estate:
a. The value of property owned by the surviving spouse or domestic partner at the time of, or as a result of, the decedent's death to the extent that the property is derived from the decedent by means other than by testate or intestate succession without a full consideration in money or money's worth; and
b. The value of the property described in subsection a. hereof which has been transferred by the surviving spouse or domestic partner at any time during marriage or domestic partnership without a full consideration in money or money's worth to any person other than the decedent which would have been includable in the spouse's or domestic partner's augmented estate if the surviving spouse or domestic partner had predeceased the decedent.
Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.
Amended 2005, c.331, s.11.
3B:8-7. Property derived from decedent.
For the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse or domestic partner in a trust created by the decedent during his lifetime, any property appointed to the spouse or domestic partner by the decedent's exercise of a general or special power of appointment also exercisable in favor of others than the spouse or domestic partner, any proceeds of insurance, including accidental death benefits on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, the value of the share of the surviving spouse or domestic partner resulting from rights in community property acquired in any other state formerly owned with the decedent and the value of any rights of dower and curtesy. Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.
Amended 2005, c.331, s.12.
3B:8-8. Valuation of property derived from decedent.
For the purposes of valuing property derived from the decedent as provided in N.J.S. 3B:8-6:
a. Property owned by the spouse or domestic partner at the decedent's death is valued as of the date of decedent's death; and
b. Property transferred by the spouse or domestic partner is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurs first.
Amended 2005, c.331, s.13.
3B:8-9. Presumption as to property owned or previously transferred by spouse or domestic partner at decedent's death.
Property owned by the surviving spouse or domestic partner as of the decedent's death, or previously transferred by the surviving spouse or domestic partner, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.
Amended 2005, c.331, s.14.
3B:8-10. Waiving right to an elective share.
The right of election of a surviving spouse or domestic partner and the rights of the surviving spouse or domestic partner may be waived, wholly or partially, before or after marriage before, on or after May 28, 1980, by a written contract, agreement or waiver, signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or prospective spouse or domestic partner or a complete property settlement entered into after or in anticipation of separation, divorce or termination of a domestic partnership is a waiver of all rights to an elective share by each spouse or domestic partner in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
Amended 2005, c.331, s.15.
3B:8-11. Who may exercise the right to take an elective share.
The right of election to take an elective share by a surviving spouse or domestic partner may be exercised only during his lifetime. In the case of a surviving spouse or domestic partner for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse or domestic partner during his probable life expectancy.
Amended 2005, c.331, s.16.
3B:8-12. Filing complaint for elective share; extension of time.
The surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent's estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.
Amended 2005, c.331, s.17.
3B:8-13. Notice of hearing.
The surviving spouse or domestic partner shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.
Amended 2005, c.331, s.18.
3B:8-14 Withdrawal of demand for an elective share.
The surviving spouse or domestic partner may withdraw his demand for an elective share at any time before entry of a final judgment by the court.
Amended 2005, c.331, s.19.
3B:8-15. Fixing amount of elective share; payment of elective share
The court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate in the manner as hereinafter set forth in this chapter. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
3B:8-16. Enforcing judgment
The judgment of the court made pursuant to N.J.S. 3B:8-15 may be enforced as other judgments are enforced by law.
3B:8-17. Value of surviving spouse's or domestic partner's interest in any life estate.
3B:8-17. Value of surviving spouse's or domestic partner's interest in any life estate.
In an action for an elective share, the electing spouse's or domestic partner's total or proportional beneficial interest in any life estate in real or personal property or in any trust shall be valued at one-half of the total value of the property or trust or of the portion of the property or trust subject to the life estate.
Amended 2005, c.331, s.20.
3B:8-18. Satisfaction of elective share.
The amount of the surviving spouse's or domestic partner's elective share shall be satisfied by applying:
a. The value of all property, estate or interest therein, owned by the surviving spouse or domestic partner in his own right at the time of the decedent's death from whatever source acquired, or succeeded to by the surviving spouse or domestic partner as a result of decedent's death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse or domestic partner as the result of decedent's death has been renounced by the surviving spouse or domestic partner;
b. The value of the property described in subsection b. of N.J.S. 3B:8-6, and
c. The remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse or domestic partner is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.
Amended 2005, c.331, s.21.
3B:8-19. Persons subject to contribution.
Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse or domestic partner. A person liable to contribution may choose to give up the property transferred to him or to pay its value as fixed in the manner provided in N.J.S. 3B:8-4.
Amended 2005, c.331, s.22.
QUESTION #71: What is my share of my spouse's estate if I elect to take against the will of my deceased spouse?
In general, a surviving spouse dissatisfied with his or her share under the will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testatorís entire estate. The surviving spouse is entitled to one-third of the estate provided that at the time of death, the surviving spouse and decedent had not been living separate and apart in different habitations. Generally, the surviving spouse must elect to take his/her elective share by filing a complaint within six months after the appointment of a personal representative of the decedent's estate.
Whether to elect to take against a will is a decision that cannot be made without comprehensive information regarding the affairs of the spouses. This is not a matter for self-help and referral to an attorney familiar with estate administration is normally required.
What is my share of my spouse's estate if I elect to take against the will of my deceased spouse?
In general, a surviving spouse dissatisfied with his or her share under the will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testator's entire estate. The surviving spouse is entitled to one-third of the estate provided that at the time of death, the surviving spouse and decedent had not been living separate and apart in different habitations. Generally, the surviving spouse must elect to take his/her elective share by filing a complaint within six months after the appointment of a personal representative of the decedent's estate.
Whether to elect to take against a will is a decision that cannot be made without comprehensive information regarding the affairs of the spouses. This is not a matter for self-help and referral to an attorney familiar with estate administration is normally required.
The following is the revised New Jersey Law on Elective share of surviving spouse
NJSA 3B:8-1 Elective share of surviving spouse
3B:8-1 Elective share of surviving spouse or domestic partner of person dying domiciled in this State; conditions.
If a married person or person in a domestic partnership dies domiciled in this State, on or after May 28, 1980, the surviving spouse or domestic partner has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.
Amended 2005, c.331, s.7.
3B:8-2. Elective share of surviving spouse or domestic partner of person dying not domiciled in this State.
If a married person or person in a domestic partnership not domiciled in this State dies, the right, if any, of the surviving spouse or domestic partner to take an elective share in property in this State is governed by the law of the decedent's domicile at death.
Amended 2005, c.331, s.8.
3B:8-3. Meaning of "augmented estate."
The "augmented estate" means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money's worth for the transfer, if the transfer is of any of the following types:
a. Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;
b. Any transfer made after May 28, 1980, to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;
c. Any transfer made after May 28, 1980, whereby property is held at the time of decedent's death by decedent and another with right of survivorship;
d. Any transfer made, after May 28, 1980, if made within 2 years of death of the decedent, to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.00.
Amended 2005, c.331, s.9.
3B:8-4. Valuing property transferred
Property transferred in the manner set forth in N.J.S. 3B:8-3 is valued as of the decedent's death except that property given irrevocably to a donee during the lifetime of the decedent is valued as of the date the donee came into possession or enjoyment of the property if that occurs first.
3B:8-5. Transfers excluded.
Any transfer of property shall be excluded from the augmented estate under N.J.S. 3B:8-3, if made with the written consent or joinder of the surviving spouse or domestic partner. There shall also be excluded from the augmented estate any life insurance, accident insurance, joint annuity or pension payable to a person other than the surviving spouse or domestic partner.
Amended 2005, c.331, s.10.
3B:8-6. Other property to be included in augmented estate.
There shall also be included in the augmented estate:
a. The value of property owned by the surviving spouse or domestic partner at the time of, or as a result of, the decedent's death to the extent that the property is derived from the decedent by means other than by testate or intestate succession without a full consideration in money or money's worth; and
b. The value of the property described in subsection a. hereof which has been transferred by the surviving spouse or domestic partner at any time during marriage or domestic partnership without a full consideration in money or money's worth to any person other than the decedent which would have been includable in the spouse's or domestic partner's augmented estate if the surviving spouse or domestic partner had predeceased the decedent.
Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.
Amended 2005, c.331, s.11.
3B:8-7. Property derived from decedent.
For the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse or domestic partner in a trust created by the decedent during his lifetime, any property appointed to the spouse or domestic partner by the decedent's exercise of a general or special power of appointment also exercisable in favor of others than the spouse or domestic partner, any proceeds of insurance, including accidental death benefits on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, the value of the share of the surviving spouse or domestic partner resulting from rights in community property acquired in any other state formerly owned with the decedent and the value of any rights of dower and curtesy. Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.
Amended 2005, c.331, s.12.
3B:8-8. Valuation of property derived from decedent.
For the purposes of valuing property derived from the decedent as provided in N.J.S. 3B:8-6:
a. Property owned by the spouse or domestic partner at the decedent's death is valued as of the date of decedent's death; and
b. Property transferred by the spouse or domestic partner is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurs first.
Amended 2005, c.331, s.13.
3B:8-9. Presumption as to property owned or previously transferred by spouse or domestic partner at decedent's death.
Property owned by the surviving spouse or domestic partner as of the decedent's death, or previously transferred by the surviving spouse or domestic partner, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.
Amended 2005, c.331, s.14.
3B:8-10. Waiving right to an elective share.
The right of election of a surviving spouse or domestic partner and the rights of the surviving spouse or domestic partner may be waived, wholly or partially, before or after marriage before, on or after May 28, 1980, by a written contract, agreement or waiver, signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or prospective spouse or domestic partner or a complete property settlement entered into after or in anticipation of separation, divorce or termination of a domestic partnership is a waiver of all rights to an elective share by each spouse or domestic partner in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
Amended 2005, c.331, s.15.
3B:8-11. Who may exercise the right to take an elective share.
The right of election to take an elective share by a surviving spouse or domestic partner may be exercised only during his lifetime. In the case of a surviving spouse or domestic partner for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse or domestic partner during his probable life expectancy.
Amended 2005, c.331, s.16.
3B:8-12. Filing complaint for elective share; extension of time.
The surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent's estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.
Amended 2005, c.331, s.17.
3B:8-13. Notice of hearing.
The surviving spouse or domestic partner shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.
Amended 2005, c.331, s.18.
3B:8-14 Withdrawal of demand for an elective share.
The surviving spouse or domestic partner may withdraw his demand for an elective share at any time before entry of a final judgment by the court.
Amended 2005, c.331, s.19.
3B:8-15. Fixing amount of elective share; payment of elective share
The court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate in the manner as hereinafter set forth in this chapter. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
3B:8-16. Enforcing judgment
The judgment of the court made pursuant to N.J.S. 3B:8-15 may be enforced as other judgments are enforced by law.
3B:8-17. Value of surviving spouse's or domestic partner's interest in any life estate.
3B:8-17. Value of surviving spouse's or domestic partner's interest in any life estate.
In an action for an elective share, the electing spouse's or domestic partner's total or proportional beneficial interest in any life estate in real or personal property or in any trust shall be valued at one-half of the total value of the property or trust or of the portion of the property or trust subject to the life estate.
Amended 2005, c.331, s.20.
3B:8-18. Satisfaction of elective share.
The amount of the surviving spouse's or domestic partner's elective share shall be satisfied by applying:
a. The value of all property, estate or interest therein, owned by the surviving spouse or domestic partner in his own right at the time of the decedent's death from whatever source acquired, or succeeded to by the surviving spouse or domestic partner as a result of decedent's death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse or domestic partner as the result of decedent's death has been renounced by the surviving spouse or domestic partner;
b. The value of the property described in subsection b. of N.J.S. 3B:8-6, and
c. The remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse or domestic partner is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.
Amended 2005, c.331, s.21.
3B:8-19. Persons subject to contribution.
Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse or domestic partner. A person liable to contribution may choose to give up the property transferred to him or to pay its value as fixed in the manner provided in N.J.S. 3B:8-4.
Amended 2005, c.331, s.22.
COMPELLING THE SALE OF JOINTLY OWNED HOUSES, THE PARTITION SUIT
As times change, often people buying houses are not the traditional husband and wife couple. Mortgage companies are now usually willing to grant mortgage to boyfriend-girlfriend relationships or gay couples. However, if there is a breakup of relationships, a divorce complaint cannot be filed to compel the sale or division of assets. Instead, a partition suit can be filed in the Superior Court-Chancery Division - General Equity.
The partition suit originated from the English common law. Centuries ago, most property simply were farms. If co-owners could not voluntarily agree on a buy-out, or sole ownership, the Chancellor (an English Judge) could simply order the property/farms divided, or partitioned down the middle. In modern days, houses, condos and most land cannot be divided down the middle. Therefore, in a partition suit, the Superior Court Judge is usually asked to order the house sold and net proceeds divided.
A partition suit is usually started by having your attorney file a verified complaint for partition, signed by both you and the attorney. In addition, an Order to Show Cause is filed. This is a proposed order to be signed by the judge, compelling the defendant / the property owner to appear with their attorney and answer why the court should not award the relief requested with the original complaint. The defendant is also provided with time to file an answer plus counter-claim.
When there are issues other than an equal division of real property, the property owner, through their attorney, may conduct discovery. The three main methods of discovery under the New Jersey court rules are:
1) Interrogatories
2) Request for documents and
3) Deposition-which is live questioning under oath in front of a court reporter.
In partition suits, financial records may have to be produced to the court indicating who paid for household improvements, mortgage payments, taxes, utilities, etc. It is important to keep accurate records. If you don't have records, you will have to recreate records. Partition suits are often similar to divorce cases in which the parties have deep emotional feelings. However, often the bottom line is money. How much will be left after mortgage, taxes and any lien are satisfied is really the main issue.
Partition actions in New Jersey are governed by NJSA 2A:56-1:
2A:56-1. "Cotenant" ; executor or administrator with will annexed; definition and construction
As used in this chapter:
"Court" means the superior court.
"Cotenant" means and includes a tenant in common, joint tenant or coparcener, but not a tenant by the entirety.
An executor or administrator with the will annexed, having, by the terms of the testator's will, power to sell any real estate or any undivided interest in any real estate of which his testator died seized, shall have the same power to bring an action to effect a partition of such real estate as such testator might have brought if living, and cotenant as used in this chapter shall include such an executor or administrator so far as may be requisite for such purposes.
2A:56-2. Partition through sale
The superior court may, in an action for the partition of real estate, direct the sale thereof if it appears that a partition thereof cannot be made without great prejudice to the owners, or persons interested therein.
2A:56-3. Division of part of real estate and sale of residue
In any action for partition in the superior court, part of the real estate included in the application may be divided and the remainder sold when it appears by the report of the commissioner or commissioners, which shall designate the lands to be divided and those to be sold, and by other satisfactory evidence that the whole of the real estate cannot be divided among the owners and proprietors without great prejudice to their interest.
Court Rule 4:63-1. permits courts to order the Sale of a property.
Rule 4:63-1- Partition; Dower; Curtesy
If in an action for partition or for the admeasurement of dower or curtesy, the court shall be satisfied that a division of the real estate can be made without great prejudice to the owners thereof, it may appoint one or more persons as commissioners to ascertain and report in writing the metes and bounds of each share; if not so satisfied, it may direct a sale or, in its discretion, if the action is one for dower or curtesy, an assignment from the rents and profits.
Zudiak v Szuryk 93 NJ Eq. 559, 561 (Chan 1922) established the power of the Court to order the sale of land if actual partition cannot be made.
Many counties in New Jersey have set up mediation panels to attempt to help parties resolve issues and avoid trials. The mediators are licensed attorneys volunteering their time to help the superior court. Most cases settle without an expensive lengthy trial. Hopefully, parties can put their emotional feelings aside, cut their court costs and settle without a trial.
The partition suit originated from the English common law. Centuries ago, most property simply were farms. If co-owners could not voluntarily agree on a buy-out, or sole ownership, the Chancellor (an English Judge) could simply order the property/farms divided, or partitioned down the middle. In modern days, houses, condos and most land cannot be divided down the middle. Therefore, in a partition suit, the Superior Court Judge is usually asked to order the house sold and net proceeds divided.
A partition suit is usually started by having your attorney file a verified complaint for partition, signed by both you and the attorney. In addition, an Order to Show Cause is filed. This is a proposed order to be signed by the judge, compelling the defendant / the property owner to appear with their attorney and answer why the court should not award the relief requested with the original complaint. The defendant is also provided with time to file an answer plus counter-claim.
When there are issues other than an equal division of real property, the property owner, through their attorney, may conduct discovery. The three main methods of discovery under the New Jersey court rules are:
1) Interrogatories
2) Request for documents and
3) Deposition-which is live questioning under oath in front of a court reporter.
In partition suits, financial records may have to be produced to the court indicating who paid for household improvements, mortgage payments, taxes, utilities, etc. It is important to keep accurate records. If you don't have records, you will have to recreate records. Partition suits are often similar to divorce cases in which the parties have deep emotional feelings. However, often the bottom line is money. How much will be left after mortgage, taxes and any lien are satisfied is really the main issue.
Partition actions in New Jersey are governed by NJSA 2A:56-1:
2A:56-1. "Cotenant" ; executor or administrator with will annexed; definition and construction
As used in this chapter:
"Court" means the superior court.
"Cotenant" means and includes a tenant in common, joint tenant or coparcener, but not a tenant by the entirety.
An executor or administrator with the will annexed, having, by the terms of the testator's will, power to sell any real estate or any undivided interest in any real estate of which his testator died seized, shall have the same power to bring an action to effect a partition of such real estate as such testator might have brought if living, and cotenant as used in this chapter shall include such an executor or administrator so far as may be requisite for such purposes.
2A:56-2. Partition through sale
The superior court may, in an action for the partition of real estate, direct the sale thereof if it appears that a partition thereof cannot be made without great prejudice to the owners, or persons interested therein.
2A:56-3. Division of part of real estate and sale of residue
In any action for partition in the superior court, part of the real estate included in the application may be divided and the remainder sold when it appears by the report of the commissioner or commissioners, which shall designate the lands to be divided and those to be sold, and by other satisfactory evidence that the whole of the real estate cannot be divided among the owners and proprietors without great prejudice to their interest.
Court Rule 4:63-1. permits courts to order the Sale of a property.
Rule 4:63-1- Partition; Dower; Curtesy
If in an action for partition or for the admeasurement of dower or curtesy, the court shall be satisfied that a division of the real estate can be made without great prejudice to the owners thereof, it may appoint one or more persons as commissioners to ascertain and report in writing the metes and bounds of each share; if not so satisfied, it may direct a sale or, in its discretion, if the action is one for dower or curtesy, an assignment from the rents and profits.
Zudiak v Szuryk 93 NJ Eq. 559, 561 (Chan 1922) established the power of the Court to order the sale of land if actual partition cannot be made.
Many counties in New Jersey have set up mediation panels to attempt to help parties resolve issues and avoid trials. The mediators are licensed attorneys volunteering their time to help the superior court. Most cases settle without an expensive lengthy trial. Hopefully, parties can put their emotional feelings aside, cut their court costs and settle without a trial.
Codicil to a Will
FREQUENTLY ASKED QUESTIONS - NEW JERSEY EDITION
QUESTION #54: How can I change my will?
An individual can write a codicil to his or her will as long as the
codicil meets certain requirements. The codicil must be signed
and witnessed just as the original will was signed and witnessed. The
codicil should refer to original will by date and should be
attached to the original will. It is not recommended that an individual
attempt to draft a codicil. A codicil should only be drafted
by an attorney to insure that it will have its intended effect. If there
are numerous changes to the will, it is a good idea to have a
new will drawn up and executed.
QUESTION #54: How can I change my will?
An individual can write a codicil to his or her will as long as the
codicil meets certain requirements. The codicil must be signed
and witnessed just as the original will was signed and witnessed. The
codicil should refer to original will by date and should be
attached to the original will. It is not recommended that an individual
attempt to draft a codicil. A codicil should only be drafted
by an attorney to insure that it will have its intended effect. If there
are numerous changes to the will, it is a good idea to have a
new will drawn up and executed.
RULE 4:80. APPLICATION TO SURROGATE'S COURT FOR PROBATE OR ADMINISTRATION
RULE 4:80. APPLICATION TO SURROGATE'S COURT FOR PROBATE OR ADMINISTRATION
4:80-1. Application
(a) Contents. Unless a complaint for probate is filed with the Superior Court pursuant to R. 4:83, an application for the probate of a will, for letters testamentary, letters of administration, letters of administration of non-resident estates in which administration has not been sought in the decedent's state of residence, letters of administration with the will annexed, letters of administration ad prosequendum, letters of substitutionary administration and letters of substitutionary administration with the will annexed shall be filed with the Surrogate's Court, stating: (1) the applicant's residence; (2) the name and date of death of the decedent, his or her domicile at date of death and date of the last will, if any, of decedent; (3) the names and addresses of the spouse, heirs, next of kin and other persons, if any, entitled to letters, and their relationships to decedent, and, to the best of the applicant's knowledge and belief, identifying any of them whose names or addresses are unknown and stating further that there are no other heirs and next of kin; (4) the ages of any minor heirs or minor next of kin; and in an application for probate of a will, whether the testator had issue living when the will was made, and whether he or she left any child born or adopted thereafter or any issue of such after-born or adopted child, and the names of after-born or adopted children since the date of the will, or their issue, if any. The applicant shall verify under oath that the statements are true to the best of the applicant's knowledge and belief.
(b) Certificates, Affidavits Accompanying the Application. Except in an application for substitutionary letters, the application shall be accompanied by a certificate of death or other competent proof thereof, unless for good cause dispensed with; and in all applications where a bond is required of the person applying for letters, the application shall be accompanied by an affidavit of the value of the personal estate.
(c) Filing. The application for the probate of a will or for letters of administration shall be filed with the Surrogate's Court of the county in which the decedent was domiciled at death, or if at that time the decedent was not domiciled in this State, then with the Surrogate's Court of any county in which the decedent left any property or into which any property belonging to the decedent's estate may have come.
(d) Recording. The application shall be recorded by the Surrogate's Court.
Note: Source-R.R. 4:99-1, 5:3-2; caption of rule, and text of paragraphs (a) and (b) amended, new paragraph (c) adopted, and former paragraph (c) redesignated as paragraph (d) and amended June 29, 1990 to be effective September 4, 1990; paragraph (a) amended June 28, 1996 to be effective September 1, 1996.
4:80-2. Proof of Will: Nonresident or Deceased Witnesses
(a) Depositions of Nonresident Witnesses. If any subscribing witness to a will of any person resident or nonresident in this State, at death resides or is out of the State, the Surrogate's Court may issue a commission with a photocopy of the will attached authorizing the taking of the deposition of the witness in the form of a witness-proof. The commission may be directed to any person before whom depositions may be taken under R. 4:12-2 and 4:12-3, or to the Surrogate or Deputy Surrogate of any county of this State, who shall take the proofs under oath and certify to the taking of the same.
(b) Deceased Witnesses. If all witnesses are deceased, the signature of each such witness may be proved by one person, and the same person may prove all signatures. Proof of death of the attesting witnesses may be made by affidavit without producing certified copies of death certificates.
Note: Source-R.R. 4:99-2, 5:4-2. Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended June 29, 1990 to be effective September 4, 1990.
4:80-3. Renunciation by or Notice to Next of Kin and Others
If the application for the letters specified in R. 4:80-1(a) (except letters testamentary) is made to the Surrogate's Court by the person first entitled thereto, no renunciation or notice shall be required; but if the application is made by any other person, the applicant shall file:
(a) The renunciation, acknowledged before an officer qualified to take acknowledgments of deeds, of all competent adult persons whose right to the letters is prior or equal to that of the applicant, containing a request that the letters issue according to the application; or
(b) proof that at least 10 days' notice of the application has been given to all such persons residing in this State who have not renounced, and that at least 60 days' notice, or such notice (not less than 10 days in length) as the Surrogate's Court by order may have directed, has been given to all of them who reside outside this State. If in an application for letters of administration with the will annexed, it appears that the decedent left a will naming an executor who has not renounced, proof shall be submitted showing that like notice has been given to the executor. In any case the Surrogate's Court may require the applicant to give notice to interested persons other than those entitled to letters. Such notice may be served either as prescribed by R. 4:4-4 or by registered or certified mail return receipt requested to the person's last known address. If the name or address of any such person entitled to notice is not known, then an affidavit of inquiry as to such name or address, made as prescribed by R. 4:4-5(c) shall be filed in lieu of proof of notice.
(c) In addition to the proofs required in paragraphs (a) and (b) of this rule, if the application for letters of administration shows that there are no known next of kin or knowledge thereof, the applicant shall file proof that at least 20 days' notice of the application has been given to the Attorney General of this State.
(d) All renunciations shall be recorded by the Surrogate's Court.
Note: Source-R.R. 4:99-3. Amended July 26, 1984 to be effective September 10, 1984; former caption and text of R. 4:80-3 deleted, introductory text and paragraphs (a), (b) and (c) of former R. 4:80-4 amended, paragraph (d) adopted, and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994.
4:80-4. Qualifications
Qualifications of executors and administrators shall be taken as provided in R. 4:96-1.
Note: New caption and text adopted June 29, 1990 to be effective September 4, 1990.
4:80-5. Residents Preferred Over Nonresidents
As between persons equally entitled, the Surrogate's Court in granting letters shall give preference to residents of this State over nonresidents, unless the best interest of the estate will not thereby be served.
Note: Source-R.R. 4:99-4. Amended July 26, 1984 to be effective September 10, 1984; amended June 29, 1990 to be effective September 4, 1990.
4:80-6. Notice of Probate of Will
Within 60 days after the date of the probate of a will, the personal representative shall cause to be mailed to all beneficiaries under the will and to all persons designated by R. 4:80-1(a)(3), at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request. Proof of mailing shall be filed with the Surrogate within 10 days thereof. If the names or addresses of any of those persons are not known, or cannot by reasonable inquiry be determined, then a notice of probate of the will shall be published in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate. If by the terms of the will property is devoted to a present or future charitable use or purpose, like notice and a copy of the will shall be mailed to the Attorney General.
Note: Source-R.R. 4:99-7; former R. 4:80-8 amended and rule redesignated June 29, 1990 to be effective September 4, 1990.
4:80-7. Use of Photostatic Copy Where Will Is Probated in Another State
If the will of a person resident in this State at death has been probated in another state or jurisdiction under the laws of which it cannot be removed therefrom or cannot remain in this State for permanent filing, a photocopy thereof attached and certified pursuant to Rule 902(d) of the Rules of Evidence (proof of official record) may be admitted to probate in lieu of the original will.
Note: Source-R.R. 4:99-10; former R. 4:80-11 amended and rule redesignated June 29, 1990 to be to be effective September 4, 1990; amended July 10, 1998 to be effective September 1, 1998.
[ 4:80-8. Notice to Creditors to Present Claims ] [deleted]
Note: Source – R.R. 4:114-1 (first and second sentence). Amended July 7, 1971 to be effective September 13, 1971; amended July 22, 1983 to be effective September 12, 1983; former R. 4:96-1 amended and rule redesignated as R. 4:80-8 June 29, 1990 to be effective September 4, 1990; R. 4:80-8 deleted July 27, 2006 to be effective September 1, 2006.
4:80-9. Testamentary Trustee
If a trustee is named in or pursuant to a will duly admitted to probate or a successor trustee under a will has been appointed, the trustee shall, before exercising the authority vested by the will or the appointment, accept the trusteeship as provided by R. 4:96-1. The acceptance shall recite the names and addresses of the trustees and the persons interested in the trust and shall identify their interests. Upon the filing of the acceptance and the power of attorney required by N.J.S.A. 3B:14-47, letters of trusteeship shall be issued by the Surrogate's Court. No application, judgment or order for the issuance of letters shall be required.
Note: Source-R.R. 4:100-1. Amended July 7, 1971 to be effective September 13, 1971; amended July 26, 1984 to be effective September 10, 1984; former R. 4:81-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; amended July 5, 2000 to be effective September 5, 2000.
4:80-1. Application
(a) Contents. Unless a complaint for probate is filed with the Superior Court pursuant to R. 4:83, an application for the probate of a will, for letters testamentary, letters of administration, letters of administration of non-resident estates in which administration has not been sought in the decedent's state of residence, letters of administration with the will annexed, letters of administration ad prosequendum, letters of substitutionary administration and letters of substitutionary administration with the will annexed shall be filed with the Surrogate's Court, stating: (1) the applicant's residence; (2) the name and date of death of the decedent, his or her domicile at date of death and date of the last will, if any, of decedent; (3) the names and addresses of the spouse, heirs, next of kin and other persons, if any, entitled to letters, and their relationships to decedent, and, to the best of the applicant's knowledge and belief, identifying any of them whose names or addresses are unknown and stating further that there are no other heirs and next of kin; (4) the ages of any minor heirs or minor next of kin; and in an application for probate of a will, whether the testator had issue living when the will was made, and whether he or she left any child born or adopted thereafter or any issue of such after-born or adopted child, and the names of after-born or adopted children since the date of the will, or their issue, if any. The applicant shall verify under oath that the statements are true to the best of the applicant's knowledge and belief.
(b) Certificates, Affidavits Accompanying the Application. Except in an application for substitutionary letters, the application shall be accompanied by a certificate of death or other competent proof thereof, unless for good cause dispensed with; and in all applications where a bond is required of the person applying for letters, the application shall be accompanied by an affidavit of the value of the personal estate.
(c) Filing. The application for the probate of a will or for letters of administration shall be filed with the Surrogate's Court of the county in which the decedent was domiciled at death, or if at that time the decedent was not domiciled in this State, then with the Surrogate's Court of any county in which the decedent left any property or into which any property belonging to the decedent's estate may have come.
(d) Recording. The application shall be recorded by the Surrogate's Court.
Note: Source-R.R. 4:99-1, 5:3-2; caption of rule, and text of paragraphs (a) and (b) amended, new paragraph (c) adopted, and former paragraph (c) redesignated as paragraph (d) and amended June 29, 1990 to be effective September 4, 1990; paragraph (a) amended June 28, 1996 to be effective September 1, 1996.
4:80-2. Proof of Will: Nonresident or Deceased Witnesses
(a) Depositions of Nonresident Witnesses. If any subscribing witness to a will of any person resident or nonresident in this State, at death resides or is out of the State, the Surrogate's Court may issue a commission with a photocopy of the will attached authorizing the taking of the deposition of the witness in the form of a witness-proof. The commission may be directed to any person before whom depositions may be taken under R. 4:12-2 and 4:12-3, or to the Surrogate or Deputy Surrogate of any county of this State, who shall take the proofs under oath and certify to the taking of the same.
(b) Deceased Witnesses. If all witnesses are deceased, the signature of each such witness may be proved by one person, and the same person may prove all signatures. Proof of death of the attesting witnesses may be made by affidavit without producing certified copies of death certificates.
Note: Source-R.R. 4:99-2, 5:4-2. Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended June 29, 1990 to be effective September 4, 1990.
4:80-3. Renunciation by or Notice to Next of Kin and Others
If the application for the letters specified in R. 4:80-1(a) (except letters testamentary) is made to the Surrogate's Court by the person first entitled thereto, no renunciation or notice shall be required; but if the application is made by any other person, the applicant shall file:
(a) The renunciation, acknowledged before an officer qualified to take acknowledgments of deeds, of all competent adult persons whose right to the letters is prior or equal to that of the applicant, containing a request that the letters issue according to the application; or
(b) proof that at least 10 days' notice of the application has been given to all such persons residing in this State who have not renounced, and that at least 60 days' notice, or such notice (not less than 10 days in length) as the Surrogate's Court by order may have directed, has been given to all of them who reside outside this State. If in an application for letters of administration with the will annexed, it appears that the decedent left a will naming an executor who has not renounced, proof shall be submitted showing that like notice has been given to the executor. In any case the Surrogate's Court may require the applicant to give notice to interested persons other than those entitled to letters. Such notice may be served either as prescribed by R. 4:4-4 or by registered or certified mail return receipt requested to the person's last known address. If the name or address of any such person entitled to notice is not known, then an affidavit of inquiry as to such name or address, made as prescribed by R. 4:4-5(c) shall be filed in lieu of proof of notice.
(c) In addition to the proofs required in paragraphs (a) and (b) of this rule, if the application for letters of administration shows that there are no known next of kin or knowledge thereof, the applicant shall file proof that at least 20 days' notice of the application has been given to the Attorney General of this State.
(d) All renunciations shall be recorded by the Surrogate's Court.
Note: Source-R.R. 4:99-3. Amended July 26, 1984 to be effective September 10, 1984; former caption and text of R. 4:80-3 deleted, introductory text and paragraphs (a), (b) and (c) of former R. 4:80-4 amended, paragraph (d) adopted, and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994.
4:80-4. Qualifications
Qualifications of executors and administrators shall be taken as provided in R. 4:96-1.
Note: New caption and text adopted June 29, 1990 to be effective September 4, 1990.
4:80-5. Residents Preferred Over Nonresidents
As between persons equally entitled, the Surrogate's Court in granting letters shall give preference to residents of this State over nonresidents, unless the best interest of the estate will not thereby be served.
Note: Source-R.R. 4:99-4. Amended July 26, 1984 to be effective September 10, 1984; amended June 29, 1990 to be effective September 4, 1990.
4:80-6. Notice of Probate of Will
Within 60 days after the date of the probate of a will, the personal representative shall cause to be mailed to all beneficiaries under the will and to all persons designated by R. 4:80-1(a)(3), at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request. Proof of mailing shall be filed with the Surrogate within 10 days thereof. If the names or addresses of any of those persons are not known, or cannot by reasonable inquiry be determined, then a notice of probate of the will shall be published in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate. If by the terms of the will property is devoted to a present or future charitable use or purpose, like notice and a copy of the will shall be mailed to the Attorney General.
Note: Source-R.R. 4:99-7; former R. 4:80-8 amended and rule redesignated June 29, 1990 to be effective September 4, 1990.
4:80-7. Use of Photostatic Copy Where Will Is Probated in Another State
If the will of a person resident in this State at death has been probated in another state or jurisdiction under the laws of which it cannot be removed therefrom or cannot remain in this State for permanent filing, a photocopy thereof attached and certified pursuant to Rule 902(d) of the Rules of Evidence (proof of official record) may be admitted to probate in lieu of the original will.
Note: Source-R.R. 4:99-10; former R. 4:80-11 amended and rule redesignated June 29, 1990 to be to be effective September 4, 1990; amended July 10, 1998 to be effective September 1, 1998.
[ 4:80-8. Notice to Creditors to Present Claims ] [deleted]
Note: Source – R.R. 4:114-1 (first and second sentence). Amended July 7, 1971 to be effective September 13, 1971; amended July 22, 1983 to be effective September 12, 1983; former R. 4:96-1 amended and rule redesignated as R. 4:80-8 June 29, 1990 to be effective September 4, 1990; R. 4:80-8 deleted July 27, 2006 to be effective September 1, 2006.
4:80-9. Testamentary Trustee
If a trustee is named in or pursuant to a will duly admitted to probate or a successor trustee under a will has been appointed, the trustee shall, before exercising the authority vested by the will or the appointment, accept the trusteeship as provided by R. 4:96-1. The acceptance shall recite the names and addresses of the trustees and the persons interested in the trust and shall identify their interests. Upon the filing of the acceptance and the power of attorney required by N.J.S.A. 3B:14-47, letters of trusteeship shall be issued by the Surrogate's Court. No application, judgment or order for the issuance of letters shall be required.
Note: Source-R.R. 4:100-1. Amended July 7, 1971 to be effective September 13, 1971; amended July 26, 1984 to be effective September 10, 1984; former R. 4:81-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; amended July 5, 2000 to be effective September 5, 2000.
ANSWERS TO YOUR QUESTIONS ABOUT PROBATE AND ADMINISTRATION OF AN ESTATE
What is Probate?
Probate is the process where after death the instructions of the Will are carried out. Will is admitted to “Probate” in the County Surrogate. Some people refer to the Surrogate as the Will Clerk. Upon the death of the testator or testatrix (maker of the Will), the probate procedure can begin. This is the legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death.
The probate application must contain the following information:
1. the applicant's residence;?
2. the name, domicile and date of death of the decedent;?
3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor;?
4. the ages of any minor heirs; and?
5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.
To minimize time spent in the Surrogate, it is recommended, and in some counties required, that before an Executor submits the Will for probate the executor’s attorney or executor send the Court:
1) a "data sheet" (referred to in some counties as an "information sheet" or a "fact sheet") containing the information needed by the Surrogate to complete the application;
2) a copy of the Will; and
3) a copy of the death certificate.
FILING A PROBATE APPLICATION Upon the death of a person, a probate proceeding may be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.
When the applicant files the original Will for probate, the applicant must also file a death certificate (and original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers.
Qualifying the Executor
Once the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a power of attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary.
Mailing Probate Notices
After a Will is admitted to probate, the Executor’s Attorney or Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should contain the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor’s Attorney or Executor should file proof of service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed.
Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The cost of admitting a Will to probate should be limited. Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer pg. 14 ( July/August 1992)
How do I begin the probate procedure?
The Executor or personal representative can be appointed and the Will admitted to probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will.
How is an administrator appointed when there is no Will?
When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. In most cases, a surety bond must be furnished to cover the value of the real and personal property in the estate.
What kind of information should I collect?
The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages.
What if the Will is not properly executed?
The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.
How soon must state inheritance taxes be paid?
State inheritance tax returns must be filed and the tax paid within eight (8) months after decedent's death to avoid interest.
Are unpaid inheritance taxes a lien on property?
Yes, to sell real estate, you Will need to obtain "tax waivers" from the New Jersey State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as "tenants by the entirety" need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.
How about federal estate taxes?
In 2008 there is no federal tax due unless the estate exceeds $2,000,000. However, there is a New Jersey Estate tax for estates over $675,000.
There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes.
How many Surrogate's Certificates ("Shorts") Will I need?
A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the probate clerk in the Surrogate's Office.
When is the Will admitted to probate?
After all the proper forms are filed with the probate clerk, the clerk will prepare a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues "Letters Testamentary."
What are Surrogate's Certificates used for?
Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc.
Is it necessary to send copies of the Will to the beneficiaries?
From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, along with a notice giving the specific date and place the Will was entered into probate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer
Basically, what is the Executor/Administrator required to do?
The Executor or Administrator is, in general, required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, as well as any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county in which the DECEDENT (the deceased person) resided at the time of death.
The duties of the personal representative include:
* - finding the Will and having it PROBATED. Probate is the legal procedure used to establish the validity of a Will.?* - locating and protecting the assets of the estate.?* - finding and notifying the heirs.?* - paying the debts, expenses, and taxes of the estate from the assets of the estate.?* - complying with the requirements of state and federal law.?* - distributing property to the heirs after all proper procedures have been followed.
Is an attorney necessary in estate administration?
As a practical matter, it is very difficulty for a non-lawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. You may wish to call your attorney to give you further advice as to specific duties and obligations.
Where does the Executor/Administrator obtain the funds to pay debts?
The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account which can be used to receive and disburse funds.
Am I entitled to compensation for acting as Executor or Administrator?
An Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00.
If there is more than one Executor or Administrator, an additional 1% corpus commission may be allowed by the Court for each additional Executor or Administrator.
In addition to corpus commissions, an Executor or Administrator is entitled to income commissions of 6% of income earned on estate corpus during the administration of the estate.
What do I do about a safe deposit box in the name of the decedent ?
Individuals generally keep their Will in their safe deposit box. The personal representative is permitted to remove the original Will, as well as a deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before probate without a representative of the Inheritance Tax Bureau present. Thereafter, the box is sealed until the District Supervisor of the New jersey Transfer Inheritance Tax Bureau opens and makes an inventory of the contents of the box. It is the responsibility of the personal representative to contact the District Supervisor of the county in which the box is located to arrange for an appointment for this inventory.
How do I handle joint bank accounts or certificates of deposit?
Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) become the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw on-half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until a tax waiver is issued by the New Jersey Transfer Inheritance Tax Bureau, normally after the tax is paid and the return is filed.
Is all this paperwork necessary even on small estates?
There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000.
How do I prove that legacies were paid?
The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording.
What if there is no Will?
If the decedent dies without a Will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of family relationship.
Probate is the process where after death the instructions of the Will are carried out. Will is admitted to “Probate” in the County Surrogate. Some people refer to the Surrogate as the Will Clerk. Upon the death of the testator or testatrix (maker of the Will), the probate procedure can begin. This is the legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death.
The probate application must contain the following information:
1. the applicant's residence;?
2. the name, domicile and date of death of the decedent;?
3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor;?
4. the ages of any minor heirs; and?
5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.
To minimize time spent in the Surrogate, it is recommended, and in some counties required, that before an Executor submits the Will for probate the executor’s attorney or executor send the Court:
1) a "data sheet" (referred to in some counties as an "information sheet" or a "fact sheet") containing the information needed by the Surrogate to complete the application;
2) a copy of the Will; and
3) a copy of the death certificate.
FILING A PROBATE APPLICATION Upon the death of a person, a probate proceeding may be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.
When the applicant files the original Will for probate, the applicant must also file a death certificate (and original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers.
Qualifying the Executor
Once the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a power of attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary.
Mailing Probate Notices
After a Will is admitted to probate, the Executor’s Attorney or Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should contain the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor’s Attorney or Executor should file proof of service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed.
Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The cost of admitting a Will to probate should be limited. Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer pg. 14 ( July/August 1992)
How do I begin the probate procedure?
The Executor or personal representative can be appointed and the Will admitted to probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will.
How is an administrator appointed when there is no Will?
When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. In most cases, a surety bond must be furnished to cover the value of the real and personal property in the estate.
What kind of information should I collect?
The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages.
What if the Will is not properly executed?
The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.
How soon must state inheritance taxes be paid?
State inheritance tax returns must be filed and the tax paid within eight (8) months after decedent's death to avoid interest.
Are unpaid inheritance taxes a lien on property?
Yes, to sell real estate, you Will need to obtain "tax waivers" from the New Jersey State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as "tenants by the entirety" need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.
How about federal estate taxes?
In 2008 there is no federal tax due unless the estate exceeds $2,000,000. However, there is a New Jersey Estate tax for estates over $675,000.
There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes.
How many Surrogate's Certificates ("Shorts") Will I need?
A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the probate clerk in the Surrogate's Office.
When is the Will admitted to probate?
After all the proper forms are filed with the probate clerk, the clerk will prepare a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues "Letters Testamentary."
What are Surrogate's Certificates used for?
Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc.
Is it necessary to send copies of the Will to the beneficiaries?
From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, along with a notice giving the specific date and place the Will was entered into probate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer
Basically, what is the Executor/Administrator required to do?
The Executor or Administrator is, in general, required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, as well as any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county in which the DECEDENT (the deceased person) resided at the time of death.
The duties of the personal representative include:
* - finding the Will and having it PROBATED. Probate is the legal procedure used to establish the validity of a Will.?* - locating and protecting the assets of the estate.?* - finding and notifying the heirs.?* - paying the debts, expenses, and taxes of the estate from the assets of the estate.?* - complying with the requirements of state and federal law.?* - distributing property to the heirs after all proper procedures have been followed.
Is an attorney necessary in estate administration?
As a practical matter, it is very difficulty for a non-lawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. You may wish to call your attorney to give you further advice as to specific duties and obligations.
Where does the Executor/Administrator obtain the funds to pay debts?
The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account which can be used to receive and disburse funds.
Am I entitled to compensation for acting as Executor or Administrator?
An Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00.
If there is more than one Executor or Administrator, an additional 1% corpus commission may be allowed by the Court for each additional Executor or Administrator.
In addition to corpus commissions, an Executor or Administrator is entitled to income commissions of 6% of income earned on estate corpus during the administration of the estate.
What do I do about a safe deposit box in the name of the decedent ?
Individuals generally keep their Will in their safe deposit box. The personal representative is permitted to remove the original Will, as well as a deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before probate without a representative of the Inheritance Tax Bureau present. Thereafter, the box is sealed until the District Supervisor of the New jersey Transfer Inheritance Tax Bureau opens and makes an inventory of the contents of the box. It is the responsibility of the personal representative to contact the District Supervisor of the county in which the box is located to arrange for an appointment for this inventory.
How do I handle joint bank accounts or certificates of deposit?
Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) become the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw on-half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until a tax waiver is issued by the New Jersey Transfer Inheritance Tax Bureau, normally after the tax is paid and the return is filed.
Is all this paperwork necessary even on small estates?
There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000.
How do I prove that legacies were paid?
The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording.
What if there is no Will?
If the decedent dies without a Will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of family relationship.
ADMINISTRATION OF ESTATES, PROBATE AND DECEDENTS - Law in New Jersey
3B:10-6. Acts of administrator before notice of will Lawful acts performed in good faith by an administrator before notice of a will and purchases or transfers made by him in good faith before notice shall remain valid and shall not be impeached or altered by an executor upon probate of the will.
Nothing in this section shall be construed to relieve the administrator of any liability to the executor under the will for property unadministered or maladministered.
3B:10-7. Ancillary administration on estate of nonresident intestate Where a nonresident dies intestate seized of real property or possessed of personal property in this State, or where the evidence of his personal property shall be in the hands of any resident of this State, the surrogate's court of the county wherein any of the real or personal property or evidence thereof, is situate, or the Superior Court, shall, in an action upon satisfactory proof of intestacy, issue letters of administration upon the estate of the nonresident to the administrator of his estate or, on notice to the administrator as the court shall require, to any person who would be entitled to administration if the intestate had been a resident at his death.
3B:10-8. Administration by creditor of nonresident decedent If a personal representative of a nonresident decedent fails to apply in this State for letters testamentary or of administration within 60 days next after the death of the decedent and there is real or personal property of the decedent within this State, or the evidence thereof in the hands of a resident of this State, the surrogate's court of a county wherein the real property, or personal property or evidence, is situate, or the Superior Court, may, in an action by any person resident or nonresident, alleging himself to have a debt or legal claim against the decedent which by the law of this State survives against his representatives, issue letters of administration, with the will annexed or otherwise as the case may require, to some fit person to be designated by the court.
Prior to an appointment pursuant to this section, notice shall be given the foreign personal representative as the court shall prescribe.
3B:10-9. Record of appointment of personal representative; evidentiary effect If any person shall desire to have the appointment of a personal representative appointed in another state recorded in this State for the purpose of manifesting the authority of the personal representative to release or discharge real estate in this State from any mortgage, judgment, other lien or encumbrance which was held by his decedent the surrogate of the county wherein the real estate is situate, or the clerk of the Superior Court, may, upon the presentation to him of an exemplified copy of the record of the appointment of the personal representative, record and file the exemplified copy in his office, and the record or certified copies thereof shall be received as evidence in all courts of this State.
3B:10-10. Executor de son tort Whereas it is sometimes practiced to the defrauding of creditors, that persons who are entitled to the administration of the estate of an intestate will not accept administration, but suffer or procure the administration to be granted to others of indigent circumstances, from whom they, or others, by their means, by deeds of gifts, or by letters of attorney, obtain the estate of the intestate into their hands, and are not subject to the payment of the debts of the intestate, and so the creditors cannot have or recover their just debts and demands; therefore, if any person shall obtain, receive and have, any property or debts of an intestate, or a release or other discharge of any debt or duty due the intestate, upon any fraud as herein provided, without valuable consideration as shall amount to the value of the property or debts, or near thereabouts except it be in or towards satisfaction of some just debt, of the value of the same property or debts, to him owing by the intestate at the time of his decease, the person shall be charged and chargeable as executor of his own wrong so far only, as all the property and debts coming to his hands, or whereof he is released or discharged by the administrator, will satisfy. However he shall not be charged for those just debts, contracted without fraud and upon a good consideration, which are owing to him by the intestate at the time of his decease, nor for payments made by him which lawful executors or administrators ought to pay.
3B:10-11. Administration ad prosequendum on death by wrongful act The surrogate's court of the county wherein an intestate resided at his death, or, if the intestate resided outside the State, the surrogate's court of the county wherein the accident resulting in death occurred, or the Superior Court, may grant letters of administration ad prosequendum to the person entitled by law to general administration. An administrator ad prosequendum shall not be required to give bond.
3B:10-12. Temporary administration The Superior Court may grant administration ad litem, temporary administration, administration pendente lite, or any form of limited administration.
3B:10-13. Duty to apply in this State for original letters of administration When an intestate is resident in any county of New Jersey at his death, it shall be the duty of the heir or any other person desiring original letters of administration upon his estate to make application therefor to the surrogate of that county or to the Superior Court of this State.
Any person having knowledge of the grant in a foreign jurisdiction of original letters of administration upon the estate of a person dying resident in any county of New Jersey, shall give information thereof to the Superior Court.
The court may direct the clerk of the court to issue and have served subpoenas or an order to show cause requiring the appearance before it, at a specified time, of any persons having any interest in the estate, and commanding them to abide the order of the court. The matter of the grant of letters of administration shall be wholly within the jurisdiction of the court.
3B:10-14. Appointment of debtor as executor; debt not discharged The appointment of a debtor as executor shall not, unless otherwise expressed in the will, be construed to discharge the executor from payment of the debt, but the debt shall be considered an asset in the hands of the executor and shall be accounted for in the same manner as any other part of the decedent's estate.
3B:10-15. Appointment of substituted administrators When a sole or sole surviving or remaining executor or administrator, with or without the will annexed, dies or is removed or discharged by the court after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall, except as hereinafter provided, be filled by the appointment of a fit person to exercise the vacated office. The person so appointed shall be nominated substituted administrator with the will annexed or substituted administrator, as the case may be.
3B:10-16. Decedent's will to be observed Where administration is granted with the will annexed, the will of the decedent therein expressed shall be observed and performed.
3B:10-17. Manner in which appointment shall be made The appointment shall be made by the issuance of letters of substitutionary administration, with or without the will annexed as the case may be, by the surrogate's court or the Superior Court in the manner and upon the conditions prescribed for granting letters of administration to the first administrators in other cases.
3B:10-18. When appointment unnecessary The appointment of a substituted administrator shall not be required if the unadministered assets of the intestate or testator consist of money on deposit in a bank, trust company or savings and loan association not exceeding $1,000.00, in which event it shall be lawful for the Superior Court, in an action brought by any party in interest, to authorize the bank, trust company or savings and loan association to distribute to the persons entitled by law to receive the assets. Payments made pursuant to the authority of this section shall release the bank, trust company or savings and loan association from any claim of, or liability to, any person interested in the estate.
3B:10-19. Commencement of duties and powers of a personal representative The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.
3B:10-20. Ratification of prior acts A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
3B:10-21. Carrying out decedent's written funeral instructions Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements.
3B:10-22. Priority among letters A person to whom general letters of appointment are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters of appointment are afterwards issued to another, the first appointed personal representative may recover any property of the estate in the hands of the personal representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
3B:10-23. Duty of personal representative to settle and distribute estate A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and applicable law, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by law, the terms of the will, if any, and any order in proceedings to which he is a party for the best interests of successors to the estate.
3B:10-24. Liability for acts of administration or distribution A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending proceeding to probate a will or to determine heirs, a proceeding to vacate an order entered in an earlier proceeding to probate a will, a formal proceeding questioning his appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants and others interested in the estate.
3B:10-25. Standing to sue and be sued Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at his death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as his decedent had immediately prior to death.
3B:10-26. Standards of care to be observed Except as otherwise provided by the terms of a decedent's will, the personal representative shall observe the standards in dealing with the estate assets that would be observed by a prudent man dealing with the property of another, and if the personal representative has special skills or is named personal representative on the basis of representations of special skills or expertise, he is under a duty to use those skills.
3B:10-27. Right to possession of property transferred in fraud of creditors The right to possession of property transferred in fraud of creditors recovered for the benefit of creditors is exclusively in the personal representative.
3B:10-28. Expeditious settlement and distribution A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and do so without adjudication, order, or direction of a court, but he may invoke the jurisdiction of a court, in proceedings authorized by law to resolve questions concerning the estate or its administration.
3B:10-29. Possession and control of estate Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
3B:10-30. Power over title to property Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
3B:10-31. Powers and duties of successor representative A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
3B:10-32. Powers of surviving co-personal representative Unless the terms of the will otherwise provide, every power exercisable by co-personal representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as co-personal representatives is not appointed, those appointed may exercise all the powers incident to the office.
3B:11-1. Creator's reserved interest in trust alienable subject to creditors' claims The right of any creator of a trust to receive either the income or the principal of the trust or any part of either thereof, presently or in the future, shall be freely alienable and shall be subject to the claims of his creditors, notwithstanding any provision to the contrary in the terms of the trust.
3B:11-2. Letters of trusteeship under a will A testamentary trustee or substituted testamentary trustee, before exercising the authority vested in him by virtue of any will admitted to probate by the Superior Court, or any surrogate's court of this State, shall obtain letters of trusteeship from that court.
3B:11-3. Trustees construed to be joint tenants All estates heretofore or hereafter granted or devised to trustees shall be construed to have vested and to vest an estate of joint tenancy in the trustees.
When a trustee is removed a conveyance or devise from the removed trustee to the old and new trustees or to the new trustees shall vest in the old and new trustees or the new trustees an estate in joint tenancy, notwithstanding any want of unity.
When a trustee dies or resigns or his office becomes vacant for any cause, and a new trustee is appointed, the surviving trustees, if any there be, and the new trustees shall hold the trust estate as joint tenants, and a conveyance of a right and interest in the trust estate from the surviving trustees, to the new trustee shall vest in all the trustees an estate in joint tenancy, notwithstanding any want of unity.
When a new, additional or substituted trustee is appointed by a court of competent jurisdiction or becomes such by operation of the terms of a will or other instrument or by operation of law, title to the trust assets shall forthwith vest in all the trustees in office including the new, additional or substituted trustee as joint tenants.
3B:11-4. Effect to be given consent by holders of general powers of appointment upon beneficiaries For the purpose of granting consent or approval with regard to the acts or accounts of a fiduciary or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent that the interests of the beneficiaries as objects, takers in default, or otherwise are subject to the power. As used in this section, a presently exercisable general power of appointment is one which enables the power holder to presently draw absolute ownership to himself.
3B:11-4.1. Limitations on powers of trustees; applicability; "interested party" defined 1. a. The following powers conferred by a governing instrument upon a trustee in his or her capacity as a trustee shall not be exercised by that trustee:
(1) The power to make discretionary distributions of either principal or income to or for the benefit of the trustee, the trustee's estate, or the creditors of either, unless either:
(a) limited by an ascertainable standard relating to the trustee's health, education, support or maintenance, within the meaning of 26 U.S.C. 2041 and 2514; or
(b) exercisable by the trustee only in conjunction with another person having a substantial interest in the property subject to the power which is adverse to the interest of the trustee within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii);
If a trustee is prohibited by paragraph (1) of this subsection from exercising a power conferred upon the trustee, the trustee nevertheless may exercise that power but shall be limited to distributions for the trustee's health, education, support or maintenance to the extent otherwise permitted by the terms of the trust.
(2) The power to make discretionary distributions of either principal or income to satisfy any of the trustee's personal legal obligations for support or other purposes;
(3) The power to make discretionary allocations in the trustee's personal favor of receipts or expenses as between income and principal, unless such trustee has no power to enlarge or shift any beneficial interest except as an incidental consequence of the discharge of such trustee's fiduciary duties;
(4) The power to exercise any of the powers proscribed in this subsection with regard to an individual other than the trustee to the extent that such individual could exercise a similar prohibited power in connection with a trust that benefits the trustee.
b. Unless otherwise prohibited by the provisions of subsection a. of this section, a trustee may exercise a power described in that subsection in favor of someone other than the trustee, the trustee's estate, or the creditors of either.
c. If a governing instrument contains a power proscribed under subsection a. of this section the following shall apply:
(1) If the power is conferred on two or more trustees, it may be exercised by the trustee or trustees who are not so prohibited as if they were the only trustee or trustees; or
(2) If there is no trustee in office who can exercise such power upon application of any interested party, a court of competent jurisdiction shall appoint a trustee to exercise such power or, except as provided in subsection d. of this section, a successor trustee who would not be disqualified shall be appointed to exercise the power that the other trustees cannot exercise in accordance with the provisions of the trust instrument as if the office of trustee were vacant.
d. No beneficiary of a trust, in an individual, trustee or other capacity, may appoint, or remove and appoint, a trustee who is related or subordinate to the beneficiary within the meaning of 26 U.S.C. 672 (c) unless:
(1) the trustee's discretionary power to make distributions to or for such beneficiary is limited by an ascertainable standard relating to the beneficiary's health, education, support or maintenance as set forth in subsection a. of this section;
(2) the trustee's discretionary power may not be exercised to satisfy any of such beneficiary's legal obligations for support or other purposes; and
(3) the trustee's discretionary power may not be exercised to grant to such beneficiary a general power to appoint property of the trust to the beneficiary, the beneficiary's estate or the creditors thereof within the meaning of 26 U.S.C. 2041.
This subsection d. shall not apply if the appointment of the trustee by the beneficiary may be made only in conjunction with another person having a substantial interest in the property of the trust, subject to the power, which is adverse to the exercise of the power in favor of the beneficiary within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii).
e. The provisions of this section shall not apply during the time that a trust remains revocable or amendable by the grantor.
f. This section applies to:
(1) Any trust created under a governing instrument executed 90 days or more after the effective date of this act, unless the governing instrument expressly provides that this act does not apply; and
(2) Any trust created under a governing instrument executed before 90 days after the effective date of this act, unless all interested parties affirmatively elect on or before three years after the effective date by a written declaration signed by or on behalf of each interested party and delivered to the trustee, not to be subject to the application of this act. In the case of a testamentary trust, such declarations shall be filed with the clerk of the court in which the will was admitted to probate.
g. In this section the term "interested party" means:
(1) Each trustee then serving; and
(2) Each person having an interest in income or principal whom it would be necessary to join as a party in a proceeding for the judicial settlement of a trustee's account or, if such a person has not attained majority or is otherwise incapacitated, the person's legal representative under applicable law or the person's agent under a durable power of attorney that is sufficient to grant such authority.
L.1996, c.41.
3B:11-5. Trustee's death or failure to act; appointment of new trustee by court; powers When a trustee appointed by a will probated in the surrogate's court of any county or a trustee appointed under a trust inter vivos as to real or personal property situate in any county fails or refuses to act or dies before the execution or completion of the trust committed to him, or absconds or removes from this State, is adjudicated a mental incompetent or becomes in any manner legally incapable of executing the trust, the Superior Court may remove the trustee, if he be alive, and appoint a suitable person or persons to execute the trust, and the trustee or trustees so appointed shall be entitled to the trust estate as fully and in the same manner as the original trustee was and shall have all the power and discretion of the original trustee.
3B:11-6. Vacancy in trusteeship upon discharge or removal When a trustee is removed or discharged by the Superior Court before the completion of the trust, the court may appoint a fit person or persons to fill the vacated office.
3B:11-7. Powers of new, substituted or additional trustees A duly appointed new, substituted or additional trustee shall have the same power and discretion with respect to the investment, management, conversion, sale or other disposition of the trust estate, whether real or personal, as was given to or vested in the original trustee or trustees named in or appointed by the will or other instrument creating or continuing the trust, notwithstanding the power or discretion may be directed by the will or other instrument to be exercised at the discretion of the original trustee or trustees unless the power or discretion of the original trustee or trustees is expressly prohibited by the will or other instrument to any new, substituted or additional trustee.
Nothing in this section shall be construed to relieve the administrator of any liability to the executor under the will for property unadministered or maladministered.
3B:10-7. Ancillary administration on estate of nonresident intestate Where a nonresident dies intestate seized of real property or possessed of personal property in this State, or where the evidence of his personal property shall be in the hands of any resident of this State, the surrogate's court of the county wherein any of the real or personal property or evidence thereof, is situate, or the Superior Court, shall, in an action upon satisfactory proof of intestacy, issue letters of administration upon the estate of the nonresident to the administrator of his estate or, on notice to the administrator as the court shall require, to any person who would be entitled to administration if the intestate had been a resident at his death.
3B:10-8. Administration by creditor of nonresident decedent If a personal representative of a nonresident decedent fails to apply in this State for letters testamentary or of administration within 60 days next after the death of the decedent and there is real or personal property of the decedent within this State, or the evidence thereof in the hands of a resident of this State, the surrogate's court of a county wherein the real property, or personal property or evidence, is situate, or the Superior Court, may, in an action by any person resident or nonresident, alleging himself to have a debt or legal claim against the decedent which by the law of this State survives against his representatives, issue letters of administration, with the will annexed or otherwise as the case may require, to some fit person to be designated by the court.
Prior to an appointment pursuant to this section, notice shall be given the foreign personal representative as the court shall prescribe.
3B:10-9. Record of appointment of personal representative; evidentiary effect If any person shall desire to have the appointment of a personal representative appointed in another state recorded in this State for the purpose of manifesting the authority of the personal representative to release or discharge real estate in this State from any mortgage, judgment, other lien or encumbrance which was held by his decedent the surrogate of the county wherein the real estate is situate, or the clerk of the Superior Court, may, upon the presentation to him of an exemplified copy of the record of the appointment of the personal representative, record and file the exemplified copy in his office, and the record or certified copies thereof shall be received as evidence in all courts of this State.
3B:10-10. Executor de son tort Whereas it is sometimes practiced to the defrauding of creditors, that persons who are entitled to the administration of the estate of an intestate will not accept administration, but suffer or procure the administration to be granted to others of indigent circumstances, from whom they, or others, by their means, by deeds of gifts, or by letters of attorney, obtain the estate of the intestate into their hands, and are not subject to the payment of the debts of the intestate, and so the creditors cannot have or recover their just debts and demands; therefore, if any person shall obtain, receive and have, any property or debts of an intestate, or a release or other discharge of any debt or duty due the intestate, upon any fraud as herein provided, without valuable consideration as shall amount to the value of the property or debts, or near thereabouts except it be in or towards satisfaction of some just debt, of the value of the same property or debts, to him owing by the intestate at the time of his decease, the person shall be charged and chargeable as executor of his own wrong so far only, as all the property and debts coming to his hands, or whereof he is released or discharged by the administrator, will satisfy. However he shall not be charged for those just debts, contracted without fraud and upon a good consideration, which are owing to him by the intestate at the time of his decease, nor for payments made by him which lawful executors or administrators ought to pay.
3B:10-11. Administration ad prosequendum on death by wrongful act The surrogate's court of the county wherein an intestate resided at his death, or, if the intestate resided outside the State, the surrogate's court of the county wherein the accident resulting in death occurred, or the Superior Court, may grant letters of administration ad prosequendum to the person entitled by law to general administration. An administrator ad prosequendum shall not be required to give bond.
3B:10-12. Temporary administration The Superior Court may grant administration ad litem, temporary administration, administration pendente lite, or any form of limited administration.
3B:10-13. Duty to apply in this State for original letters of administration When an intestate is resident in any county of New Jersey at his death, it shall be the duty of the heir or any other person desiring original letters of administration upon his estate to make application therefor to the surrogate of that county or to the Superior Court of this State.
Any person having knowledge of the grant in a foreign jurisdiction of original letters of administration upon the estate of a person dying resident in any county of New Jersey, shall give information thereof to the Superior Court.
The court may direct the clerk of the court to issue and have served subpoenas or an order to show cause requiring the appearance before it, at a specified time, of any persons having any interest in the estate, and commanding them to abide the order of the court. The matter of the grant of letters of administration shall be wholly within the jurisdiction of the court.
3B:10-14. Appointment of debtor as executor; debt not discharged The appointment of a debtor as executor shall not, unless otherwise expressed in the will, be construed to discharge the executor from payment of the debt, but the debt shall be considered an asset in the hands of the executor and shall be accounted for in the same manner as any other part of the decedent's estate.
3B:10-15. Appointment of substituted administrators When a sole or sole surviving or remaining executor or administrator, with or without the will annexed, dies or is removed or discharged by the court after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall, except as hereinafter provided, be filled by the appointment of a fit person to exercise the vacated office. The person so appointed shall be nominated substituted administrator with the will annexed or substituted administrator, as the case may be.
3B:10-16. Decedent's will to be observed Where administration is granted with the will annexed, the will of the decedent therein expressed shall be observed and performed.
3B:10-17. Manner in which appointment shall be made The appointment shall be made by the issuance of letters of substitutionary administration, with or without the will annexed as the case may be, by the surrogate's court or the Superior Court in the manner and upon the conditions prescribed for granting letters of administration to the first administrators in other cases.
3B:10-18. When appointment unnecessary The appointment of a substituted administrator shall not be required if the unadministered assets of the intestate or testator consist of money on deposit in a bank, trust company or savings and loan association not exceeding $1,000.00, in which event it shall be lawful for the Superior Court, in an action brought by any party in interest, to authorize the bank, trust company or savings and loan association to distribute to the persons entitled by law to receive the assets. Payments made pursuant to the authority of this section shall release the bank, trust company or savings and loan association from any claim of, or liability to, any person interested in the estate.
3B:10-19. Commencement of duties and powers of a personal representative The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.
3B:10-20. Ratification of prior acts A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
3B:10-21. Carrying out decedent's written funeral instructions Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements.
3B:10-22. Priority among letters A person to whom general letters of appointment are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters of appointment are afterwards issued to another, the first appointed personal representative may recover any property of the estate in the hands of the personal representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
3B:10-23. Duty of personal representative to settle and distribute estate A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and applicable law, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by law, the terms of the will, if any, and any order in proceedings to which he is a party for the best interests of successors to the estate.
3B:10-24. Liability for acts of administration or distribution A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending proceeding to probate a will or to determine heirs, a proceeding to vacate an order entered in an earlier proceeding to probate a will, a formal proceeding questioning his appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants and others interested in the estate.
3B:10-25. Standing to sue and be sued Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at his death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as his decedent had immediately prior to death.
3B:10-26. Standards of care to be observed Except as otherwise provided by the terms of a decedent's will, the personal representative shall observe the standards in dealing with the estate assets that would be observed by a prudent man dealing with the property of another, and if the personal representative has special skills or is named personal representative on the basis of representations of special skills or expertise, he is under a duty to use those skills.
3B:10-27. Right to possession of property transferred in fraud of creditors The right to possession of property transferred in fraud of creditors recovered for the benefit of creditors is exclusively in the personal representative.
3B:10-28. Expeditious settlement and distribution A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and do so without adjudication, order, or direction of a court, but he may invoke the jurisdiction of a court, in proceedings authorized by law to resolve questions concerning the estate or its administration.
3B:10-29. Possession and control of estate Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
3B:10-30. Power over title to property Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
3B:10-31. Powers and duties of successor representative A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
3B:10-32. Powers of surviving co-personal representative Unless the terms of the will otherwise provide, every power exercisable by co-personal representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as co-personal representatives is not appointed, those appointed may exercise all the powers incident to the office.
3B:11-1. Creator's reserved interest in trust alienable subject to creditors' claims The right of any creator of a trust to receive either the income or the principal of the trust or any part of either thereof, presently or in the future, shall be freely alienable and shall be subject to the claims of his creditors, notwithstanding any provision to the contrary in the terms of the trust.
3B:11-2. Letters of trusteeship under a will A testamentary trustee or substituted testamentary trustee, before exercising the authority vested in him by virtue of any will admitted to probate by the Superior Court, or any surrogate's court of this State, shall obtain letters of trusteeship from that court.
3B:11-3. Trustees construed to be joint tenants All estates heretofore or hereafter granted or devised to trustees shall be construed to have vested and to vest an estate of joint tenancy in the trustees.
When a trustee is removed a conveyance or devise from the removed trustee to the old and new trustees or to the new trustees shall vest in the old and new trustees or the new trustees an estate in joint tenancy, notwithstanding any want of unity.
When a trustee dies or resigns or his office becomes vacant for any cause, and a new trustee is appointed, the surviving trustees, if any there be, and the new trustees shall hold the trust estate as joint tenants, and a conveyance of a right and interest in the trust estate from the surviving trustees, to the new trustee shall vest in all the trustees an estate in joint tenancy, notwithstanding any want of unity.
When a new, additional or substituted trustee is appointed by a court of competent jurisdiction or becomes such by operation of the terms of a will or other instrument or by operation of law, title to the trust assets shall forthwith vest in all the trustees in office including the new, additional or substituted trustee as joint tenants.
3B:11-4. Effect to be given consent by holders of general powers of appointment upon beneficiaries For the purpose of granting consent or approval with regard to the acts or accounts of a fiduciary or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent that the interests of the beneficiaries as objects, takers in default, or otherwise are subject to the power. As used in this section, a presently exercisable general power of appointment is one which enables the power holder to presently draw absolute ownership to himself.
3B:11-4.1. Limitations on powers of trustees; applicability; "interested party" defined 1. a. The following powers conferred by a governing instrument upon a trustee in his or her capacity as a trustee shall not be exercised by that trustee:
(1) The power to make discretionary distributions of either principal or income to or for the benefit of the trustee, the trustee's estate, or the creditors of either, unless either:
(a) limited by an ascertainable standard relating to the trustee's health, education, support or maintenance, within the meaning of 26 U.S.C. 2041 and 2514; or
(b) exercisable by the trustee only in conjunction with another person having a substantial interest in the property subject to the power which is adverse to the interest of the trustee within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii);
If a trustee is prohibited by paragraph (1) of this subsection from exercising a power conferred upon the trustee, the trustee nevertheless may exercise that power but shall be limited to distributions for the trustee's health, education, support or maintenance to the extent otherwise permitted by the terms of the trust.
(2) The power to make discretionary distributions of either principal or income to satisfy any of the trustee's personal legal obligations for support or other purposes;
(3) The power to make discretionary allocations in the trustee's personal favor of receipts or expenses as between income and principal, unless such trustee has no power to enlarge or shift any beneficial interest except as an incidental consequence of the discharge of such trustee's fiduciary duties;
(4) The power to exercise any of the powers proscribed in this subsection with regard to an individual other than the trustee to the extent that such individual could exercise a similar prohibited power in connection with a trust that benefits the trustee.
b. Unless otherwise prohibited by the provisions of subsection a. of this section, a trustee may exercise a power described in that subsection in favor of someone other than the trustee, the trustee's estate, or the creditors of either.
c. If a governing instrument contains a power proscribed under subsection a. of this section the following shall apply:
(1) If the power is conferred on two or more trustees, it may be exercised by the trustee or trustees who are not so prohibited as if they were the only trustee or trustees; or
(2) If there is no trustee in office who can exercise such power upon application of any interested party, a court of competent jurisdiction shall appoint a trustee to exercise such power or, except as provided in subsection d. of this section, a successor trustee who would not be disqualified shall be appointed to exercise the power that the other trustees cannot exercise in accordance with the provisions of the trust instrument as if the office of trustee were vacant.
d. No beneficiary of a trust, in an individual, trustee or other capacity, may appoint, or remove and appoint, a trustee who is related or subordinate to the beneficiary within the meaning of 26 U.S.C. 672 (c) unless:
(1) the trustee's discretionary power to make distributions to or for such beneficiary is limited by an ascertainable standard relating to the beneficiary's health, education, support or maintenance as set forth in subsection a. of this section;
(2) the trustee's discretionary power may not be exercised to satisfy any of such beneficiary's legal obligations for support or other purposes; and
(3) the trustee's discretionary power may not be exercised to grant to such beneficiary a general power to appoint property of the trust to the beneficiary, the beneficiary's estate or the creditors thereof within the meaning of 26 U.S.C. 2041.
This subsection d. shall not apply if the appointment of the trustee by the beneficiary may be made only in conjunction with another person having a substantial interest in the property of the trust, subject to the power, which is adverse to the exercise of the power in favor of the beneficiary within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii).
e. The provisions of this section shall not apply during the time that a trust remains revocable or amendable by the grantor.
f. This section applies to:
(1) Any trust created under a governing instrument executed 90 days or more after the effective date of this act, unless the governing instrument expressly provides that this act does not apply; and
(2) Any trust created under a governing instrument executed before 90 days after the effective date of this act, unless all interested parties affirmatively elect on or before three years after the effective date by a written declaration signed by or on behalf of each interested party and delivered to the trustee, not to be subject to the application of this act. In the case of a testamentary trust, such declarations shall be filed with the clerk of the court in which the will was admitted to probate.
g. In this section the term "interested party" means:
(1) Each trustee then serving; and
(2) Each person having an interest in income or principal whom it would be necessary to join as a party in a proceeding for the judicial settlement of a trustee's account or, if such a person has not attained majority or is otherwise incapacitated, the person's legal representative under applicable law or the person's agent under a durable power of attorney that is sufficient to grant such authority.
L.1996, c.41.
3B:11-5. Trustee's death or failure to act; appointment of new trustee by court; powers When a trustee appointed by a will probated in the surrogate's court of any county or a trustee appointed under a trust inter vivos as to real or personal property situate in any county fails or refuses to act or dies before the execution or completion of the trust committed to him, or absconds or removes from this State, is adjudicated a mental incompetent or becomes in any manner legally incapable of executing the trust, the Superior Court may remove the trustee, if he be alive, and appoint a suitable person or persons to execute the trust, and the trustee or trustees so appointed shall be entitled to the trust estate as fully and in the same manner as the original trustee was and shall have all the power and discretion of the original trustee.
3B:11-6. Vacancy in trusteeship upon discharge or removal When a trustee is removed or discharged by the Superior Court before the completion of the trust, the court may appoint a fit person or persons to fill the vacated office.
3B:11-7. Powers of new, substituted or additional trustees A duly appointed new, substituted or additional trustee shall have the same power and discretion with respect to the investment, management, conversion, sale or other disposition of the trust estate, whether real or personal, as was given to or vested in the original trustee or trustees named in or appointed by the will or other instrument creating or continuing the trust, notwithstanding the power or discretion may be directed by the will or other instrument to be exercised at the discretion of the original trustee or trustees unless the power or discretion of the original trustee or trustees is expressly prohibited by the will or other instrument to any new, substituted or additional trustee.
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