Estate Planning for Cancer Patients

Contact the Law Office of KENNETH A VERCAMMEN for Legal Representation Compiled by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section

If someone is suffering from cancer, it is recommended that a Power of Attorney be prepared by an attorney to permit a family member to help the Cancer patient by paying bills and handling finances. Generally, many attorneys will require: 1. a note from the Doctor indicating the person is competent to sign a Power of Attorney [and will if the will has not yet been prepared] 2. the client [Cancer victim, not a family member] to specifically advise the attorney they want to appoint the specific person to handle their financial affairs. [The attorney cannot rely on a family member saying what the client/ patient wants.]

Prior to an individual being unable to manage his or her life as a result of a mental or physical disability, legal planning should be done. If a legally prepared Power of Attorney was signed, a trusted family member, friend, or professional can legally act on that person's affairs. If a Power of Attorney was not signed, we will only prepare a Power of Attorney for a "competent person".

ANNOUNCING HOME & HOSPITAL VISITS IN ELDER LAW CASES

A new service from our office is the availability of Home and Hospital visits. Timely advice and planning is important. Often people cannot travel to our office to sign Wills, Powers of Attorney, Living Wills and other legal documents. We can help by traveling to homes, hospitals, senior centers, retirement villages and nursing homes. For people under doctors care, we require a note from the doctor be obtained indicating the person is competent to sign these documents. That way the person's wishes are less likely to be contested in the future. The minimum fee for a hospital or home visit is $500 in Middlesex County.

If the Cancer patient is not competent, an attorney may be retained to file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend, or professional to be able to handle financial affairs. This is called a Guardianship.

What is a Power of Attorney?

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. Therefore, the doctor often must determine if the Cancer patient is competent to sign a Power of Attorney. The term "durable" in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injuries rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has legal procedures, guardianships, or conservatorships, to provide for appointment of a Guardian. These require formal proceedings and are expensive, requiring lawyers to prepare and file the necessary papers and doctors to provide medical certifications or testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. With advanced preparation of the Power of Attorney, the inconvenience and expense of legal Guardianship proceedings can be avoided. This needs to be done while the principal is competent, alert, and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late.

Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantor's bills and to handle the grantor's affairs during the inability of the grantor to do the same.

Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse's signature. If a valid Power of Attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid. Without a Power of Attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.

According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be a legally incompetent/ incapacitated person." p11

1. When is a guardian needed? A guardian is needed when an individual cannot manage his or her life as a result of a mental or physical disability or an alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11

Legislation (P.L. 1997, c 379) changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents. New Jersey Lawyer March 23, 1998

2. What rights does an incompetent/ incapacitated person lose? Unless a Court orders otherwise, a ward/ incompetent/ incapacitated person does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent/ incapacitated person also loses the right to marry.

3. How does somebody become the guardian of another?

Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent/ incapacitated person or are parents of an unmarried incompetent/ incapacitated person can choose who will become the guardian after the guardians die and include a clause designating their successor in their Wills. Disability Laws p12. Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent/ incapacitated person plus reasons why the incompetent/ incapacitated person is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent/ incapacitated person and prepare a report to the Court. The court costs and legal fees often exceeds $4,000.

4. Who can be a guardian?

Generally, a close relative or a person with a close relationship to the proposed incompetent/ incapacitated person who will act to protect the incompetent/ incapacitated person's best interests can be guardian. When a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.

5. What are the rights of the proposed incompetent/ incapacitated person prior to hearing?

The proposed incompetent/ incapacitated person is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.

6. Is court approval required to sell real estate if someone is declared incompetent/ incapacitated?

Yes. Your attorney can discuss transferring certain assets to qualify for Medicaid.


Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/estate_planning_for_cancer_patients.htm.

New Book and Audiotapes on Elder Law :

New Book and Audiotapes on Elder Law :
NUTS & BOLTS OF ELDER LAW 2003

Speakers and Authors: Martin A. Spigner, Esq. Kenneth A. Vercammen, Esq.: Thomas Begley, Jr. Kathleen Browning, Esq. John Jorgensen, Esq.

Program recording date: Thursday, April 9, 2003

Recommended for Attorneys, Accountants, Life Insurance Agents, Financial Planners and Elder Law Professionals

For audiotape and book cost, Call ICLE 732-214-8500 EVERYTHING YOU NEED TO KNOW ABOUT ELDER LAW, INCLUDING...

? Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms ? Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms

? Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms ? Basic Tax Considerations Jointly-held property; ³I love you² Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters ? Estate Administration Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists ? Medicaid Planning Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules ? Fair Hearing

? Long Term Care Insurance/Asset Protection Limitations on coverage; exclusions; premium costs; inflation riders; pre-existing conditions; alternatives to nursing home care

? Guardianship

Contact New Jersey Institute for Continuing Legal Education ® One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 Email: customerservice@njicle.com http://www.njicle.com


Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/nuts_and_bolts_of_elder_law_2003.htm

Attorneys Permitted as Executor

Many people wishing to have a new Will prepared are uncertain as to who to select as Executor. The Rules of Professional Conduct permit an attorney to serve as Executor of an estate. The following are 5 reasons why people have selected attorneys as Executors:
1. Attorneys who are not family members are not influenced by past family concerns or squabbles. Attorneys often have the staff and resources to liquidate assets, do paperwork, pay creditors and distribute assets to beneficiaries.

2. There may be no family members in New Jersey to go to Surrogate's office and qualify as Executor.

3. Family members not able to open and balance check-book and financial records due to age or inexperience.

4. No one in family wants to be executor.

5. Children fight amongst each other - Attorneys are independent.

The last thing you want is your heirs arguing over their inheritances after you are gone. So, to avoid hard feelings and even legal disputes, here are few helpful tips to consider:

Make a valid Will. A Will is a legal record to tell your loved ones how you want your property divided. Leaving a valid Will is the best way to be clear about your desires and wishes. Without a Will, the state in which you live Will distribute your assets for you according to law.

Don't leave verbal instructions to your heirs. Oral instructions don't have any legal effect. For example, don't leave your business in your Will to the oldest child, but then verbally ask that child to share the proceeds with your other children after your death. Your oldest child doesn't have any legal obligations to do so, and you could - unintentionally - create hard feelings among your children.

Keep your Will updated. Your Will needs to be updated as major changes take place in your life such as marriage, divorce, birth of a grandchild, buying new property or selling existing property. An outdated Will can be just as damaging to your family as no Will at all. When planning the distribution of your estate, it is best to consult your legal advisor to make sure your wishes are carried out.

Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/AttyExecutor.html.

Asset Protection

A number of techniques can be used to protect assets against estate taxes and the claims of creditors. This article reviews some of the techniques that should be considered. Asset protection strategies should be examined in light of your overall business, tax, and estate planning goals. In addition special care should be taken to avoid running afoul of fraudulent transfer laws.
Estate Planning

Unified gift and estate tax credit. This credit allows each taxpayer to shield up to $600,000 from estate and gift taxes. To make the most of the credit, married couples should consider transferring assets so that each spouse holds at least $600,000.

Annual gift tax exclusion. Taxpayers are permitted to make annual tax-free gifts of up to $10,000 per recipient ($20,000 for gifts made by a married couple). These gifts allow taxpayers to transfer large amounts of wealth to family members while reducing their taxable estates and placing the transferred assets beyond the reach of creditors.

Trust. Assets transferred to a spouse on death are generally free from estate taxes under the "marital deduction." Properly structured testamentary trust permit a couple to make the most of the marital deduction and to provide income for the surviving spouse, protect the assets against creditors' claims, and preserve the assets for their children.

Form of Ownership The manner in which title to properly is held can have a significant impact on the property's vulnerability to creditor claims. For example, property held by a husband and wife as joint tenants with rights of survivorship can generally be used to satisfy the debts of either spouse. But property held as tenants by the entireties can only be used to satisfy joint liabilities. If one spouse has greater liability exposure (e.g., a physician), it may be a good idea for the other spouse to hold title to the personal residence and other assets as separate property.

Note: The techniques available vary depending on the laws of the state in which the couple resides or in which the property is located.

Homestead property. In many states, a primary residence, or "homestead," is exempt from creditor claims. An effective asset protection strategy is to use nonexempt assets to pay down mortgage on an exempt residence.

Family Businesses Family limited partnerships. A family limited partnership allows senior family members to transfer a significant portion of a family business or property to younger family members without giving up control, while reducing estate taxes and providing limited protection against creditors.

Buy/sell agreements. Properly structured buy/sell arrangements among family business owners can often be used to establish the value of the business for estate tax purposes.

Estate freezes. Estate freeze techniques allow a business owner to shift the benefits of future appreciation to the younger generation (and to remove that appreciation in value from his or her estate) while retaining control of the business. The rules that apply to estate freezes are very complex, so careful planning is critical.

Qualified retirement plans. Qualified retirement plan accounts and benefits are generally exempt from the claims of creditors. IRAs offer some, but less, protection.

Non qualified deferred compensation. This is simply an agreement by the company to pay for an employee's services at a future date. If properly structured, these funds are not taxed until they are received and may be protested from creditors.

Life Insurance Trusts A properly structured irrevocable life insurance trust can be used to protect the policy and proceeds against creditor claims and remove the proceeds from the insured's taxable estate.

Offshore Trusts A foreign asset protection trust (APT), typically established in a foreign country that does not enforce U.S. judgments, may shield assets from litigation awards and offer some protection against creditors (but it can't be used to hide assets from current creditors). APTs are complex and expensive, and the grantor must be willing to place the trust assets beyond his or her reach for a significant amount of time. However, for people whose professions or other circumstances expose them to a high degree of risk, an APT may be worth a look.


Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/asset_protection.htm.

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.


Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/AnswerProbate.html.

ESTATE PLANNING FOR ALZHEIMER PATIENTS & GUARDIANSHIP OF DISABLED ADULTS

Compiled by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section

If a person has been diagnosed with Alzheimer's disease, it is important to immediately conduct Estate Planning with the assistance of an attorney.


Close to 4 million Americans are thought to have Alzheimer's disease - yet half of them remain undiagnosed.


It's all too easy to mistake many early Alzheimer's disease symptoms for natural signs of aging. Initial symptoms, like forgetfulness, tend to be so subtle that they can easily be dismissed as "just getting old." Symptoms can also vary widely among individuals.


Recognizing and treating Alzheimer's disease early is vital. Early diagnosis of Alzheimer's disease is important because that is when the most can be done to slow the progression of symptoms. Early treatment can have a significant effect on maintaining a patient's current level of ability.


Find help for yourself. Many people concerned about Alzheimer's disease discover that they need additional answers. Your doctor is your primary source of information about Alzheimer's disease.


If a person has been diagnosed with Alzheimer's disease, but is still competent, a formal Power of Attorney, Will and Living Will should be prepared immediately. Generally, many attorneys will require: 1. A note from the Doctor indicating the person is competent to sign a Power of Attorney [and Will if the Will has not yet been prepared] 2. The client to specifically advise the attorney they want to appoint the specific person to handle their financial affairs. [The attorney cannot rely on a family member saying what the client/ patient wants.]


Prior to an individual being unable to manage his or her life as a result of a mental or physical disability, legal planning should be done. If a legally prepared Power of Attorney was signed, a trusted family member, friend or professional can legally act on that person's affairs. If a Power of Attorney was not signed, an attorney may be retained to file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs.


What is a Power of Attorney?


A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. Therefore, the doctor often must determine if the recently diagnosed Alzheimer patient is competent to sign a Power of Attorney. The term "durable" in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal.


Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.


The lack of properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These require formal proceedings and are expensive in court. This means requirement of lawyers to prepare and file the necessary papers and doctors to provide medical certifications or testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. Advance preparation of the Power of Attorney can avoid the inconvenience and expense of legal Guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late.


Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantor's bills and to handle the grantor's affairs during the inability of the grantor to do the same.


Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse's signature. If a valid Power of Attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid. Without a Power of Attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.


According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be a legally incompetent/ incapacitated person." p11


1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11


Legislation (P.L. 1997, c 379) changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents. New Jersey Lawyer March 23, 1998


2. What rights does a incompetent/ incapacitated person lose? Unless a Court orders otherwise, a ward/ incompetent/ incapacitated person does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent/ incapacitated person also loses the right to marry.


3. How does somebody become the guardian of another?


Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent/ incapacitated person or are parents of an unmarried incompetent/ incapacitated person can choose who will become the guardian after the guardians die and include a clause designating their successor in their Wills. Disability Laws p12. Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent/ incapacitated person plus reasons why the incompetent/ incapacitated person is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent/ incapacitated person and prepare a report to the Court. The court costs and legal fees often exceeds $4,000.


4. Who can be a guardian?


Generally, a close relative or a person with a close relationship to the proposed incompetent/ incapacitated person who will act to protect the incompetent/ incapacitated person's best interests can be guardian. When a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.


5. What are the rights of the proposed incompetent/ incapacitated person prior to hearing?


The proposed incompetent/ incapacitated person is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.


6. Is court approval required to sell real estate if someone is declared incompetent/ incapacitated?


Yes. Your attorney can discuss transferring certain assets to qualify for Medicaid. Elder law articles are available on the website www.njlaws.com


Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/AlzheimerWills.html.

ESTATE PLANNING FOR ALZHEIMER PATIENTS & GUARDIANSHIP OF DISABLED ADULTS

Compiled by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section

If a person has been diagnosed with Alzheimer's disease, it is important to immediately conduct Estate Planning with the assistance of an attorney.

Close to 4 million Americans are thought to have Alzheimer's disease - yet half of them remain undiagnosed.

It's all too easy to mistake many early Alzheimer's disease symptoms for natural signs of aging. Initial symptoms, like forgetfulness, tend to be so subtle that they can easily be dismissed as "just getting old." Symptoms can also vary widely among individuals.

Recognizing and treating Alzheimer's disease early is vital. Early diagnosis of Alzheimer's disease is important because that is when the most can be done to slow the progression of symptoms. Early treatment can have a significant effect on maintaining a patient's current level of ability.

Find help for yourself. Many people concerned about Alzheimer's disease discover that they need additional answers. Your doctor is your primary source of information about Alzheimer's disease.

If a person has been diagnosed with Alzheimer's disease, but is still competent, a formal Power of Attorney, Will and Living Will should be prepared immediately. Generally, many attorneys will require: 1. A note from the Doctor indicating the person is competent to sign a Power of Attorney [and Will if the Will has not yet been prepared] 2. The client to specifically advise the attorney they want to appoint the specific person to handle their financial affairs. [The attorney cannot rely on a family member saying what the client/ patient wants.]

Prior to an individual being unable to manage his or her life as a result of a mental or physical disability, legal planning should be done. If a legally prepared Power of Attorney was signed, a trusted family member, friend or professional can legally act on that person's affairs. If a Power of Attorney was not signed, an attorney may be retained to file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs.

What is a Power of Attorney?

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. Therefore, the doctor often must determine if the recently diagnosed Alzheimer patient is competent to sign a Power of Attorney. The term "durable" in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These require formal proceedings and are expensive in court. This means requirement of lawyers to prepare and file the necessary papers and doctors to provide medical certifications or testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. Advance preparation of the Power of Attorney can avoid the inconvenience and expense of legal Guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late.

Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantor's bills and to handle the grantor's affairs during the inability of the grantor to do the same.

Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse's signature. If a valid Power of Attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid. Without a Power of Attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.

According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be a legally incompetent/ incapacitated person." p11

1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11

Legislation (P.L. 1997, c 379) changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents. New Jersey Lawyer March 23, 1998

2. What rights does a incompetent/ incapacitated person lose? Unless a Court orders otherwise, a ward/ incompetent/ incapacitated person does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent/ incapacitated person also loses the right to marry.

3. How does somebody become the guardian of another?

Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent/ incapacitated person or are parents of an unmarried incompetent/ incapacitated person can choose who will become the guardian after the guardians die and include a clause designating their successor in their Wills. Disability Laws p12. Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent/ incapacitated person plus reasons why the incompetent/ incapacitated person is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent/ incapacitated person and prepare a report to the Court. The court costs and legal fees often exceeds $4,000.

4. Who can be a guardian?

Generally, a close relative or a person with a close relationship to the proposed incompetent/ incapacitated person who will act to protect the incompetent/ incapacitated person's best interests can be guardian. When a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.

5. What are the rights of the proposed incompetent/ incapacitated person prior to hearing?

The proposed incompetent/ incapacitated person is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.

6. Is court approval required to sell real estate if someone is declared incompetent/ incapacitated?

Yes. Your attorney can discuss transferring certain assets to qualify for Medicaid. Elder law articles are available on the website www.njlaws.com

To schedule a consultation regarding Estate Planning for Alzheimer patients or Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500 Edison, NJ

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Elder Law and litigation topics. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.

Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/alzheimer_patient_estate_planning.htm.

ESTATE PLANNING FOR ALZHEIMER PATIENTS & GUARDIANSHIP OF DISABLED ADULTS

Compiled by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section

If a person has been diagnosed with Alzheimer's disease, it is important to immediately conduct Estate Planning with the assistance of an attorney.

Close to 4 million Americans are thought to have Alzheimer's disease - yet half of them remain undiagnosed.

It's all too easy to mistake many early Alzheimer's disease symptoms for natural signs of aging. Initial symptoms, like forgetfulness, tend to be so subtle that they can easily be dismissed as "just getting old." Symptoms can also vary widely among individuals.

Recognizing and treating Alzheimer's disease early is vital. Early diagnosis of Alzheimer's disease is important because that is when the most can be done to slow the progression of symptoms. Early treatment can have a significant effect on maintaining a patient's current level of ability.

Find help for yourself. Many people concerned about Alzheimer's disease discover that they need additional answers. Your doctor is your primary source of information about Alzheimer's disease.

If a person has been diagnosed with Alzheimer's disease, but is still competent, a formal Power of Attorney, Will and Living Will should be prepared immediately. Generally, many attorneys will require: 1. A note from the Doctor indicating the person is competent to sign a Power of Attorney [and Will if the Will has not yet been prepared] 2. The client to specifically advise the attorney they want to appoint the specific person to handle their financial affairs. [The attorney cannot rely on a family member saying what the client/ patient wants.]

Prior to an individual being unable to manage his or her life as a result of a mental or physical disability, legal planning should be done. If a legally prepared Power of Attorney was signed, a trusted family member, friend or professional can legally act on that person's affairs. If a Power of Attorney was not signed, an attorney may be retained to file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs.

What is a Power of Attorney?

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. Therefore, the doctor often must determine if the recently diagnosed Alzheimer patient is competent to sign a Power of Attorney. The term "durable" in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These require formal proceedings and are expensive in court. This means requirement of lawyers to prepare and file the necessary papers and doctors to provide medical certifications or testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. Advance preparation of the Power of Attorney can avoid the inconvenience and expense of legal Guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late.

Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantor's bills and to handle the grantor's affairs during the inability of the grantor to do the same.

Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse's signature. If a valid Power of Attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid. Without a Power of Attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.

According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be a legally incompetent/ incapacitated person." p11

1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11

Legislation (P.L. 1997, c 379) changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents. New Jersey Lawyer March 23, 1998

2. What rights does a incompetent/ incapacitated person lose? Unless a Court orders otherwise, a ward/ incompetent/ incapacitated person does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent/ incapacitated person also loses the right to marry.

3. How does somebody become the guardian of another?

Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent/ incapacitated person or are parents of an unmarried incompetent/ incapacitated person can choose who will become the guardian after the guardians die and include a clause designating their successor in their Wills. Disability Laws p12. Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent/ incapacitated person plus reasons why the incompetent/ incapacitated person is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent/ incapacitated person and prepare a report to the Court. The court costs and legal fees often exceeds $4,000.

4. Who can be a guardian?

Generally, a close relative or a person with a close relationship to the proposed incompetent/ incapacitated person who will act to protect the incompetent/ incapacitated person's best interests can be guardian. When a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.

5. What are the rights of the proposed incompetent/ incapacitated person prior to hearing?

The proposed incompetent/ incapacitated person is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.

6. Is court approval required to sell real estate if someone is declared incompetent/ incapacitated?

Yes. Your attorney can discuss transferring certain assets to qualify for Medicaid. Elder law articles are available on the website www.njlaws.com

To schedule a consultation regarding Estate Planning for Alzheimer patients or Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500 Edison, NJ

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Elder Law and litigation topics. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.

Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/alzheimer_patient_estate_planning.htm.

ADMINISTRATION OF ESTATES, PROBATE AND DECEDENTS- Law in New Jersey 3B:10-6

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

Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/AdministrationEstate.html.

RULE 4:87. Probate Accountings, ACTIONS FOR THE SETTLEMENT OF ACCOUNTS

4:87-1. Procedure
(a) Actions to settle the accounts of executors, administrators, testamentary trustees, non-testamentary trustees, guardians and assignees for the benefit of creditors shall be brought in the county where such fiduciaries received their appointment. The action shall be commenced by the filing of a complaint in the Superior Court, Chancery Division, and upon issuance of an order to show cause pursuant to R. 4:83. A non-testamentary trustee shall annex to the complaint a copy of the written instrument creating the trust and stating its terms. The order to show cause shall state the amount of commissions and attorney's fee, if any, which are applied for. (b) An action may be commenced by an interested person to compel a fiduciary referred to in paragraph (a) of this rule to settle his or her account, and, in appropriate circumstances, to file an inventory and appraisement. Note: Source-R.R. 4:105-1, 4:105-2, 4:105-4(a)(b), 5:3-6(a)(b). Former R. 4:86-1, 4:86-2 and 4:86-3 deleted and new R. 4:87-1 adopted June 29, 1990 to be effective September 4, 1990. 4:87-2. Complaint

The complaint in an action for the settlement of an account (a) shall contain the names and addresses of all persons interested in the account, including any surety on the bond of the fiduciary, specifying which of them, if any, are minors or mentally incapacitated persons, the names and addresses of their guardians, or if there is no guardian then the names and addresses of the parents or persons standing in loco parentis to the minors; (b) shall specify the period of time covered by the account and contain a summary of the account. The summary shall state, all as shown by the account: (1) in the case of a first accounting, the amount for which the accountant was chargeable as of the date the trust or obligation devolved upon him or her, or where an inventory is on file, the amount of the inventory; or in the case of a second or later accounting, the balance remaining in the hands of the accountant as shown in the last previous account; (2) the amount for which the accountant became chargeable in addition thereto; (3) the total of the first two items; (4) the amount of the allowances claimed in the account; and (5) the balance in the accountant's hands. Charges and allowances sought on account of corpus and income shall be stated separately both in the summary and in the account; (c) shall have annexed thereto the account which shall be dated; (d) shall ask for the allowance of the account, and also for the allowance of commissions and a fee for the accountant's attorney, if accountant intends to apply therefor; and (e) shall be filed at least 20 days prior to the day on which the account is to be settled. Note: Source-R.R. 4:106-1. Paragraph (e) adopted June 29, 1973 to be effective September 10, 1973; former R. 4:87-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (a) amended July 12, 2002 to be effective September 3, 2002.

4:87-3. Form of Account; Statement of Assets to Be Annexed to Account

(a) Form of Account. The charges and allowances as to principal and income and the statements required to be annexed to the account may be typed or in the form of computer or machine printouts; and, where appropriate, the accountant may use a single schedule for the presentation of portions of the account, but charges and allowances as to corpus and income shall be stated separately. (b) Statement to Be Annexed to Account. To all accounts shall be annexed: (1) a full statement or list of the investments and assets composing the balance of the estate in the accountant's hands, setting forth the inventory value or the value when the accountant acquired them and the value as of the day the account is drawn, and also stating with particularity where the investments and assets are deposited or kept and in what name; (2) a statement of all changes made in the investments and assets since they were acquired or since the day of the last account, together with the date the changes were made; (3) a statement as to items apportioned between principal and income, showing the apportionments made; (4) a statement as to apportionments made with respect to transfer inheritance or estate taxes; (5) a statement of allocation if counsel fees, commissions and other administration expenses have been paid out of corpus, but the benefits of the deductions from corpus have been allocated in part or in whole to income beneficiaries for tax purposes; and (6) a statement showing how the commissions requested, with respect to corpus, are computed, and in summary form the assets or property, if any, not appearing in the account on which said commissions are in part based. Note: Source-R.R. 4:106-2. Paragraph (a) adopted and paragraphs (b) (c) (d) (e) and (f) redesignated June 29, 1973 to be effective September 10, 1973; paragraph (b) of former R. 4:87-2 amended and rule redesignated June 29, 1990 to be effective September 4, 1990. 4:87-4. Service

(a) Process shall be the order to show cause. If the names and addresses of all parties interested in the account are known, the order to show cause together with a copy of the complaint, both certified by plaintiff's attorney to be true copies, shall be mailed by registered or certified mail, return receipt requested, as follows: to all such persons who reside in the State at least 20 days prior to the return date; to all such persons who reside outside this State but within a state of the United States or the District of Columbia, at least 30 days prior to the return date; and to all such persons who reside outside the United States at least 60 days prior to the return date. If any person interested is a minor or mentally incapacitated person and except as otherwise provided by R. 4:26-3 (virtual representation), service shall be made on the person or persons upon whom a summons would have to be served pursuant to R. 4:4-4(a)(2) and (3) unless a guardian ad litem is required under R. 4:26-2. A surety on the fiduciary's bond shall be deemed an interested person. Upon the request of any interested party a copy of the account shall be furnished by the fiduciary prior to the date of hearing. (b) If the names or addresses of any persons interested in the account are unknown, notice of the accounting shall be given to the Attorney General at least 45 days prior to the return date, and plaintiff shall file an affidavit of inquiry as to such names or addresses made in accordance with R. 4:4-5(c)(2). The court may then enter such order for service of process as it deems proper including publication of a notice of the proceedings in accordance with R. 4:4-5(c) at least 30 days before the return date. (c) Proof of mailing, and of publication where ordered, shall be filed before the account is allowed.

4:87-5. Vouchers

Vouchers in support of allowances claimed in an account shall be made available for inspection by an interested person during business hours at the office in this State of the accountant or of the accountant's attorney. They shall be presented to the court only if requested by the court or by an interested person, or, as to particular allowances, by the Surrogate auditing the account. Vouchers presented to the court or the Surrogate shall be returned to the accountant or the accountant's attorney after the settlement of the account.

4:87-6. Audit and Report on Accounts

The Surrogate as deputy clerk of the court shall audit the accounts of all fiduciaries unless otherwise ordered by the court pursuant to R. 4:53-7(b), shall place the same on file at least 20 days prior to its presentation to the court, and shall make a report to the court upon the audit not later than the day on which the account is settled. The report shall specify the derelictions, if any, and other matters that in the Surrogate's opinion should be brought to the court's attention. Note: Source-R.R. 4:106-5; amended July 15, 1982 to be effective September 13, 1982; former R. 4:87-5 amended and rule redesignated June 29, 1990 to be effective September 4, 1990. 4:87-7. Report of Guardian Ad Litem

A guardian ad litem for a minor or mentally incapacitated person shall file a written report with the court at least 7 days prior to the day on which the account is settled. If the guardian applies for the allowance of a fee in excess of $1,000 the report shall include, or be accompanied by, an affidavit of services. Notice of all applications for allowances shall be given as provided by R. 4:26-2(c).

4:87-9. Dispensing With Accounting by Agreement

If all parties interested in any separable part of an account, such as income, are of full age and competent, and so agree in writing, there need be no accounting as to the same.

Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/AccountingProbate.html.

EDITOR-VOLUNTEER INTERN WANTED - To serve as Assistant Editor of American Bar Association GP Solo Elder Law Newsletter and Assistant Editor of the NJ

Duties
- Review and Revise Legal and Consumer Law Articles for Grammar and Punctuation
- Work as Assistant Editor of the New Jersey Municipal Court Law Review
- Prepare Correspondence to websites and New Jersey Media with Revised Articles
- Provide copies of published articles to Judges, Prosecutors and other New Jersey professionals
- Assist in Marketing projects
- Type Rough Draft Articles
- Gain some legal and publication experience
- Part-time volunteer, 10 hours per week required
- Fall and Spring Semesters available
Editor Kenneth A. Vercammen, Esq.
Author of 125 Legal Articles
Send resume and cover letter :
Mail or fax cover letter and resume. Do not email.
Kenneth Vercammen & Associates, PC
2053 Woodbridge Avenue, Edison, NJ 08817 [near Rt 287 and the NJ Turnpike]
PHONE 732-572-0500 (Fax) 732-572-0030


Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/ABAEditor.html

3B:14-23 Powers of a Fiduciary, Executor in a Probate Estate

The Law Offices of Kenneth Vercammen & Associates, handles Probate, contesting wills, contesting estates, trust mismanagement and theft, Probate disputes, inheritance problems, estate mismanagement and theft, undue influence, lack of legal capacity, contentious probates, and other relevant matters. We encourage you to consult an attorney for a confidential consultation if you are faced with any of these situations.

Do you think you're entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

You should call to schedule an in-office consultation.

The following New Jersey statute sets forth the Powers of Fiduciary/ Executor.

3B:14-23 Powers of a Fiduciary, Executor.

3B:14-23. Powers. In the absence of contrary or limiting provisions in the judgment or order appointing a fiduciary, in the will, deed or other instrument or in a subsequent court judgment or order, every fiduciary shall, in the exercise of good faith and reasonable discretion, have the power:

a. To accept additions to any estate or trust from sources other than the estate of the decedent, minor, mental incompetent or the settlor of a trust;

b. To acquire the remaining undivided interest in an estate or trust asset in which the fiduciary, in his fiduciary capacity, holds an undivided interest;

c. To invest and reinvest assets of the estate or trust under the provisions of the will, deed or other instrument or as otherwise provided by law and to exchange assets for investments and other property upon terms as may seem advisable to the fiduciary;

d. To effect and keep in force fire, rent, title, liability, casualty or other insurance to protect the property of the estate or trust and to protect the fiduciary;

e. With respect to any property or any interest therein owned by an estate or trust, including any real property belonging to the fiduciary's decedent at death, except where the property or any interest therein is specifically disposed of:

(1)To take possession of and manage the property and to collect the rents therefrom, and pay taxes, mortgage interest and other charges against the property;

(2)To sell the property at public or private sale, and on terms as in the opinion of the fiduciary shall be most advantageous to those interested therein;

(3)With respect to fiduciaries other than a trustee, to lease the property for a term not exceeding three years, and in the case of a trustee to lease the property for a term not exceeding 10 years, even though the term extends beyond the duration of the trust, and in either case including the right to explore for and remove mineral or other natural resources, and in connection with mineral leases to enter into pooling and unitization agreements;

(4)To mortgage the property;

(5)To grant easements to adjoining owners and utilities;

(6)A fiduciary acting under a will may exercise any of the powers granted by this subsection e. notwithstanding the effects upon the will of the birth of a child after its execution;

f. To make repairs to the property of the estate or trust for the purpose of preserving the property or rendering it rentable or saleable;

g. To grant options for the sale of any property of the estate or trust for a period not exceeding six months;

h. With respect to any mortgage held by the estate or trust to continue it upon and after maturity, with or without renewal or extension, upon terms as may seem advisable to the fiduciary and to foreclose, as an incident to collection of any bond or note, any mortgage and purchase the mortgaged property or acquire the property by deed from the mortgagor in lieu of foreclosure;

i. In the case of the survivor or survivors of two or more fiduciaries to administer the estate or trust without the appointment of a successor to the fiduciary or fiduciaries who have ceased to act and to exercise or perform all of the powers given unless contrary to the express provision of the will, deed or other instrument;

j. As a new, alternate, successor, substitute or additional fiduciary or fiduciaries, to have or succeed to all of the powers, duties and discretion of the original fiduciary or fiduciaries, with respect to the estate or trust, as were given to the original fiduciary or fiduciaries named in or appointed by a will, deed or other instrument, unless the exercise of the powers, duties or discretion of the original fiduciary or fiduciaries is expressly prohibited by the will, deed or other instrument to any successor or substitute fiduciary or fiduciaries;

k. Where there are three or more fiduciaries qualified to act, to take any action with respect to the estate or trust which a majority of the fiduciaries shall determine; a fiduciary who fails to act through absence or disability, or a dissenting fiduciary who joins in carrying out the decision of a majority of the fiduciaries if his dissent is expressed promptly in writing to his cofiduciaries, shall not be liable for the consequences of any majority decision, provided that liability for failure to join in administering the trust or to prevent a breach of trust may not thus be avoided;

l. To employ and compensate attorneys for services rendered to the estate or trust or to a fiduciary in the performance of his duties;

m. To compromise, contest or otherwise settle any claim in favor of the estate, trust or fiduciary or in favor of third persons and against the estate, trust or fiduciary, including transfer inheritance, estate, income and other taxes;

n. To vote in person or by proxy, discretionary or otherwise, shares of stock or other securities held by the estate or trust;

o. To pay calls, assessments and any other sums chargeable or accruing against or on account of shares of stock, bonds, debentures or other corporate securities in the hands of a fiduciary, whenever the payments may be legally enforceable against the fiduciary or any property of the estate or trust or the fiduciary deems payment expedient and for the best interests of the estate or trust;

p. To sell or exercise stock subscription or conversion rights, participate in foreclosures, reorganizations, consolidations, mergers or liquidations, and to consent to corporate sales or leases and encumbrances, and, in the exercise of those powers, the fiduciary is authorized to deposit stocks, bonds or other securities with any custodian, agent, protective or other similar committee, or trustee under a voting trust agreement, under terms and conditions respecting the deposit thereof as the fiduciary may approve;

q. To execute and deliver agreements, assignments, bills of sale, contracts, deeds, notes, receipts and any other instrument necessary or appropriate for the administration of the estate or trust;

r. In the case of a trustee:

(1)To hold two or more trusts or parts of trusts created by the same instrument, as an undivided whole, without separation as between the trusts or parts of the trusts, provided that separate trusts or parts of trusts shall have undivided interests and provided further that no holding shall defer the vesting of any estate in possession or otherwise;

(2)To divide a trust, before or after its initial funding, into two or more separate trusts, provided that such division will not materially impair the accomplishment of the trust purposes or the interests of any beneficiary. Distributions provided for by the governing instrument may be made from one or more of the separate trusts;

s. To distribute in kind any property of the estate or trust as provided in article 1 of chapter 23 of this title;

t. To join with the surviving spouse, the executor of his or her will or the administrator of his or her estate in the execution and filing of a joint income tax return for any period prior to the death of a decedent for which he has not filed a return or a gift tax return on gifts made by the decedent's surviving spouse, and to consent to treat the gifts as being made one-half by the decedent, for any period prior to a decedent's death, and to pay taxes thereon as are chargeable to the decedent;

u. To acquire or dispose of an asset, including real or personal property in this or another state, for cash or on credit, at public or private sale, and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

v. To continue any business constituting the whole or any part of the estate for so long a period of time as the fiduciary may deem advisable and advantageous for the estate and persons interested therein;

w. In the case of a qualified bank as defined in section 1 of P.L. 1948, c.67 (C. 17:9A-1), and an out-of-State bank as defined in section 1 of P.L. 1948, c.67 (C. 17:9A-1), which has established a trust office in this State to purchase, sell and maintain for any fiduciary account, securities issued by an investment company which is operated and maintained in accordance with the "Investment Company Act of 1940," 15 U.S.C.s. 80a-1 et seq., and for which the qualified bank or out-of-State bank is providing services as an investment advisor, investment manager, custodian or otherwise, including those for which it receives compensation, if:

(1)The investment is otherwise in accordance with applicable fiduciary standards; and

(2)The investment is authorized by the agreement or instrument creating the fiduciary account that gives the qualified bank or out-of-State bank investment authority, or by court order; or

(3)The qualified bank or out-of-State bank provides written notice not less than annually by prospectus, account statement or otherwise, disclosing to any current income beneficiaries of the trust the services provided by the qualified bank or its affiliate or out-of-State bank to the investment company, and the rate, formula, or other method by which compensation paid to the qualified bank or its affiliate or out-of-State bank is determined and the qualified bank or out-of-State bank does not receive a written objection from any current income beneficiary within 30 days after receipt of this notice. If a written objection is received from any current income beneficiary pursuant to this paragraph (3), no such investment of the trust assets of that fiduciary account shall be made or maintained.

Such investment shall not be deemed self-dealing or a fiduciary conflict; nor shall the fact that other beneficiaries of fiduciary accounts of the qualified bank or out-of-State bank have similar investments be deemed to be an improper commingling of assets by the qualified bank or out-of-State bank.

For purposes of this subsection, "fiduciary account" shall include a trust, estate, agency or other account in which funds, property, or both, are held by a qualified bank pursuant to section 28 of P.L. 1948, c.67 (C. 17:9A-28), or an account for which a qualified bank or out-of-State bank acts as investment advisor or manager or an account held by an out-of-State bank as defined in section 1 of P.L. 1948, c. 67 (C. 17:9A-1);

x. To employ and compensate accountants from the fiduciary fund for services rendered to the estate or trust or to a fiduciary in the performance of the fiduciary's duties, including the duty of a corporate or other fiduciary with respect to the preparation of accountings, without reduction in commissions due to the fiduciary, so long as such accountings are not the usual, customary or routine services provided by the fiduciary in light of the nature and skill of the fiduciary. In evaluating the actions of the fiduciary under this subsection, the court shall consider the size and complexity of the fiduciary fund, the length of time for which the accounting is rendered, and the increased risk and responsibilities imposed on fiduciaries as a result of revisions to laws affecting fiduciaries including, but not limited to, the "Uniform Principal and Income Act," P.L. 2001, c.212 (C. 3B: 19B-1 et seq.) and the "Prudent Investor Act," P.L. 1997, c.26 (C. 3B:20-11.1 et seq.) provided that such revisions of the laws affecting fiduciaries were enacted after the fiduciary responsibilities under the corresponding will, deed or other instrument, or court judgment or order, were imposed on, and assumed by, the fiduciary. For purposes of this subsection, "Accountant" means a person who is registered as a certified public accountant pursuant to the provisions of P.L. 1997, c.259 (C. 45:2B-42 et seq.), or an accounting firm which is organized for the practice of public accounting pursuant to the provisions of P.L. 1997, c.259 (C. 45:2B-42 et seq.) and P.L. 1969, c.232 (C. 14A:17-1 et seq.); and

y. The powers set forth in this section are in addition to any other powers granted by law, and by a will, deed or other instrument.

3B:14-24. Authorization to exercise other powers The court having jurisdiction of the estate or trust may authorize the fiduciary to exercise any other power which in the judgment of the court is necessary for the proper administration of the estate or trust.

3B:14-25. Payment of debt or delivery of certain personal property; requirements After the expiration of 60 days from the appointment of a domiciliary foreign fiduciary, any person indebted to the estate or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign fiduciary upon being presented with a certificate of his letters or other proof of his authority and an affidavit made by or on his behalf stating:

a. The date of the letters of the domiciliary foreign fiduciary, or the date when he first received authority to act;

b. That no letters have issued in this State and no action therefor is pending in this State; and

c. That the domiciliary foreign fiduciary is entitled to payment or delivery.

For Probate and Estate Administration matters, schedule a confidential consultation with Kenneth Vercammen, 732-572-0500

KENNETH VERCAMMEN, ESQ.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002; Temple Beth Or 2002; Hall's Corner/ East Brunswick 2002; -Linden AARP 2002 -Woodbridge Adult School -Wills and Estate Administration -2001, 2000,1999,1998,1997,1996 Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001; -Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 -North Brunswick Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993 -Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic Association Other Seminars -Automobile Insurance - Middlesex County College - 1990 -Criminal & Juvenile Courts Piscataway Vo Tech - 1990 Defending Speeding Cases - New Jersey State Bar Association/NJSBA - 1989 Self Defense and Home Protection - Speaker - New Brunswick Crime Watch - 1989

New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present

ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991


Edited by: Erica Scavone
For more information go to http://www.centraljerseyelderlaw.com/powers_of_a_fiduciary.htm.