Kenneth Vercammen, Esq. handles Probate, Estate Administration and Wills. He was a speaker at the American Bar Association ABA Annual meeting and is Co-Chair of the Probate & Estate Planning Committee. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com or call.
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
(732) 572-0500
www.njlaws.com

Monday, September 29, 2014

Confidential Power of Attorney Questionnaire

Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.
Please be sure to check all appropriate boxes. If "NONE", please state "NONE".
If "NOT APPLICABLE", please state "N/A".
PLEASE PRINT CLEARLY
1. Your Full Name:

_______________________________________________________________
First Last
2. IF MARRIED OR SEPARATED, complete (a) and (b) below:
(a) Spouses Full Name:

______________________________________________________
First Last

3. Your Street Address: ____________________________________

City ____________________ State ____ Zip Code ______________

4. Telephone Numbers:

Cell: _______________________________ ________________________

Day: ____________________/Night: ________________________

5. E-mail address: _______________________________________

6. Referred By: ___________________________________________
If referred by a person, is this a client or attorney? If you heard about the law office on the internet, which search engine? What search terms did you use?

7. Todays Date ____________________

We recommend a Durable Power of Attorney in the event of your physical
or mental disability to help you with financial affairs?
Yes ________ No ________

We recommend a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan?
Yes ________ No ________

How can we help you? What are your questions/other important information?

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
[It is required by Court Rules that all pages be filled out in persons own handwriting prior to seeing the attorney to avoid conflicts of interest]

8. Your Sex: [ ] Male [ ] Female

9. Your Marital Status: [ ] Single [ ] Married [ ] Separated [ ] Divorced [ ] Widowed

10. Your Date of Birth: ___________________ SS # __________________
Month Day Year

11. Spouse Date of Birth: _________________ SS # __________________
Month Day Year
2. Personal representative
The person charged with administering bills, paying taxes and/or other debts, preserving, managing, and distributing assets and property is called the Personal Representative. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Personal Representative r, followed by the child who lives closest to your home.
Please provide the following information about the person you wish to name to serve in this capacity.
1. PRIMARY Choice of Personal Representative:

Name: _________________________ ______________________________
First Last

Relationship: _______________ Address: ________________________

2. SECOND Choice of Personal Representative:
This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.

Name: _________________________ ______________________________
First Last

Relationship: _______________ Address: _____________________________
The two proposed of Personal Representative s must be filled out prior to meeting the attorney. We do not recommend Joint of Personal Representative s, which often cause conflicts and additional work for the Estate. It is best to select one primary person, then a secondary person.

Complaint to Admit Photocopy of Will


Under New Jersey Law, the people selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary tax returns, file paperwork with the surrogate, then distribute the assets to beneficiaries. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.
In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, occasionally the Executor simply fails to timely carry out their duties. When there is only a copy of the Executor will have their attorney File a Complaint in Superior Court.
COMPLAINT TO ADMIT COPY OF WILL
A Complaint to admit copy of will is filed with the Superior Court Probate Part. A signed certification of the Executor and beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney notify potential beneficiary, plus to appear before the court at a specific date and time. Competent elder law/probate attorney may charge an hourly rate of $270-$380 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.
COURT RULE 4:84. THE FOLLOWING ARE COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT 4:84-1. In General
In any case in which, under R. 4:82, the Surrogates Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.
4:84-2. Probate in the Superior Court
If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogates Court. Letters of appointment shall then be issued by the Surrogates Court.

Compelling the Sale of Jointly Owned Houses, the Partition Suit


As times change, often people buying houses are not the traditional husband and wife couple. Mortgage companies are now usually willing to grant mortgage to boyfriend-girlfriend relationships or gay couples. However, if there is a breakup of relationships, a divorce complaint cannot be filed to compel the sale or division of assets. Instead, a partition suit can be filed in the Superior Court-Chancery Division - General Equity.
The partition suit originated from the English common law. Centuries ago, most property simply were farms. If co-owners could not voluntarily agree on a buy-out, or sole ownership, the Chancellor (an English Judge) could simply order the property/farms divided, or partitioned down the middle. In modern days, houses, condos and most land cannot be divided down the middle. Therefore, in a partition suit, the Superior Court Judge is usually asked to order the house sold and net proceeds divided.
A partition suit is usually started by having your attorney file a verified complaint for partition, signed by both you and the attorney. In addition, an Order to Show Cause is filed. This is a proposed order to be signed by the judge, compelling the defendant / the property owner to appear with their attorney and answer why the court should not award the relief requested with the original complaint. The defendant is also provided with time to file an answer plus counter-claim.
When there are issues other than an equal division of real property, the property owner, through their attorney, may conduct discovery. The three main methods of discovery under the New Jersey court rules are:
1) Interrogatories
2) Request for documents and
3) Deposition-which is live questioning under oath in front of a court reporter.
In partition suits, financial records may have to be produced to the court indicating who paid for household improvements, mortgage payments, taxes, utilities, etc. It is important to keep accurate records. If you dont have records, you will have to recreate records. Partition suits are often similar to divorce cases in which the parties have deep emotional feelings. However, often the bottom line is money. How much will be left after mortgage, taxes and any lien are satisfied is really the main issue.

Partition actions in New Jersey are governed by NJSA 2A:56-1:
2A:56-1. "Cotenant" ; executor or administrator with will annexed; definition and construction
As used in this chapter:

"Court" means the superior court.

"Cotenant" means and includes a tenant in common, joint tenant or coparcener, but not a tenant by the entirety.

An executor or administrator with the will annexed, having, by the terms of the testators will, power to sell any real estate or any undivided interest in any real estate of which his testator died seized, shall have the same power to bring an action to effect a partition of such real estate as such testator might have brought if living, and cotenant as used in this chapter shall include such an executor or administrator so far as may be requisite for such purposes.

2A:56-2. Partition through sale
The superior court may, in an action for the partition of real estate, direct the sale thereof if it appears that a partition thereof cannot be made without great prejudice to the owners, or persons interested therein.

2A:56-3. Division of part of real estate and sale of residue
In any action for partition in the superior court, part of the real estate included in the application may be divided and the remainder sold when it appears by the report of the commissioner or commissioners, which shall designate the lands to be divided and those to be sold, and by other satisfactory evidence that the whole of the real estate cannot be divided among the owners and proprietors without great prejudice to their interest.

Court Rule 4:63-1. permits courts to order the Sale of a property.
Rule 4:63-1- Partition; Dower; Curtesy
If in an action for partition or for the admeasurement of dower or curtesy, the court shall be satisfied that a division of the real estate can be made without great prejudice to the owners thereof, it may appoint one or more persons as commissioners to ascertain and report in writing the metes and bounds of each share; if not so satisfied, it may direct a sale or, in its discretion, if the action is one for dower or curtesy, an assignment from the rents and profits.

Zudiak v Szuryk 93 NJ Eq. 559, 561 (Chan 1922) established the power of the Court to order the sale of land if actual partition cannot be made.

Many counties in New Jersey have set up mediation panels to attempt to help parties resolve issues and avoid trials. The mediators are licensed attorneys volunteering their time to help the superior court. Most cases settle without an expensive lengthy trial. Hopefully, parties can put their emotional feelings aside, cut their court costs and settle without a trial.

Communication Is the Key


Many people prefer to keep their legal documents private. With end of life issues, however, communicating your wishes is essential. An advance health care directive is the first step in this process. But, you also need to discuss your preferences with others. Take the time to discuss these issues with the person you appoint as your health care proxy. Talk to your physician. Make sure your family knows how you feel about end of life issues. The more these individuals know, the easier it will be for them to fulfill your wishes.

Common Questions



How do I title accounts? Each bank or investment firm may have its own format, but generally you may use, for a trust, "Alice Carroll, Trustee, Lewis Carroll Trust dated January 19, 1998," or, in a shorthand version, "Alice Carroll, Trustee under agreement dated January 19, 1998." For an estate, "Alice Carroll, Executor, Estate of Lewis Carroll, Deceased."
How do I sign my name in a fiduciary capacity? An executor signs: "Alice Carroll, Executor (or Personal Representative) of the Estate of Lewis Carroll, Deceased". A trustee signs: "Alice Carroll, Trustee".
Where do I hold the estate or trust assets? If you engage a trust company, they will open an account in the name of the estate or trust and provide regular statements showing all income and disbursements. You can open an investment account with a bank or brokerage company in the name of the estate or trust. All expenses and disbursements must be made from these accounts, and you should receive regular statements.
How (and how much) do I get paid? Fiduciary work is time-consuming and can be difficult; it is appropriate to seek payment for your services. The will or trust agreement may set forth the compensation. If they do not, many states provide either a fixed schedule to which you must adhere, or allow "reasonable" compensation, which usually takes into account the size of the estate, the complexity involved, and the time spent by the fiduciary. Executors or trustees fees are taxable compensation to you. As stated above, several states do not permit the fiduciary to pay his or her own compensation without a court order; check with your attorney before you write yourself a check.
What if a beneficiary complains? Even professional fiduciaries, such as trust companies, receive complaints from time to time. The best way to deal with them is to do your best to avoid them in the first place by following these guidelines and consulting with an attorney experienced in estate administration. Many complaints arise because beneficiaries are not kept up to date on the administration of the trust or estate. Frequent communication with beneficiaries is a must. Whenever possible, consult with an attorney who specializes in trust and estate matters when a complaint involves more than routine issues.
Can I be sued or be held personally liable? Your errors or mismanagement of a trust and estate can indeed subject you to personal liability. Common pitfalls include not paying tax or filing returns on time, improper investment choices (whether too conservative, too speculative, or favoring one beneficiary over another), self-dealing (buying assets for yourself or your family from the estate or trust, whether or not at market price), or allowing property or casualty insurance to lapse, resulting in a loss to the account. Your best protection is to get good professional advice and to fully document your actions and decisions.
How am I discharged as fiduciary at the end of the administration? What if I want to resign? Whether you stop acting because the estate or trust has terminated, or you wish to resign before the conclusion of your administration, you must be discharged, either by the local court or by the beneficiaries. In some states, this is a formal process, involving the preparation of an accounting. In others, a relatively simple document signed by the beneficiaries can be used. If you are resigning prior to the conclusion of your administration, check the document to see who succeeds you as fiduciary. If no successor is named, you may need a court proceeding to appoint a successor before you can be discharged.

Coercion as Defense to Will or Power of Attorney


One of the major cases dealing with undue influence was Haynes v. First National State Bank of New Jersey, 87 N.J. 163, 75-76 (1981). Here the Supreme Court held that the burden of proof establishing undue influence shifts to the proponent when a will benefits a person who stood in a confidential relationship to the decedent and there are suspicious circumstances which need explanation. The suspicious circumstances need only be slight. Id. at 176. Moreover, when the evidence is almost entirely in the possession of one party and the evidence points to the proponent as asserting undue influence, a clear and convincing standard may be applied rather than the normal burden of proof of preponderance of the evidence. Id. at 183.
Furthermore, the Haynes analysis was extended to situations in which there is a transfer of property where the beneficiary of the property and an attorney is on one side and the donor on the other. See Oachs v. Stanton, 280 N.J. Super. 478, 483 (App. Div. 1995).
The court in Oachs determined that under circumstances such as these the donee bears the burden of proof to establish the validity of the gift, even in situations in which the donee did not dominate the decedent¹s will. Id. at 485. This rule was established to protect a donor from making a decision induced by a confidential relationship the donee possesses with the donor. Id. Again, the burden is a clear and convincing standard. Id.
The Supreme Court in Pascale v. Pascale, 113 N.J. 20, 31 (1998), stated that when a donor makes a gift to a donee that he/she is dependent upon, a presumption arises that the donor did not understand the consequences of his/her act. In these situations the donee must demonstrate that the donor had disinterested and competent counsel. Id. Likewise, undue influence is conclusive, when a mentally or physically weakened donor makes a gift without advice or a means of support, to a donee upon whom he/she depends. Id.
A confidential relationship can be found to exist when one is certain that the parties dealt on unequal terms. In re Stroming¹s Will, 12 N.J. Super. 217, 224 (1951). The appropriate inquiry is if a confidential relationship existed, did the parties deal on terms and conditions of equality? Blake v. Brennan, 1 N.J. Super. 446, 453 (1948). Suspicious circumstances are not required to create a presumption of undue influence with regard to inter vivos gifts and the presumption of undue influence is more easily raised in an inter vivos transfer. See Pascale, supra, 113 N.J. at 31; Bronson v. Bronson, 218 N.J. Super. 389, 394 (App. Div. 1987).
Generally, an adult is presumed to be competent to make an inter vivos gift. See Conners v. Murphy, 100 N.J. Eq. 280, 282 (E. & A. 1926); Pascale v. Pascale, 113 N.J. 20, 29 (1988). However, when a party alleges undue influence with regard to an inter vivos gift, the contesting party must prove undue influence existed or that a presumption of undue influence should arise. Pascale, supra, 113 N.J. at 30. A presumption of undue influence arises when a confidential relationship exists between the donor and donee or where the contestant proves the donee dominated the Will of the donor. Id.; see also Seylaz v. Bennett, 5 N.J. 168, 172 (1950); In re Dodge, 50 N.J. 192, 227 (1967); Mott v. Mott, 49 N.J. Eq. 192, 198 (Ch. 1891); Oachs v. Stanton, 280 N.J. Super. 478 (App. Div. 1995) (holding that where a confidential relationship existed and that the donor did not rely upon the donee, a shifting of the burden was still appropriate); In re Neuman¹s Estate, 133 N.J. Eq. 532, 534-35 (E. & A. 1943) (stating in a will context ³Such burden does not shift merely because of the existence of a confidential relationship, without more, as in the matter of gifts inter vivos.²) The In re Dodge court explained why a presumption of undue influence arises in a confidential relationship and stated: ³In the application of this rule it is not necessary that the donee occupy such a dominant position toward the donor as to create an inference that the donor was unable to assert his will in opposition to that of the donee.² In Re Dodge, 50 N.J. 192 (1967). The court referenced a much earlier case in explaining the rule¹s application: "Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee, as it is to afford him protection against the consequences voluntary action on his part induced by the existence of the relationship between them, the effect of which upon his own interests he may only partially understand or appreciate." In re Dodge, supra, 50 N.J. at 228 citing Slack v. Rees, 66 N.J. Eq. 447, 449 (E. & A. 1904). In sum, once it is proven that a confidential relationship exists the burden shifts to the donee to show by clear and convincing evidence that no undue influence was used. Although the case law indicates suspicious circumstances need not be shown the donee must show all was fair, open and voluntary, no deception was practiced and that the transaction was well understood. Pascale, supra, 113 N.J. at 31; see also In re Dodge, supra, 50 N.J. at 227; Seylaz, supra, 5 N.J. at 173. Furthermore, confidential relationships arise in all types of relationships ³whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.² In re Fulper¹s Estate, 99 N.J. Eq. 292, 314 (Prerog. Ct. 1926); see Pascale, supra, 113 N.J. at 34. It appears confidential relationships exist in all cases in which: "The relations between the [contracting] parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from over-mastering influence; or on the other from weakness, dependence or trust justifiably reposed, unfair advantage is rendered probable." Pascale, supra, 113 N.J. at 34, quoting In re Fulper, supra, 99 N.J. Eq. at 314; see also In re Dodge, supra, 50 N.J. at 228.
In determining whether the Defendant was the dominant person in the relationship there is no clear cut rule and instead the court must look to the particular circumstances of the matter. In re Fulper, supra, 99 N.J. Eq. at 315; Giacobbi v. Anselmi, 18 N.J. Super. 600, 616 (Ch. Div. 1952). In Fulper the court determined that a confidential relationship existed in a father-son relationship in which the father was advanced in age, weak and physically depended upon the son. Moreover, since the father sought the son¹s assistance on business matters, lived with the son during the winter months and gave the son joint and several power over his checking account an actual repose of trust and confidence in the son was demonstrated. In re Fulper, supra, 99 N.J. Eq. at 318.
In the Giacobbi case, supra, a confidential relationship was determined to exist between a mother and daughter, even though the mother did not suffer from mental or physical infirmity. There the mother was found to be alert, active, and somewhat independent. However, she turned to the daughter for small issues and problems when they occurred. Giacobbi, supra, 18 N.J. Super. at 617.
Therefore, the burden can shift to Defendant to prove by clear and convincing evidence the transaction was not unduly influenced. Furthermore, where a donor makes an ³improvident² gift to the donee upon whom she depends that strips the donor of all or virtually all their assets, as here, a presumption arises that the donor did not understand the consequences of their act. Pascale, supra, 113 N.J. at 31, citing Vanderbach v. Vollinger, 1 N.J. 481, 489 (1949). Under those circumstances the donee must establish that the donor had the advice of competent and disinterested counsel. Id. citing Vanderback, supra, 1 N.J .at 488-89. Similarly, when a mentally or physically weakened donor makes a gift to a donee whom the donor is dependent upon, without advice, and the gift leaves the donee without adequate means of support, a conclusive presumption of undue influence arises. Id. citing Seylaz, supra, 5 N.J. at 173. However, when a donor is not dependent upon the donee ³independent advice is not a prerequisite to the validity of an improvident gift even though the relationship between the parties is one of trust and confidence.² Id. citing Seylaz, supra, 5 N.J. at 173.
Although suspicious circumstances are not required to be established in an inter vivos transfer for a presumption of undue influence to exist, thereby shifting the burden of proof, Plaintiff has raised the issue. Pascale, supra, 113 N.J. at 30.

Closing the Estate


Estates close when the executor has paid all debts, expenses, and taxes; received tax clearances from the IRS and the state; and all assets on hand have been distributed. Trusts terminate when a date or event described in the document occurs, such as the death of a beneficiary or the date the beneficiary attains a stated age. Some states require a petition to be filed in court before the assets are distributed and an estate or trust can be closed. When such a formal proceeding is not required, it is nevertheless good practice to require all beneficiaries to sign a document, prepared by an attorney, in which they approve of your actions as fiduciary and acknowledge receipt of assets due them. This protects the fiduciary from later claims by a beneficiary. A final income tax return must be filed and a reserve kept back for any tax that may be due.