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

Wednesday, November 26, 2014

Rule 4:80-1. Application for letters of administration ad prosequendum

Rule 4:80-1. Application for letters of administration ad prosequendum

  • (a) Contents. Unless a complaint for probate is filed with the Superior Court pursuant to R. 4:83, an application for the probate of a will, for letters testamentary, letters of administration, letters of administration of non-resident estates in which administration has not been sought in the decedent's state of residence, letters of administration with the will annexed, letters of administration ad prosequendum, letters of substitutionary administration and letters of substitutionary administration with the will annexed shall be filed with the Surrogate's Court, stating: (1) the applicant's residence; (2) the name and date of death of the decedent, his or her domicile at date of death and date of the last will, if any, of decedent; (3) the names and addresses of the spouse, heirs, next of kin and other persons, if any, entitled to letters, and their relationships to decedent, and, to the best of the applicant's knowledge and belief, identifying any of them whose names or addresses are unknown and stating further that there are no other heirs and next of kin; (4) the ages of any minor heirs or minor next of kin; and in an application for probate of a will, whether the testator had issue living when the will was made, and whether he or she left any child born or adopted thereafter or any issue of such after-born or adopted child, and the names of after-born or adopted children since the date of the will, or their issue, if any. The applicant shall verify under oath that the statements are true to the best of the applicant's knowledge and belief.
  • (b) Certificates, Affidavits Accompanying the Application. Except in an application for substitutionary letters, the application shall be accompanied by a certificate of death or other competent proof thereof, unless for good cause dispensed with; and in all applications where a bond is required of the person applying for letters, the application shall be accompanied by an affidavit of the value of the personal estate.
  • (c) Filing. The application for the probate of a will or for letters of administration shall be filed with the Surrogate's Court of the county in which the decedent was domiciled at death, or if at that time the decedent was not domiciled in this State, then with the Surrogate's Court of any county in which the decedent left any property or into which any property belonging to the decedent's estate may have come.
  • (d) Recording. The application shall be recorded by the Surrogate's Court.

Administration Ad Prosequendum in NJ

Administration Ad Prosequendum

If a suit for wrongful death is to be brought on behalf of an estate, an Administrator Ad Prosequendum must be named.  The action may be brought (1) in the Surrogate’s Court of the county where the intestate resided, or (2) if he/she lived outside the state, the Surrogate’s Court in which the accident resulting in the death occurred. (See Information Sheet for Administration)  

It is necessary at the outset to ascertain information in order to do an administration ad prosequendum.  (See Information Sheet for Administration in index).
1.  Check the death certificate to determine which Surrogate’s Court has jurisdiction.
2.  List all next-of-kin with names, addresses and if minors, the ages.  If there are any deceased
next-of-kin then their issue must be named.  These next-of-kin all have equal right to serve.  Determine who will serve and the others will need to sign Renunciations prepared by the Surrogate’s Court indicating that the applicant may serve.
3.  List name and address of the defendant in the suit.
NOTE:  If a Last Will and Testament exists, the named executor must bring the action after qualifying as the executor in the Surrogate’s Court.

The applicant will appear before the Surrogate to execute an Application for Administration Ad Prosequendum, which must indicate the name and address of the defendant in the suit.  He/she will sign an Authorization to Accept Service of Process (Power of Attorney) in favor of the Surrogate empowering the Surrogate to accept service of process in any cause in which the fiduciary, in his or her capacity as, is party.  If someone sues the estate and personal service cannot be affected, service of process may be made upon the Surrogate.  The Surrogate must mail a copy of the process to the fiduciary at the address on the Authorization.  The applicant signs the Qualification of Administrator Ad Prosequendum accepting this position and performing the duties of this position as law requires.  A Judgment is entered by the Surrogate Judge pursuant to which Letters of Administration Ad Prosequendum are issued.  The Letters give the authority to the Administrator Ad Prosequendum to bring the action and institute a proceeding or make a claim and the civil litigation may be pursued.
Any recovery which is obtained must be paid to the estate and must be administered properly.  If Letters of Administration had been issued prior to the settlement, the administrator must return to the Surrogate’s Court to make application for an amendment of the estate value and post additional Surety Bond if required.  If a general administration had not been done previously, an application for Letters of Administration and a Surety Bond must be filed.

Friday, November 14, 2014

NJSA 3B:9-12 Right to Disclaim, Etc;under Other Law Not Abridged.


3B:9-12 Right to disclaim, etc;under other law not abridged.

3B:9-12. Right to disclaim, etc.; under other law not abridged. This chapter does not abridge the right of an individual to waive, release, disclaim or renounce property or an interest therein under any other statute or law.

Amended 2004, c.132, s.75; 2005, c.160, s.13.
For more information, go to http://njwillsprobatelaw.com/3B-9-12.html?id=3710&a=

NJSA 3B:9-11Spendthrift Provision Not to Affect Right to Disclaim


3B:9-11 Spendthrift provision not to affect right to disclaim.

3B:9-11. The right to disclaim a property interest exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction or any restriction or limitation on the right to disclaim a property interest contained in the governing instrument.

Amended 2004, c.132, s.74.
For more information, go to http://njwillsprobatelaw.com/3B-9-11Spendthrift_provision_not_to_affect_right_to_disclaim.html?id=3709&a=

NJSA 3B:9-10 Binding Effect of Disclaimer or Waiver.


3B:9-10. Binding effect of disclaimer or waiver.


The disclaimer or written waiver of the right to disclaim a property interest shall be binding upon the disclaimant or the individual waiving and all individuals claiming by, through or under him.

Amended 2004, c.132, s.73; 2005, c.160, s.12.
For more information, go to http://njwillsprobatelaw.com/3B-9-10_Binding_effect_of_disclaimer_or_waiver.html?id=3708&a=

NJSA 3B:9-1 Definitions


3B:9-1. As used in this chapter:

a.A "present interest" is one to take effect in immediate possession, use or enjoyment without the intervention of a preceding estate or interest or without being dependent upon the happening of any event or thing;

b.A "future interest" is one to take effect in possession, use or enjoyment dependent upon the termination of an intervening estate or interest or the happening of any event or thing;

c.A "devisee" means any person designated in a will to receive a devise, but does not mean a trustee or trust designated in a will to receive a devise;

d.The "effective date" is the date on which a property right vests, or a contract right arises, even though the right is subject to divestment;

e."Joint property" is property that is owned by two or more persons with rights of survivorship and includes a tenancy by the entirety, a joint tenancy, a joint tenancy with rights of survivorship and a joint life estate with contingent remainder in fee. For purposes of this chapter, joint property is deemed to consist of a present interest and a future interest. The future interest is the right of survivorship;

f."Joint tenant" is the co-owner of joint property.

Amended 2004, c.132, s.63.
For more information, go to http://njwillsprobatelaw.com/3b_9-1.html?id=2231&a=

NJSA 3B:8-9 Presumption as to Property Owned or Previously Transferred by Spouse or Domestic Partner at Decedents Death


Property owned by the surviving spouse or domestic partner as of the decedents death, or previously transferred by the surviving spouse or domestic partner, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.

Amended 2005, c.331, s.14.
For more information, go to http://njwillsprobatelaw.com/3b_8-9.html?id=2221&a=