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, February 25, 2015

NJ Inheritance Tax for Class D Beneficiary

New Jersey has had a Transfer Inheritance Tax for many years. There is no Inheritance Tax if property in going solely to spouse, children, grandchildren. However, an Inheritance Tax Waiver must be obtained on all real estate. Your attorney will prepare the Inheritance Tax Returns or L-9 Resident Decedent Affidavit Requesting Real Property Tax Waiver Form. After the tax waiver is obtained, your attorney needs to file with the County Clerk.
Currently, the law imposes a graduated Transfer Inheritance Tax ranging from 11% to 16% on the transfer of real and personal property with a value of $500.00 or more to certain beneficiaries. There is a NJ Estate Tax on most estates over $675,000.
A Transfer Inheritance Tax Return must be filed and the tax paid on the transfer of real and personal property within eight months after the death of either:
A RESIDENT decedent for the transfer of real or tangible personal property located in New Jersey or intangible personal property wherever situated, or
A NONRESIDENT decedent for the transfer of real or tangible personal property located in New Jersey. No tax is imposed on nonresident decedents for real property located outside of New Jersey and intangible personal property wherever situated.
http://www.njlaws.com/inheritance_tax...

Sunday, February 22, 2015

Estate Planning & Probate Seminar North Brunswick Chapter #3885 of AARP March 2, 2015

Press Release: Estate Planning & Probate Seminar
 North Brunswick Chapter #3885 of AARP
March 2, 2015 at 1:15 Monday  
North Brunswick Senior Center, 15 Linwood Place, North Brunswick, NJ 08902    [Materials distributed at 12:15]

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ
                (Author- Answers to Questions About Probate)

     The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.
Main Topics:
1.  Estate Planning
2.  Medicaid
3.  Probate and Duties of Executor

      COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
       
Can’t attend?  We can email you materials Send email to VercammenLaw@Njlaws.com

Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is co-chair of the Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills.


KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
www.njlaws.com
www.CentralJerseyElderLaw.com




Friday, February 20, 2015

NJ Estate Tax


NJ Estate Tax for Estates over $675,000
     Recommendation for Tax Planning now if husband and wifes total assets including life insurance exceeds $675,000
    A New Jersey estate tax return must be filed if the decedents gross estate plus adjusted taxable gifts as determined in accordance with the provisions of the Internal Revenue Code in effect on December 31, 2001 exceeds $675,000. It must be filed within nine months of the decedents death (nine months plus 30 days if the Form 706 method is used). Additionally, a copy of any Federal estate tax return filed or required to be filed with the Federal government must be submitted within 30 days of the date it is filed with the Internal Revenue Service and a copy of any communication received from the Federal government must be submitted within 30 days of its receipt from the Internal Revenue Service.

The NJ Estate Tax is in addition to any NJ Inheritance Tax.

Who Must File

A New Jersey estate tax return must be filed if the decedents Gross Estate exceeds $675,000. There is substantial taxes that must be paid after the 2nd spouse dies on amounts over $675,000. You can hire an attorney to set up Trusts to try to reduce taxes due. We charge a minimum fee of $600 for each trust within a Will. A separate stand alone Trust has a minimum fee for $2,000.

Even if your net worth is well below the threshold where the federal estate tax becomes an issue, the New Jersey Estate Tax may still be a problem. The New Jersey Estate Tax affects any person or married couple with net worth over $675,000.There is no exemption for assets you leave to your children; those assets are fully taxed. There is also no exemption for the value of your home and life insurance, so it is easy to hit the $675,000 threshold very quickly. more details at http://www.njlaws.com/NJ-Estate-Tax.html

Saturday, February 14, 2015

Executor should have timely listed house for sale IN THE MATTER OF THE ESTATE OF CLARE M. MCCRINK, DECEASED.

Executor should have timely listed house for sale IN THE MATTER OF THE ESTATE OF CLARE M. MCCRINK, DECEASED.
DOCKET NO. A-2977-13T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Submitted January 6, 2015
January 12, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Fasciale.
On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. CP-0114-2013.
Keith E. Paterson, attorney for appellant Elaine McCrink.
Respondent Joseph McCrink has not filed a brief.1
PER CURIAM
        Elaine McCrink, the executrix and one of six surviving children entitled to share in the estate of Elaine's mother, Clare M. McCrink(the "decedent"), appeals from that part of a January 27, 2014 order directing her to sell the decedent's home (the "home") and pay the carrying costs pending the sale. The focus of this appeal is on the executrix's delay in listing the home for sale. We affirm.
Page 2
        The decedent died testate in November 2011. The executrix, who had been living in the home, failed to follow the terms of the will and list the property for sale. At the time of death, the home was appraised at $250,000. In May 2013, a year and a half after the death, two of the children (the "other children")2 filed a verified complaint and order to show cause seeking to compel the sale.
        In June 2013, the judge ordered the executrix to list the property for sale within ten days. The executrix listed the home for sale at $330,000. In September 2013, the judge ordered the executrix to reduce the listing price to $300,000 effective September 2013, and $270,000 effective October 2013. The judge then scheduled the matter for a hearing.
        In January 2014, the judge conducted the hearing and took testimony from the executrix and the other children. At this time, two years and two months after decedent had died, the executrix still remained in the home, which had not yet been sold. The judge found that the executrix "took too long to act," stating that
[i]t's not reasonable . . . to do really nothing, particularly when you're in this conflicted situation. . . . [I]t would be different if . . . [the other children were]
Page 3
living there. . . . [Y]ou . . . have an obvious benefit, because the longer you stay [in the home] the longer you don't pay any rent, the longer you don't have this cost of living. . . . [A]s a fiduciary [you] have to . . . do something about it [and] act . . . , when [your] siblings . . . are already pressing and saying what's going on here, let's close out this estate.
The judge then entered the order under review.
        On appeal, the executrix argues that (1) the January 27, 2014 order contradicts the language of the will and N.J.S.A. 3B:14-23e(2); (2) she delayed listing the home for sale relying on advice from her counsel and relators; and (3) she complied with the court orders dated June and September 2013 requiring her to list the home.
        After thoroughly reviewing the record, we conclude that the executrix's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the thoughtful reasons expressed by the judge. We add the following brief remarks.
        An appellate court must accord deference to a trial court's factual findings when such findings are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Here, there exists sufficient credible evidence in the record to support the
Page 4
judge's findings that the executrix unreasonably delayed her obligation under the will to sell the home.
        Contrary to the executrix's contention, the January 27, 2014 order does not contradict the language of the will. Paragraph four of the will provides:
I hereby give and bequeath the right of first refusal to purchase my [home] unto my children, or child, who shall desire the same, at a price to be determined by a fair market appraisal at the time of my death. If, however, there is a dispute regarding the [home], I direct that the same be sold and the net proceeds therefrom be part of my residuary estate to be distributed [equally].

I further direct that [the executrix] be permitted to reside in the [home] after the date of my death, and until the [home] is sold. I direct that my estate shall be responsible for the payment of real estate taxes, sewer and water expenses, utilities, maintenance, landscaping, and any other related expenses for the upkeep of the [home] until the [sale].
None of the children expressed an interest in purchasing the home. As a result, under the terms of the will and the order, the executrix was obligated to sell the home.
        Here, the will provides that the estate would pay the carrying costs for the property until it was sold. The will did not specify when the sale must occur, therefore, it should be interpreted to require a sale in a reasonable time. See In re Estate of Bayles, 108 N.J. Super. 446, 454 (App. Div. 1970)
Page 5
(holding that an executor "may be held liable for loss if he retains [assets of the estate] beyond a reasonable time for sale"). The judge found that the executrix had not taken steps to sell the property in a reasonable time and properly determined that the executrix should pay the carrying costs for the property, as of January 1, 2013.
        We reject the executrix's contention that the January 27, 2014 order contradicts the language of N.J.S.A. 3B:14-23e(2), which provides:
In the absence of contrary or limiting provisions in the . . . will . . . or in a subsequent court judgment or order, every fiduciary shall, in the exercise of good faith and reasonable discretion, have the power:

. . . .

e. With respect to . . . any real property belonging to the fiduciary's decedent at death[:]

. . . .

(2) To sell the property . . . on terms as in the opinion of the fiduciary shall be most advantageous to those interested therein[.]

[(Emphasis added).]
The language of this statute requires that the executrix exercise reasonable discretion. In issuing the January 2014 order, as well as the June and September 2013 orders, the judge
Page 6
complemented, rather than contradicted, this statutory language because the orders impliedly recognize the statutory obligation to act reasonably.
        We also reject as unpersuasive the executrix's assertions that (1) counsel advised her not to list the home for one year from the date of decedent's death; and (2) she was unable to list the home for sale until after she obtained an appropriate tax waiver.
        The judge did not find that counsel advised the executrix to do nothing for a year. Instead, the judge stated that "maybe [the delay] was with the advice of counsel, and maybe it was for other reasons." The judge provided the "other reasons" by acknowledging that the executrix was conflicted about her obligation to sell the home and her desire to remain living there.
        Although the executrix asserts that she could not have put the property on the market until she obtained a tax waiver, she offered no credible explanation for waiting until February 2013 to file an application for the waiver.
        Affirmed.

Friday, February 13, 2015

Accounting in Probate Estate

NJ Court Rule 4:87 Probate Accountings, Actions for the Settlement of Accounts
(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 attorneys 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 accountants 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 accountants 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.http://www.njlaws.com/probate_account...

Removing an Executor of a Probate Estate, Removing Administrator


Removing an Executor of a Probate Estate, Removing Administrator

by Kenneth A. Vercammen, Esq.

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

In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court.
A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.

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

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

Codicil to a Will

Codicil to a Will
A written revision to a Will is called a Codicil. An individual can have a Codicil to his or her Will as long as the codicil meets certain requirements. The codicil must be signed and witnessed just as the original Will was signed and witnessed. The codicil should refer to original Will by date and should be attached to the original Will. It is not recommended that an individualattempt to draft a codicil. A Codicil should only be draftedby an attorney to insure that it will have its intended effect. If thereare numerous changes to the Will, it is a good idea to have a new will drawn up and executed.
http://www.njlaws.com/codicil_to_a_wi...
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817