3B:3-31. Where judgment has been or shall be entered by any surrogate's court in this State or Superior Court of the State, admitting to probate the will of any individual whether or not a resident of the State at his death and 7 years have elapsed after the judgment, the judgment unless set aside, shall, as to all matters adjudicated thereby, be conclusive upon the title to real estate.
L.1981, c.405, s.3B:3-31, eff. May 1, 1982; amended 2004, c.132, s.26
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3B:3-30. Allowances by Superior Court to spouse or children pending contest over probate of will
If a contest is pending over the probate of any paper purporting to be a will, the Superior Court may, on application by the widow or widower of the decedent, by any of decedent's children, or by any children of any of decedent's deceased children, order the person having the custody of the decedent's estate to pay out of the income of the estate, pending the contest, an allowance for the support and maintenance of the widow, widower, child or children as the court may deem just; and any further allowance out of the income, or, if need be, out of the corpus, of the estate as may be necessary to meet the expenses incurred or to be incurred in conducting the contest.
To entitle a widow or widower to the benefit of this section the applicant must have been ceremonially married to the decedent and been living with him or her as his or her spouse at decedent's death.
L.1981, c. 405, s. 3B:3-30, eff. May 1, 1982.
To entitle a widow or widower to the benefit of this section the applicant must have been ceremonially married to the decedent and been living with him or her as his or her spouse at decedent's death.
L.1981, c. 405, s. 3B:3-30, eff. May 1, 1982.
3B:3-29. Order to compel production of purported will
The Superior Court shall have jurisdiction to compel discovery as to the existence or whereabouts of any paper purporting to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the paper to be lodged with the surrogate of the county for probate.
L.1981, c. 405, s. 3B:3-29, eff. May 1, 1982.
L.1981, c. 405, s. 3B:3-29, eff. May 1, 1982.
3B:3-28.1 Probate of will of nonresident where laws of decedent's domicile are discriminatory.
3B:3-28.1. Where the will of any individual who is not resident in this State at the time of his death has not been admitted to probate in the state in which he resided and no proceeding is there pending for the probate of the will, the Superior Court may admit the will to probate and grant letters thereon if the laws of that state discriminate against residents of New Jersey either as a beneficiary or as a fiduciary.
L.1981, c.405, s.3B:3-28.1, eff. May 1, 1982; amended 2004, c.132, s.25.
L.1981, c.405, s.3B:3-28.1, eff. May 1, 1982; amended 2004, c.132, s.25.
3B:3-28 Probate of will of nonresident decedent where property situated in New Jersey.
3B:3-28. Where the will of any individual not resident in this State at his death has not been admitted to probate in the state, jurisdiction or country in which he then resided and no proceeding is there pending for the probate of the will, and he died owning real estate situate in any county of this State or personal property, or evidence of the ownership thereof, situate therein at the time of probate, the Superior Court or the surrogate's court may admit the will to probate and grant letters thereon.
L.1981, c.405, s.3B:3-28, eff. May 1, 1982; amended 1997, c.20; 2004, c.132, s.24.
L.1981, c.405, s.3B:3-28, eff. May 1, 1982; amended 1997, c.20; 2004, c.132, s.24.
3B:3-27. Recording of will of nonresident probated in another state or country
A copy of any will or of the record of any will of a decedent not resident in this State at his death, admitted to probate in any state of the United States or other jurisdiction or country, and of the certificate or judgment for probate, and if title to real estate of the decedent depends on the conveyance by an executor, administrator with the will annexed, substituted administrator with the will annexed, trustee or substituted trustee, of the record of the grant of letters testamentary thereon, or of administration, or substitutionary administration, with the will annexed, or of a copy of the letters, attested and certified pursuant to the rules of the Supreme Court or, if it be a record of any state of the United States, exemplified and authenticated according to the act of Congress, heretofore or hereafter filed and recorded in the office of the surrogate of any county in this State, shall have the same force and effect in respect to all real estate whereof the testator died seized, as if the will had been admitted to probate and the letters aforesaid had been issued in this State, provided it appears either from the deposition in the record or the attestation clause, or by a deposition taken under a commission or otherwise, that the will is valid under the laws of this State.
All conveyances of the real estate heretofore or hereafter made by any executor, administrator with the will annexed, substituted administrator with the will annexed, trustee, substituted trustee, or the survivor or survivors of them, or by any devisee or persons claiming under the devisee shall be as valid as if the will had been admitted to probate and letters aforesaid had been issued in this State.
Certified copies of the will, deposition, judgment for probate and letters, or of the record thereof, shall be received in evidence in all the courts of this State.
L.1981, c. 405, s. 3B:3-27, eff. May 1, 1982.
All conveyances of the real estate heretofore or hereafter made by any executor, administrator with the will annexed, substituted administrator with the will annexed, trustee, substituted trustee, or the survivor or survivors of them, or by any devisee or persons claiming under the devisee shall be as valid as if the will had been admitted to probate and letters aforesaid had been issued in this State.
Certified copies of the will, deposition, judgment for probate and letters, or of the record thereof, shall be received in evidence in all the courts of this State.
L.1981, c. 405, s. 3B:3-27, eff. May 1, 1982.
B:3-26 Probate of will of nonresident probated in another state or country.
3B:3-26. When the will of any individual not resident in this State at his death shall have been admitted to probate in any state of the United States or other jurisdiction or country, the surrogate's court of any county may admit it to probate for any purpose and issue letters thereon, provided the will is valid under the laws of this State.
L.1981, c.405, s.3B:3-26, eff. May 1, 1982; amended 2004, c.132, s.23.
L.1981, c.405, s.3B:3-26, eff. May 1, 1982; amended 2004, c.132, s.23.
3B:3-25. Filing probate record with surrogate of any county
When a will devising real estate has been duly admitted to probate by the Superior Court, any person interested therein may file with the surrogate of any county a certified copy of the will, the complaint or application for probate, the proofs, the judgment or order for probate and the letters testamentary issued thereon. The surrogate shall thereupon record them which record, or a certified copy thereof, shall be received in evidence in any cause involving the title to real estate in that county as if the will had been originally admitted to probate before the surrogate.
L.1981, c. 405, s. 3B:3-25, eff. May 1, 1982.
L.1981, c. 405, s. 3B:3-25, eff. May 1, 1982.
3B:3-24 Where a will of a resident is to be probated; effect of failure to probate.
3B:3-24. The will of any individual resident within any county of this State at his death may be admitted to probate in the surrogate's court of the county or in the Superior Court. If the will of any individual resident within the State at his death is probated outside the State, it shall be without effect unless or until probate is granted within the State.
L.1981, c.405, s.3B:3-24, eff. may 1, 1982; amended 2004, c.132, s.22.
L.1981, c.405, s.3B:3-24, eff. may 1, 1982; amended 2004, c.132, s.22.
3B:3-23. Proof of execution required in contested probate action
If an issue as to the execution of a will arises in a contested probate action, the testimony of at least one of the attesting witnesses, if within the State, competent and able to testify, is required. Other evidence is admissible as to the due execution of a will.
L.1981, c. 405, s. 3B:3-23, eff. May 1, 1982.
L.1981, c. 405, s. 3B:3-23, eff. May 1, 1982.
3B:3-22. Time for probate of will; preliminary filing
No will shall be admitted to probate until after 10 days from the death of the testator; but the complaint and other papers in any action for the probate of a will may be filed, and the depositions of the witnesses thereto and the qualification of the executor or administrator with the will annexed may be taken at any time subsequent to the death of the testator and before the will is admitted to probate.
L.1981, c. 405, s. 3B:3-22, eff. May 1, 1982.
L.1981, c. 405, s. 3B:3-22, eff. May 1, 1982.
3B:3-21. Probate of will where witnesses are in service in time of war
When the only living subscribing witness or witnesses, to the will of a resident of this State, is not or are not available in this State to prove the will, because of absence from the State while in the armed forces of the United States or of any ally of the United States, or while in the merchant marine, in time of war or national emergency, the will shall be admitted to probate upon proof of the signatures of the witnesses to the will, provided the will would then have been admitted to probate if the witnesses were dead.
L.1981, c. 405, s. 3B:3-21, eff. May 1, 1982.
L.1981, c. 405, s. 3B:3-21, eff. May 1, 1982.
3B:3-20 Probate of a will of testator who died in military service or within 2 years of discharge.
N.J.S.3B:3-20. When a resident of this State dies while a member of the armed forces of the United State or within 2 years from the date of his discharge from the armed forces and no witness to his will is available in this State to prove the will, either because of death, incapacity, nonresidence, absence, or for any other reason, the will shall be admitted to probate upon proof of the signature of the testator by any two individuals, provided the will was validly executed as provided in N.J.S.3B:3-9, and the will would have been admitted to probate if the witnesses were dead.
L.1981, c.405, s.3B:3-20, eff. May 1, 1982; amended 2004, c.132, s.21.
L.1981, c.405, s.3B:3-20, eff. May 1, 1982; amended 2004, c.132, s.21.
3B:3-19 Proof required to probate will.
3B:3-19. A will executed as provided in N.J.S.3B:3-2 may be admitted to probate by the surrogate upon the proof of one of the attesting witnesses or by some other individual having knowledge of the facts relating to the proper execution of the will by the testator and its attestation by one of the witnesses.
A will executed and acknowledged in the manner provided in N.J.S.3B:3-4, or N.J.S.3B:3-5 may be admitted to probate by the surrogate without further affidavit, deposition or proof.
A writing intended as a will may be admitted to probate only in the manner provided by the Rules Governing the Courts of the State of New Jersey.
L.1981, c.405, s.3B:3-19, eff. May 1, 1982; amended 2004, c.132, s.20.
A will executed and acknowledged in the manner provided in N.J.S.3B:3-4, or N.J.S.3B:3-5 may be admitted to probate by the surrogate without further affidavit, deposition or proof.
A writing intended as a will may be admitted to probate only in the manner provided by the Rules Governing the Courts of the State of New Jersey.
L.1981, c.405, s.3B:3-19, eff. May 1, 1982; amended 2004, c.132, s.20.
3B:3-18. Necessity to probate will to transfer property or nominate executor
3B:3-18. Necessity to probate will to transfer property or nominate executor
To be effective to prove the transfer of any property or to nominate an executor, a will must be admitted to probate.
L.1981, c. 405, s. 3B:3-18, eff. May 1, 1982.
To be effective to prove the transfer of any property or to nominate an executor, a will must be admitted to probate.
L.1981, c. 405, s. 3B:3-18, eff. May 1, 1982.
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3B:3-17. Probate of will and grant of letters
3B:3-17. The surrogates of the several counties or the Superior Court may take depositions to wills, admit the same to probate, and grant thereon letters testamentary or letters of administration with the will annexed.
L.1981, c.405, s.3B:3-17, eff. may 1, 1982; amended 2004, c.132, s.19.
L.1981, c.405, s.3B:3-17, eff. may 1, 1982; amended 2004, c.132, s.19.
3B:3-16 Methods of altering will
3B:3-16 Methods of altering will
No devise in, or clause of a will may be altered, except by another will or codicil or other writing declaring the alteration executed in the manner in which wills are required by law to be executed.
No devise in, or clause of a will may be altered, except by another will or codicil or other writing declaring the alteration executed in the manner in which wills are required by law to be executed.
3B:3-15 Revival of revoked will.
3B:3-15 Revival of revoked will.
3B:3-15. a. Except as otherwise provided in N.J.S.3B:3-14 or as provided in subsections b., c. and d. of this section, a revoked will or codicil shall not be revived except by reexecution or by a duly executed codicil expressing an intention to revive it.
b.If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act described in N.J.S.3B:3-13, the previous will remains revoked unless it is revived. The previous will is revived if there is clear and convincing evidence from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
c.If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act described in N.J.S.3B:3-13, a revoked part of the previous will is revived unless there is clear and convincing evidence from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
d.If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
L.1981, c.405, s.3B:3-15, eff. May 1, 1982.
3B:3-15. a. Except as otherwise provided in N.J.S.3B:3-14 or as provided in subsections b., c. and d. of this section, a revoked will or codicil shall not be revived except by reexecution or by a duly executed codicil expressing an intention to revive it.
b.If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act described in N.J.S.3B:3-13, the previous will remains revoked unless it is revived. The previous will is revived if there is clear and convincing evidence from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
c.If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act described in N.J.S.3B:3-13, a revoked part of the previous will is revived unless there is clear and convincing evidence from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
d.If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
L.1981, c.405, s.3B:3-15, eff. May 1, 1982.
3B:3-14 Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
3B:3-14 Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
3B:3-14. Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
a.Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment:
(1)revokes any revocable:
(a)dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;
(b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual's former spouse, or on a relative of the divorced individual's former spouse; and
(c)nomination in a governing instrument of a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity; and
(2)severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common.
In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If provisions are revoked solely by this section, they are revived by the divorced individual's remarriage to the former spouse or by the revocation, suspension or nullification of the divorce or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance.
A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
b.For purposes of this section: (1) "divorce or annulment" means any divorce or annulment, or other dissolution or declaration of invalidity of a marriage including a judgment of divorce from bed and board; (2) "governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment; (3) "divorced individual "includes an individual whose marriage has been annulled; and (4) "relative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.
c.This section does not affect the rights of any person who purchases property from a former spouse for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse was not entitled to under this section, but the former spouse is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section.
d.A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section.
L.1981, c.405, s.3B:3-14, eff. May 1, 1982; amended 2004, c.132, s.17; 2005, c.160, s.4.
3B:3-14. Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
a.Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment:
(1)revokes any revocable:
(a)dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;
(b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual's former spouse, or on a relative of the divorced individual's former spouse; and
(c)nomination in a governing instrument of a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity; and
(2)severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common.
In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If provisions are revoked solely by this section, they are revived by the divorced individual's remarriage to the former spouse or by the revocation, suspension or nullification of the divorce or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance.
A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
b.For purposes of this section: (1) "divorce or annulment" means any divorce or annulment, or other dissolution or declaration of invalidity of a marriage including a judgment of divorce from bed and board; (2) "governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment; (3) "divorced individual "includes an individual whose marriage has been annulled; and (4) "relative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.
c.This section does not affect the rights of any person who purchases property from a former spouse for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse was not entitled to under this section, but the former spouse is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section.
d.A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section.
L.1981, c.405, s.3B:3-14, eff. May 1, 1982; amended 2004, c.132, s.17; 2005, c.160, s.4.
3B:3-13 Revocation by writing or by act.
3B:3-13 Revocation by writing or by act.
3B:3-13. A will or any part thereof is revoked:
a.By the execution of a subsequent will that revokes the previous will or part expressly or by inconsistency; or
b.By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this subsection, "revocatory act on the will" includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a "revocatory act on the will," whether or not the burn, tear, or cancellation touched any of the words on the will.
(1)If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(2) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.
(3)The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.
L.1981, c.405, s.3B:3-13, eff. May 1, 1982; amended 2004, c.132, s.16.
3B:3-13. A will or any part thereof is revoked:
a.By the execution of a subsequent will that revokes the previous will or part expressly or by inconsistency; or
b.By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this subsection, "revocatory act on the will" includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a "revocatory act on the will," whether or not the burn, tear, or cancellation touched any of the words on the will.
(1)If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(2) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.
(3)The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.
L.1981, c.405, s.3B:3-13, eff. May 1, 1982; amended 2004, c.132, s.16.
3B:3-12. Acts and events of independent significance
3B:3-12. Acts and events of independent significance
A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testators death. The execution or revocation of a will of another person is such an event.
A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testators death. The execution or revocation of a will of another person is such an event.
3B:3-11. Identifying devise of tangible personal property by separate writing
3B:3-11. Identifying devise of tangible personal property by separate writing
A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testators death: it maybe be prepared before or after the execution of the will; it maybe be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.
A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testators death: it maybe be prepared before or after the execution of the will; it maybe be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.
3B:3-10. Incorporation by reference
3B:3-10. Incorporation by reference
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
3B:3-9. Laws determining valid execution of will
3B:3-9. Laws determining valid execution of will
A written will is validly executed if executed in compliance with N.J.S. 3B:3-2 or N.J.S 3B;3-3 or its execution was in compliance with the law of the place where it was executed, or at the time of death the testator was domiciled, had a place of abode or was a national.
A written will is validly executed if executed in compliance with N.J.S. 3B:3-2 or N.J.S 3B;3-3 or its execution was in compliance with the law of the place where it was executed, or at the time of death the testator was domiciled, had a place of abode or was a national.
3B:3-8. Will not invalidated if signed by interested witness
3B:3-8. Will not invalidated if signed by interested witness
A will or any provision thereof is not invalid because the will is signed by an interested witness.
A will or any provision thereof is not invalid because the will is signed by an interested witness.
3B:3-7. Who may witness a will
3B:3-7. Who may witness a will
Any person generally competent to be a witness may act as a witness to a will and testify concerning the execution thereof.
Any person generally competent to be a witness may act as a witness to a will and testify concerning the execution thereof.
3B:3-7. Who may witness a will
3B:3-7. Who may witness a will
Any person generally competent to be a witness may act as a witness to a will and testify concerning the execution thereof.
Any person generally competent to be a witness may act as a witness to a will and testify concerning the execution thereof.
3B:3-6. Validating acknowledgment
3B:3-6. Validating acknowledgment
An acknowledgment to make a will self-proved taken on or after September 1,1978, but before October 11,1979, pursuant to R.S. 46:14-6, R.S. 46:14-7 or R.S. 46:14-8 to make a will self-proved under N.J.S. 3B:3-4 or N.J.S. 3B:3-5 is a valid acknowledgment, notwithstanding that the certificate of acknowledgment does not have the officer's official seal affixed thereto.
An acknowledgment to make a will self-proved taken on or after September 1,1978, but before October 11,1979, pursuant to R.S. 46:14-6, R.S. 46:14-7 or R.S. 46:14-8 to make a will self-proved under N.J.S. 3B:3-4 or N.J.S. 3B:3-5 is a valid acknowledgment, notwithstanding that the certificate of acknowledgment does not have the officer's official seal affixed thereto.
3B:3-5. Making will self-proved subsequent to time of execution
3B:3-5. Making will self-proved subsequent to time of execution
A will executed in compliance with N.J.S 3B:3-2 maybe at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized pursuant to R.S. 46:14-6, R.S. 46:14-7 or R.S. 46:14-8 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, attached or annexed to the will in substantially the following form:
The State of ...............
County of ..................
We, ........., ................, and ............, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, be duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as this last will and that he had singed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witnesses and that to the best of his knowledge the testator was at that time 18 years of age or older, of sound mind and under no constraint or undue influence.
.................
Testator
.................
Witness
.................
Witness
Subscribed, sworn to and acknowledged before me by ......., the testator, and subscribed and sworn to before me by ............. and ................., witnesses, this ............... day of ..................
(Signed) ........................
........................
(Official capacity of officer)
A will executed in compliance with N.J.S 3B:3-2 maybe at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized pursuant to R.S. 46:14-6, R.S. 46:14-7 or R.S. 46:14-8 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, attached or annexed to the will in substantially the following form:
The State of ...............
County of ..................
We, ........., ................, and ............, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, be duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as this last will and that he had singed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witnesses and that to the best of his knowledge the testator was at that time 18 years of age or older, of sound mind and under no constraint or undue influence.
.................
Testator
.................
Witness
.................
Witness
Subscribed, sworn to and acknowledged before me by ......., the testator, and subscribed and sworn to before me by ............. and ................., witnesses, this ............... day of ..................
(Signed) ........................
........................
(Official capacity of officer)
3B:3-4. Making will self-proved at time of execution
3B:3-4 Making will self-proved at time of execution.
3B:3-4. Any will executed on or after September 1, 1978 may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, in substantially the following form:
I, .........., the testator, sign my name to this instrument this .... day of ......., 20..., and being duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
.........................................
Testator
We,............., the witnesses, sign our names to this instrument, and, being duly sworn, do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator's last will and that the testator signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
........................................
Witness
........................................
Witness
The State of................
County of...................
Subscribed, sworn to and acknowledged before me by ................, the testator and subscribed and sworn to before me by ............ and ............., witnesses, this ............. day of.................
(Signed).............................
................................
(Official capacity of officer)
L.1981, c.405, s.3B:3-4, eff. May 1, 1982; amended 1991, c.255; 2004, c.132, s.11.
3B:3-4. Any will executed on or after September 1, 1978 may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, in substantially the following form:
I, .........., the testator, sign my name to this instrument this .... day of ......., 20..., and being duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
.........................................
Testator
We,............., the witnesses, sign our names to this instrument, and, being duly sworn, do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator's last will and that the testator signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
........................................
Witness
........................................
Witness
The State of................
County of...................
Subscribed, sworn to and acknowledged before me by ................, the testator and subscribed and sworn to before me by ............ and ............., witnesses, this ............. day of.................
(Signed).............................
................................
(Official capacity of officer)
L.1981, c.405, s.3B:3-4, eff. May 1, 1982; amended 1991, c.255; 2004, c.132, s.11.
3B:3-3. Writings intended as wills.
3B:3-3 Writings intended as wills.
Although a document or writing added upon a document was not executed in compliance with N.J.S.3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
L.1981, c.405, s.3B:3-3, eff. May 1, 1982; amended 2004, c.132, s.10; 2005, c.160, s.3.
Although a document or writing added upon a document was not executed in compliance with N.J.S.3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
L.1981, c.405, s.3B:3-3, eff. May 1, 1982; amended 2004, c.132, s.10; 2005, c.160, s.3.
3B:3-2. Formal execution of will
3B:3-2 Execution; witnessed wills; writings intended as wills.
3B:3-2. Execution; witnessed wills; writings intended as wills.
a.Except as provided in subsection b. and in N.J.S.3B:3-3, a will shall be:
(1)in writing;
(2)signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and
(3)signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
b.A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
c.Intent that the document constitutes the testator's will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator's handwriting.
L.1981, c.405, s.3B:3-2, eff. May 1, 1982; amended 2004, c.132, s.9; 2005, c.160, s.2.
3B:3-2. Execution; witnessed wills; writings intended as wills.
a.Except as provided in subsection b. and in N.J.S.3B:3-3, a will shall be:
(1)in writing;
(2)signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and
(3)signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
b.A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
c.Intent that the document constitutes the testator's will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator's handwriting.
L.1981, c.405, s.3B:3-2, eff. May 1, 1982; amended 2004, c.132, s.9; 2005, c.160, s.2.
3B:3-1. Person competent to make a will and appoint a testamentary guardian
3B:3-1. Person competent to make a will and appoint a testamentary guardian
Any person 18 or more years of age who is of sound mind may make a will and may appoint a testamentary guardian.
Any person 18 or more years of age who is of sound mind may make a will and may appoint a testamentary guardian.
3B:2-8. Penalty for failure to obey subpoena
3B:2-8. Penalty for failure to obey subpoena
Any person subpoenaed as a witness by a surrogate, who does not appear pursuant thereto, or appearing refuses to be sworn or give evidence, without reasonable cause assigned, shall for every such default or refusal, be subject to a fine of not more than $50.00, as surrogate's court issuing the subpoena shall by judgment determine proper to impose. The fine, when collected, shall be paid to the county.
In default of the payment of a fine so imposed, the surrogate's court by its judgment may commit the witness to the county jail of the county until it is paid or he is sooner discharged.
The judgment of the surrogate's court imposing a fine or committing a witness to jail shall be reviewable by the Superior Court in the same manner as other judgments of the court are reviewed.
Any person subpoenaed as a witness by a surrogate, who does not appear pursuant thereto, or appearing refuses to be sworn or give evidence, without reasonable cause assigned, shall for every such default or refusal, be subject to a fine of not more than $50.00, as surrogate's court issuing the subpoena shall by judgment determine proper to impose. The fine, when collected, shall be paid to the county.
In default of the payment of a fine so imposed, the surrogate's court by its judgment may commit the witness to the county jail of the county until it is paid or he is sooner discharged.
The judgment of the surrogate's court imposing a fine or committing a witness to jail shall be reviewable by the Superior Court in the same manner as other judgments of the court are reviewed.
3B:2-7. Issuance of subpoenas by surrogate
3B:2-7. Issuance of subpoenas by surrogate
A surrogate may issue process of subpoenas to any person within the State to appear and give evidence in any matter pending before the surrogates court.
A surrogate may issue process of subpoenas to any person within the State to appear and give evidence in any matter pending before the surrogates court.
3B:2-6. Oaths; affidavit; deposition or proof
3B:2-6. Oaths; affidavit; deposition or proof
Any oath, affidavit, deposition or proof required to be made or taken in any proceeding before a surrogate, his court, or in the Superior Court, or necessary or proper to be used before the surrogate or the court, may be made and taken before the surrogate or before any person authorized by law to administer oaths. Qualification of executors and administrators and acceptances of trusteeships and guardianships may be taken as provided by the rules of the Supreme Court.
Any oath, affidavit, deposition or proof required to be made or taken in any proceeding before a surrogate, his court, or in the Superior Court, or necessary or proper to be used before the surrogate or the court, may be made and taken before the surrogate or before any person authorized by law to administer oaths. Qualification of executors and administrators and acceptances of trusteeships and guardianships may be taken as provided by the rules of the Supreme Court.
3B:2-5. Disputes or doubts in proceedings before the surrogate
3B:2-5. Disputes or doubts in proceedings before the surrogate
In the event of any dispute or doubt arising before the surrogate or in the surrogate's court, neither he nor the court shall take any further action therein, except in accordance with the order of the Superior Court.
In the event of any dispute or doubt arising before the surrogate or in the surrogate's court, neither he nor the court shall take any further action therein, except in accordance with the order of the Superior Court.
3B:2-4. Proceedings in Superior Court on order to show cause
3B:2-4. Proceedings in Superior Court on order to show cause
The Superior Court, in any proceeding by or against fiduciaries or other persons, may proceed in a summary manner.
The Superior Court, in any proceeding by or against fiduciaries or other persons, may proceed in a summary manner.
3B:2-3. Jurisdiction of Superior Court over surrogate's proceedings
3B:2-3. Jurisdiction of Superior Court over surrogate's proceedings
The Superior Court shall have jurisdiction to hear and determine disputes or doubts arising before the surrogate or in the surrogate's court of a county, to review in any order, determination or judgment of the surrogate or the surrogate's court of county and upon the review to hear and determine the matter, and to grant relief from or to direct the entry of, as of a former time, any order, determination or judgment of the surrogate or the surrogate's court of a county.
The Superior Court shall have jurisdiction to hear and determine disputes or doubts arising before the surrogate or in the surrogate's court of a county, to review in any order, determination or judgment of the surrogate or the surrogate's court of county and upon the review to hear and determine the matter, and to grant relief from or to direct the entry of, as of a former time, any order, determination or judgment of the surrogate or the surrogate's court of a county.
3B:2-2. General authority of Superior Court as to probate matters
3B:2-2. General authority of Superior Court as to probate matters
The Superior Court shall have full authority to hear and determine all controversies respecting wills, trusts, and estates, and full authority over the accounts of fiduciaries, and also authority over all other matters and things as are submitted to its determination under this title.
The Superior Court shall have full authority to hear and determine all controversies respecting wills, trusts, and estates, and full authority over the accounts of fiduciaries, and also authority over all other matters and things as are submitted to its determination under this title.
3B:2-1. Jurisdiction of Superior Court not affected
3B:2-1. Jurisdiction of Superior Court not affected
The provisions of this title are not intended and shall not be so contrued as in any way to affect, impair, or limit the original general jurisdiction of the Superior Court given to it by the constitution.
The provisions of this title are not intended and shall not be so contrued as in any way to affect, impair, or limit the original general jurisdiction of the Superior Court given to it by the constitution.
3B: 1-9 Effect of fraud and evasion
3B: 1-9 Effect of fraud and evasion
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser or lender) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within 2 years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than 5 years after the time of commision of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affeccts the succession of his estate.
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser or lender) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within 2 years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than 5 years after the time of commision of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affeccts the succession of his estate.
3B: 1-8 Application of title to wills
3B: 1-8 Application of title to wills
The provisions of this title shall apply to any wills of decedents dying on or after September 1, 1978.
The provisions of this title shall apply to any wills of decedents dying on or after September 1, 1978.
3B: 1-7 Exclusion of property passing to a testamentary trustee other than by devise from rights of personal representative or creditors of decent
3B: 1-7 Exclusion of property passing to a testamentary trustee other than by devise from rights of personal representative or creditors of decent
Property passing to a testamentary trustee other than by devise shall not be subject to rights of, powers of or to administration by a personal representative or to rights of creditors to any extent beyond that to which it would otherwise be if the testamentary trust was an inter vivos trust.
Property passing to a testamentary trustee other than by devise shall not be subject to rights of, powers of or to administration by a personal representative or to rights of creditors to any extent beyond that to which it would otherwise be if the testamentary trust was an inter vivos trust.
3B: 1-6 Law governing rights, duties and powers of fiduciaries
The provisions of this title shall govern the rights, duties, and powers of successors and fiduciaries relating to the administration of all estates except that the validity and propriety of all acts done by a fiduciary and all rights established in successors prior to September 1, 1978, shall remain determined under the law as then in effect.
3B: 1-5 Effect upon vested rights and remedies
The repeal of any sections, acts or parts of acts by the enactment of this title shall not affect any right now vested in any person pursuant to any sections, acts or parts of acts so repealed, nor any remedy where an action or proceeding thereunder has been institued and is pending on the effective date of this title.
3B:1-4 Contractual arrangements relating to death
A contract to make a will or devise, or not to revoke a weill or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
3B:1-3. Devolution of property upon death
Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his ill or to those indicated as substitues for them in cases involving lape, renunciation, or other circumstances affecting the devolution of testate, or in the absence of testmentary dispostion, to his heirs, or to those indicated as subbstitues for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject ot rights of creditors and to aministration.
L. 1891, c. 405 3B:1-3, eff. May 1, 1982
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L. 1891, c. 405 3B:1-3, eff. May 1, 1982
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3B:1-2 Definitions: I to Z
"Issue" of a person includes all of his lineal descendants, natural or adopted, of all generations, with the relationship of parent and child at each generation being determined by by the definition of child and parent.
"Local administration" means administration by a personal representative appointed in this State.
"Local fiduciary" means any fiduciary who has received letters in this State and excludes foreign fiduciaries who acquire the power of local fidcuary persuant to this title.
"Mental incompetent" means a person who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs.
The term "mental incompetent" is also used to dsignate a person who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that he lacks sufficient capacity to govern himself and manage his affairs.
The term "mental incompetency" and "mental imcompetent" refer to the state or condition of a "mental incompetent" as hereinbefore defined.
"Minor" means a person who is under 18 years of age.
"Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
"Parent" means any person entitled to take or would be entitled to take if the child, natural or adopted, died without a will, by intestate succession from the child whose relationship is in question and excludes any person who is a stepparent foster parent of grandparent.
"Personal representative" includes executor, administrator, successor personal repreentative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.
"Resident creditor" means a person domiciled in, or doing business in this State, who is, or could be, a caimant against an estate.
"Security" includes any note, stock, treasury stock, bond, mortgage, financing statement, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title of lease, collateral, trust certificate, transferable share, voting trust certificate or, in general, any interest or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
"Successor personal representative" means a personal representative, other than a special administrator, who is appinted to succeed a previously appointed personal representative.
"Successors" means those persons, other than creditors, who are entitiled to real and personal property of a decedent under his will or the laws governing intestate succession.
"Testamentary trustee" means a trustee designated by will or appointed to exercise a trust created by will.
"Trust" includes any express trust, private, or charitable , with additions thereto, wherever and however created. It also includes a trust created by judgement under which the trust is to be administered in the matter of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts, guardinships, personal representatives, trust accounts created under the "Multiple-party Deposit Account Act," P.L. 1979, c 491 (C. 17:161-1 et seq), gifts to minors under the "New Jersey Uniform Gifts to Minors Act," P.L.1963, c.177 (C.46:38-13 et seq.), business trusts providing for certificates to be issued to beneficiaries, common trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividents, interest, salaries, wages, profits, pensions, or employee benefits of any kidn, an dany arrangement under which a person is a nominee or escrowee for another.
"Ward" means a person for whom a guardian is appointed or a person under the protection of the court.
"Will" means the last will and testament of a testator or testatrix and includes any codicil.
L. 1981, c 405 3B: 1-2, eff. May 1, 1982.
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"Local administration" means administration by a personal representative appointed in this State.
"Local fiduciary" means any fiduciary who has received letters in this State and excludes foreign fiduciaries who acquire the power of local fidcuary persuant to this title.
"Mental incompetent" means a person who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs.
The term "mental incompetent" is also used to dsignate a person who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that he lacks sufficient capacity to govern himself and manage his affairs.
The term "mental incompetency" and "mental imcompetent" refer to the state or condition of a "mental incompetent" as hereinbefore defined.
"Minor" means a person who is under 18 years of age.
"Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
"Parent" means any person entitled to take or would be entitled to take if the child, natural or adopted, died without a will, by intestate succession from the child whose relationship is in question and excludes any person who is a stepparent foster parent of grandparent.
"Personal representative" includes executor, administrator, successor personal repreentative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.
"Resident creditor" means a person domiciled in, or doing business in this State, who is, or could be, a caimant against an estate.
"Security" includes any note, stock, treasury stock, bond, mortgage, financing statement, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title of lease, collateral, trust certificate, transferable share, voting trust certificate or, in general, any interest or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
"Successor personal representative" means a personal representative, other than a special administrator, who is appinted to succeed a previously appointed personal representative.
"Successors" means those persons, other than creditors, who are entitiled to real and personal property of a decedent under his will or the laws governing intestate succession.
"Testamentary trustee" means a trustee designated by will or appointed to exercise a trust created by will.
"Trust" includes any express trust, private, or charitable , with additions thereto, wherever and however created. It also includes a trust created by judgement under which the trust is to be administered in the matter of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts, guardinships, personal representatives, trust accounts created under the "Multiple-party Deposit Account Act," P.L. 1979, c 491 (C. 17:161-1 et seq), gifts to minors under the "New Jersey Uniform Gifts to Minors Act," P.L.1963, c.177 (C.46:38-13 et seq.), business trusts providing for certificates to be issued to beneficiaries, common trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividents, interest, salaries, wages, profits, pensions, or employee benefits of any kidn, an dany arrangement under which a person is a nominee or escrowee for another.
"Ward" means a person for whom a guardian is appointed or a person under the protection of the court.
"Will" means the last will and testament of a testator or testatrix and includes any codicil.
L. 1981, c 405 3B: 1-2, eff. May 1, 1982.
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3B:1-1. Definitions: A to H
As used in this title, unless otherwise defined:
"Administrator" includes general administrators of an intestate and unless restricted by the subject or context, administrators with the will annexed, substituted administrators, substituted administrators with the will annexed, temporary administrators and adminstrators pendente lite.
"Beneficiary," as it relates to trust beneficiaries includes a person who has any present or future interest, vested or contingent and also included the owner of an interest by assignment of other transfer and as it relates to a charitable trust, includes any person entitled to enforce the trust.
"Child" means any individual, including a natural or adopted child, entitled to take by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild or any more remote descendant.
"Claims" include liabilities whether arising in contract, or in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent, including funeral expenses and expenses of administration, but does not include estate of inheritance taxes, demands, or disputes regarding title to specific assets alleged to be included in the estate.
"Confiduciary" means each of two or more fiduciaries jointly serving in a fiduciary capacity.
"Devise," when used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.
"Devisee" means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee is the devisee and the beneficiaries are not devisees.
"Distributee" means any person who has received property of a decedent from his personal representative other than as a creditor or purchaser. A trustee is a distributee only to the extent of a sitributed asset or increment thereto remaining in his hands. A beneficiary of a trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative.
"Domiciliary foreign fiduciary" means any fiduciary who has received letters, or has been appointed, or is authorized to act as a fiduciary, in jurisdiction in which the decedent was domiciled at the time of his death, in which the ward is domiciled or in which is located the principal place of the administration of a trust.
"Estate" means all of the property of a decedent, minor or mental incompetent, trust or other person whose affairs are subject to this title as the property is originally constituted and as it exists from time to time during adminstration.
" Fiduciary" includes executors, general adminstrators of an intestate, adminstrators with the will annexed, substituted administrators with the will annexed, guardians, substituted guardians, trustees, substituted trustees and, unless restricted by the subject or context, temporary administrators, administrators pendente lite, administrators ad prosequedum, administrators ad litem and other limited fiduciaries.
"Guardian" means a person who has qualified as a guardian of a person or estate of a minor or mental incompetent persuant to testamentary or court appointment, but excludes on who is merely a gaurdian ad litem.
"Heirs" means those persons, including the surviving spouse, who are entitlesd under statutes of intestate succession to property of a decedent.
L. 1981, c 3b:1-1, eff. May 1, 1982.
For more information go to www.centraljerseyelderlaw.com
Posted by Ken Vercammen NJ Law Blog at 9:31 AM
"Administrator" includes general administrators of an intestate and unless restricted by the subject or context, administrators with the will annexed, substituted administrators, substituted administrators with the will annexed, temporary administrators and adminstrators pendente lite.
"Beneficiary," as it relates to trust beneficiaries includes a person who has any present or future interest, vested or contingent and also included the owner of an interest by assignment of other transfer and as it relates to a charitable trust, includes any person entitled to enforce the trust.
"Child" means any individual, including a natural or adopted child, entitled to take by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild or any more remote descendant.
"Claims" include liabilities whether arising in contract, or in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent, including funeral expenses and expenses of administration, but does not include estate of inheritance taxes, demands, or disputes regarding title to specific assets alleged to be included in the estate.
"Confiduciary" means each of two or more fiduciaries jointly serving in a fiduciary capacity.
"Devise," when used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.
"Devisee" means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee is the devisee and the beneficiaries are not devisees.
"Distributee" means any person who has received property of a decedent from his personal representative other than as a creditor or purchaser. A trustee is a distributee only to the extent of a sitributed asset or increment thereto remaining in his hands. A beneficiary of a trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative.
"Domiciliary foreign fiduciary" means any fiduciary who has received letters, or has been appointed, or is authorized to act as a fiduciary, in jurisdiction in which the decedent was domiciled at the time of his death, in which the ward is domiciled or in which is located the principal place of the administration of a trust.
"Estate" means all of the property of a decedent, minor or mental incompetent, trust or other person whose affairs are subject to this title as the property is originally constituted and as it exists from time to time during adminstration.
" Fiduciary" includes executors, general adminstrators of an intestate, adminstrators with the will annexed, substituted administrators with the will annexed, guardians, substituted guardians, trustees, substituted trustees and, unless restricted by the subject or context, temporary administrators, administrators pendente lite, administrators ad prosequedum, administrators ad litem and other limited fiduciaries.
"Guardian" means a person who has qualified as a guardian of a person or estate of a minor or mental incompetent persuant to testamentary or court appointment, but excludes on who is merely a gaurdian ad litem.
"Heirs" means those persons, including the surviving spouse, who are entitlesd under statutes of intestate succession to property of a decedent.
L. 1981, c 3b:1-1, eff. May 1, 1982.
For more information go to www.centraljerseyelderlaw.com
Posted by Ken Vercammen NJ Law Blog at 9:31 AM
Sunday, October 5, 2008
WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WHEN: Tuesday October 21, 2008 7 - 9 P.M.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # FBB ...............................................................Fee: $29
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, “Probate and Administration of an Estate”, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.centraljerseyelderlaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
Tues. 7:00–8:30 pm .......................................1 session: 10/21
Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Fall_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to: Director, East Brunswick Adult and Community Education, EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey’s most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.
East Brunswick Wills rev 9/30/08Macbook
WHEN: Tuesday October 21, 2008 7 - 9 P.M.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # FBB ...............................................................Fee: $29
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, “Probate and Administration of an Estate”, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.centraljerseyelderlaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
Tues. 7:00–8:30 pm .......................................1 session: 10/21
Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Fall_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to: Director, East Brunswick Adult and Community Education, EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey’s most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.
East Brunswick Wills rev 9/30/08Macbook
Sunday, August 17, 2008
In the Matter of the Estate of Madeleine Stockdale, Deceased (A-121-06)
In the Matter of the Estate of Madeleine Stockdale, Deceased (A-121-06)
Argued October 9, 2007 -- Decided July 22, 2008
HOENS, J., writing for a unanimous Court.
In this appeal, the Court considers the circumstances in which it is appropriate to award punitive damages against a party in a Probate Part proceeding who has engaged in undue influence in the creation of a will or testamentary trust, or in securing an inter vivos transfer of property in lieu thereof.
Madeleine Stockdale, the testatrix, owned a large home on Monroe Avenue in Spring Lake. Following her husband's death and despite her considerable wealth, she lived frugally and her house eventually fell into disrepair. She talked of selling her home to someone who would restore the home to its former grandeur and agree not to subdivide it. Stockdale was distant from others and distrustful, believing that they were only interested in her for her money. She had no children and no family except for two nephews, George and Peter Lawrence, with whom she had little contact. Stockdale was reclusive, associating with only a few people whom she considered to be her "acquaintances." The Pattersons and the DiFeos were among Stockdale's acquaintances and, in general, they looked after her. Stockdale was impressed with the good work of the volunteers of the Spring Lake First Aid Squad (SLFAS). She intended to leave her entire estate to charity out of respect for the selfless acts of kindness and because it would keep her assets away from the control of the government and limit estate taxes.
In September 1997, Stockdale listed her home for sale for the price of $1.4 million. A neighbor, Ronald Sollitto, was interested in the Stockdale home. He introduced himself directly to Stockdale and shortly thereafter, he and his wife began to help Stockdale around her home and to bring her food, continuing to express how much they liked her home.
In March 1998, Stockdale executed the first of the two wills ("1998 Will") that were eventually offered for probate and that are at the center of this appeal. At that time, Stockdale was in her late 80's or early 90's, was living alone in the Monroe Avenue house, and was in declining health. The 1998 Will was prepared by William Soons, the attorney who handled Stockdale's legal affairs. The 1998 Will named Soons and Peter Kuzmick co-executors of her estate. Stockdale directed that her home be sold on her death and that the proceeds be included in her residuary estate. The 1998 Will also included a substantial number of specific bequests and named SLFAS as the residuary beneficiary.
On the same day that the 1998 Will was executed, Stockdale entered into a new listing agreement for the sale of her home at a price of $1.65 million. In March 1999, Sollitto made an offer on the home that Stockdale rejected; nonetheless, the two continued to discuss Sollitto's purchase of the home. Sollitto claims he promised that he would not subdivide the property; would restore the home to its original grandeur; and would allow Stockdale to remain in the home until she was ready to leave. Although none of these promises was reduced to writing, Stockdale was induced to sign a proposed contract to sell the property to Sollitto for $1.3 million. That contract was prepared by Thomas Foley, an attorney retained by Sollitto. The contract made no mention of the various promises Sollitto had made to Stockdale and included a variety of terms that were unfavorable to her. Stockdale retained Soons to review the contract and to represent her in the sale of her home. Soons contacted Foley in respect of his concerns about the unfavorable terms in the contact. Rather than continuing the negotiations with Soons, Foley prepared an addendum to the contract and gave it to Sollitto, who brought it directly to Stockdale for her signature. Soons was led to believe that the deal was off, even though the parties continued to move forward with the agreement.
In December 1999, Stockdale fell and broke her hip, causing a further deterioration in her already declining health. She was eventually transferred to a rehabilitation facility where Sollitto visited and continued to discuss the pending house sale. Sollitto sent Michael A. Casale, a very close personal friend, to advise Stockdale on the sale. On December 21, 1999, Casale visited Stockdale at the rehab facility but did not reveal his very close personal relationship with Sollitto. According to Casale, Stockdale told him that she wanted to sell her home to Sollitto because he would not demolish it. Casale stated that she asked about a power of attorney and declared her desire to change her 1998 Will. Casale met with Stockdale again on December 27, 1999 where, according to Casale, Stockdale agreed to accept $50,000 from Sollitto at closing, with the remainder of the purchase price to be paid through a note and purchase money mortgage at 5% interest, which was two to three points below the current market rate. Casale testified that Stockdale had crossed out the clause in the 1998 Will leaving her residual estate to the SLFAS because she no longer wanted to leave them her money. On or about December 29, 1999, Casale met with Stockdale for a third time at which time Casale claims Stockdale decided to make Sollitto her residual beneficiary and replace her existing co-executors with Casale as the sole executor of the estate. In addition, she agreed to put a provision in her new will to forgive any mortgage debt that might be owed. Casale and Sollitto spoke regularly after Casale's meetings with Stockdale.
Because of Stockdale's imminent throat surgery, Casale executed the new will and closing documents on January 3, 2000 without the assistance or presence of Sollitto's attorney. The employees of the rehab facility who witnessed the signing of the new will ("2000 Will") were unable to testify whether Stockdale had the requisite testamentary capacity, although the facility's director did testify that Stockdale likely did not have the requisite capacity based on her ingestion of pain medication and her increased signs of confusion. On that day, Stockdale also signed a deed ("2000 Deed") transferring to Sollitto title to her house.
Once discharged from the rehab facility, Sollitto eventually moved Stockdale to an apartment that he rented in her name, secluded from her acquaintances. He and his family had moved into the Stockdale's home. In early February, Sollitto wrote a check to pay for utility charges on the Monroe Avenue home using his Power of Attorney to access Stockdale's funds. The record also shows that Sollitto removed Stockdale's antique furniture and pictures from her home. At the time of her death in April 2000, the Monroe Avenue home was worth significantly more than the purchase price. Moreover, Stockdale's estate taxes under the 2000 Will were considerably more than what would have been owed under the 1998 Will.
On March 1, 2000, Casale offered the 2000 Will for probate; on April 28, 2000, Soons, unaware of the existence of the 2000 Will, offered the 1998 Will for probate. Shortly thereafter, SLFAS, the residuary beneficiary under the 1998 Will, lodged a caveat against the 2000 Will. Casale filed a complaint in the Probate Part, seeking to dismiss the caveat and admit the 2000 Will to probate. SLFAS answered the complaint and filed a third-party complaint against Sollitto and Casale, claiming that the 2000 Will was procured by undue influence and fraud, and that the inter vivos transfer of the title to Stockdale's home by deed was similarly flawed. SLFAS sought both compensatory and punitive damages, together with attorneys' fees. Stockdale's previously disinherited nephews were allowed to intervene in the matter to protect any potential interests in the estate.
Following extensive discovery and a lengthy trial, the probate judge found that Sollitto and Casale were not credible and that Stockdale's 2000 Will was unenforceable as a product of undue influence. The probate judge also found that the 2 000 Deed and the 1999 real estate contract ("1999 Contract of Sale") transferring Stockdale's property to Sollitto were invalid as a product of undue influence and "sharp dealing." The judge set aside the 2000 Deed, voided the 1999 Contract for Sale, sustained the caveat, rejected the 2000 Will, and directed that the 1998 Will be admitted to probate. Relying on this Court's decision in In re Niles, the judge awarded SLFAS attorneys' fees as a form of punitive damages, finding that undue influence is a form of intentional tort that provides the basis for awarding punitive damages. Sollitto and Casale were required to pay attorneys' fees to SLFAS in the amount of $1,174,264.87.
The Appellate Division affirmed all but the award of attorneys' fees, remanding for consideration of punitive damages, noting that the trial court was mistaken in its view that an award of attorneys' fees under Niles is or may be a substitute for punitive damages.
The Supreme Court granted certification.
HELD: Actions arising from disputed wills and related documents designed to dispose of estate assets and which rest on allegations of undue influence are most often resolved through the equitable remedies available in the Probate Part. Although a finding that a party in an estate has engaged in undue influence may also, consistent with common-law notions of making an injured party whole and deterring particularly egregious behavior, support an award of punitive damages, the circumstances in which a punitive damage award is permitted is limited. Because the Appellate Division based its analysis on the assumption that punitive damage remedy is broadly available, its judgment is affirmed with modifications.
1. In a probate matter, the burden of proving undue influence ordinarily is on the will contestant. However, when there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption. If there is a conflict of interest on the part of an attorney coupled with confidential relationships between testator and the beneficiary as well as the attorney, the presumption must be rebutted by clear and convincing evidence rather than a preponderance of the evidence. An attorney-client relationship is inherently a confidential relationship and because suspicious circumstances need only be slight, the existence of that relationship often results in both the shifting of the burden and the imposition of a clear and convincing standard of proof. (Pp. 30-34)
2. In probate matters, a tort-based claim can only arise if someone has acted so as to deplete or reduce the estate of its assets. In probate proceeding, there is generally neither compensatory damage-type award nor, by extension, the underpinnings needed for imposition of a punitive award. (Pp. 33-37)
3. In Niles, the Court emphasized New Jersey's strong public policy against shifting counsel fees from one party to another. A narrow exception exists for circumstances in which the executor or trustee commits the tort of undue influence that would enable the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate. There is also the possibility of a punitive damage award arising from the "pernicious tort of undue influence." However, the availability of that remedy is limited to those situations in which ordinary remedies for breach of fiduciary duty will not lie or will be inadequate. The remedy is limited to situations were one who is essentially a stranger to the testator gains access to her through undue influence and then carries out a scheme to place himself into a position to seize control of that testator's assets through inter vivos transfer or by bequest. Any punitive damage award arising in the Probate Part must be in compliance with the Punitive Damages Act. This remedy will be infrequent, limited to circumstances in which the actor is not entitled to take from the estate by inheritance or through commissions, and thus an accounting and a surcharge remedy will be inadequate to restore the estate to its proper balance. (Pp. 37-45)
4. Sollitto and Casale were strangers to Stockdale, thus the surcharge remedy would be insufficient. There are distinctions between this matter and Niles. Because the claim in this case was brought by a putative beneficiary rather than by the substitute executor, no counsel fee could be awarded. The record includes ample facts and circumstances that would support a compensatory award and, potentially, a punitive one as well. Only the apparent confusion about the parameters of the available remedies prevented the Probate Part and the Appellate Division from engaging in the appropriate analysis of the record. It may well be that a punitive award is appropriate. It is left to the sound discretion of the Probate Part to consider the record in light of the Court's further guidance. (Pp. 45-51)
Judgment of the Appellate Division is AFFIRMED as MODIFIED and the matter is remanded to the Chancery Division, Probate Part, for further proceedings consistent with this opinion.
Argued October 9, 2007 -- Decided July 22, 2008
HOENS, J., writing for a unanimous Court.
In this appeal, the Court considers the circumstances in which it is appropriate to award punitive damages against a party in a Probate Part proceeding who has engaged in undue influence in the creation of a will or testamentary trust, or in securing an inter vivos transfer of property in lieu thereof.
Madeleine Stockdale, the testatrix, owned a large home on Monroe Avenue in Spring Lake. Following her husband's death and despite her considerable wealth, she lived frugally and her house eventually fell into disrepair. She talked of selling her home to someone who would restore the home to its former grandeur and agree not to subdivide it. Stockdale was distant from others and distrustful, believing that they were only interested in her for her money. She had no children and no family except for two nephews, George and Peter Lawrence, with whom she had little contact. Stockdale was reclusive, associating with only a few people whom she considered to be her "acquaintances." The Pattersons and the DiFeos were among Stockdale's acquaintances and, in general, they looked after her. Stockdale was impressed with the good work of the volunteers of the Spring Lake First Aid Squad (SLFAS). She intended to leave her entire estate to charity out of respect for the selfless acts of kindness and because it would keep her assets away from the control of the government and limit estate taxes.
In September 1997, Stockdale listed her home for sale for the price of $1.4 million. A neighbor, Ronald Sollitto, was interested in the Stockdale home. He introduced himself directly to Stockdale and shortly thereafter, he and his wife began to help Stockdale around her home and to bring her food, continuing to express how much they liked her home.
In March 1998, Stockdale executed the first of the two wills ("1998 Will") that were eventually offered for probate and that are at the center of this appeal. At that time, Stockdale was in her late 80's or early 90's, was living alone in the Monroe Avenue house, and was in declining health. The 1998 Will was prepared by William Soons, the attorney who handled Stockdale's legal affairs. The 1998 Will named Soons and Peter Kuzmick co-executors of her estate. Stockdale directed that her home be sold on her death and that the proceeds be included in her residuary estate. The 1998 Will also included a substantial number of specific bequests and named SLFAS as the residuary beneficiary.
On the same day that the 1998 Will was executed, Stockdale entered into a new listing agreement for the sale of her home at a price of $1.65 million. In March 1999, Sollitto made an offer on the home that Stockdale rejected; nonetheless, the two continued to discuss Sollitto's purchase of the home. Sollitto claims he promised that he would not subdivide the property; would restore the home to its original grandeur; and would allow Stockdale to remain in the home until she was ready to leave. Although none of these promises was reduced to writing, Stockdale was induced to sign a proposed contract to sell the property to Sollitto for $1.3 million. That contract was prepared by Thomas Foley, an attorney retained by Sollitto. The contract made no mention of the various promises Sollitto had made to Stockdale and included a variety of terms that were unfavorable to her. Stockdale retained Soons to review the contract and to represent her in the sale of her home. Soons contacted Foley in respect of his concerns about the unfavorable terms in the contact. Rather than continuing the negotiations with Soons, Foley prepared an addendum to the contract and gave it to Sollitto, who brought it directly to Stockdale for her signature. Soons was led to believe that the deal was off, even though the parties continued to move forward with the agreement.
In December 1999, Stockdale fell and broke her hip, causing a further deterioration in her already declining health. She was eventually transferred to a rehabilitation facility where Sollitto visited and continued to discuss the pending house sale. Sollitto sent Michael A. Casale, a very close personal friend, to advise Stockdale on the sale. On December 21, 1999, Casale visited Stockdale at the rehab facility but did not reveal his very close personal relationship with Sollitto. According to Casale, Stockdale told him that she wanted to sell her home to Sollitto because he would not demolish it. Casale stated that she asked about a power of attorney and declared her desire to change her 1998 Will. Casale met with Stockdale again on December 27, 1999 where, according to Casale, Stockdale agreed to accept $50,000 from Sollitto at closing, with the remainder of the purchase price to be paid through a note and purchase money mortgage at 5% interest, which was two to three points below the current market rate. Casale testified that Stockdale had crossed out the clause in the 1998 Will leaving her residual estate to the SLFAS because she no longer wanted to leave them her money. On or about December 29, 1999, Casale met with Stockdale for a third time at which time Casale claims Stockdale decided to make Sollitto her residual beneficiary and replace her existing co-executors with Casale as the sole executor of the estate. In addition, she agreed to put a provision in her new will to forgive any mortgage debt that might be owed. Casale and Sollitto spoke regularly after Casale's meetings with Stockdale.
Because of Stockdale's imminent throat surgery, Casale executed the new will and closing documents on January 3, 2000 without the assistance or presence of Sollitto's attorney. The employees of the rehab facility who witnessed the signing of the new will ("2000 Will") were unable to testify whether Stockdale had the requisite testamentary capacity, although the facility's director did testify that Stockdale likely did not have the requisite capacity based on her ingestion of pain medication and her increased signs of confusion. On that day, Stockdale also signed a deed ("2000 Deed") transferring to Sollitto title to her house.
Once discharged from the rehab facility, Sollitto eventually moved Stockdale to an apartment that he rented in her name, secluded from her acquaintances. He and his family had moved into the Stockdale's home. In early February, Sollitto wrote a check to pay for utility charges on the Monroe Avenue home using his Power of Attorney to access Stockdale's funds. The record also shows that Sollitto removed Stockdale's antique furniture and pictures from her home. At the time of her death in April 2000, the Monroe Avenue home was worth significantly more than the purchase price. Moreover, Stockdale's estate taxes under the 2000 Will were considerably more than what would have been owed under the 1998 Will.
On March 1, 2000, Casale offered the 2000 Will for probate; on April 28, 2000, Soons, unaware of the existence of the 2000 Will, offered the 1998 Will for probate. Shortly thereafter, SLFAS, the residuary beneficiary under the 1998 Will, lodged a caveat against the 2000 Will. Casale filed a complaint in the Probate Part, seeking to dismiss the caveat and admit the 2000 Will to probate. SLFAS answered the complaint and filed a third-party complaint against Sollitto and Casale, claiming that the 2000 Will was procured by undue influence and fraud, and that the inter vivos transfer of the title to Stockdale's home by deed was similarly flawed. SLFAS sought both compensatory and punitive damages, together with attorneys' fees. Stockdale's previously disinherited nephews were allowed to intervene in the matter to protect any potential interests in the estate.
Following extensive discovery and a lengthy trial, the probate judge found that Sollitto and Casale were not credible and that Stockdale's 2000 Will was unenforceable as a product of undue influence. The probate judge also found that the 2 000 Deed and the 1999 real estate contract ("1999 Contract of Sale") transferring Stockdale's property to Sollitto were invalid as a product of undue influence and "sharp dealing." The judge set aside the 2000 Deed, voided the 1999 Contract for Sale, sustained the caveat, rejected the 2000 Will, and directed that the 1998 Will be admitted to probate. Relying on this Court's decision in In re Niles, the judge awarded SLFAS attorneys' fees as a form of punitive damages, finding that undue influence is a form of intentional tort that provides the basis for awarding punitive damages. Sollitto and Casale were required to pay attorneys' fees to SLFAS in the amount of $1,174,264.87.
The Appellate Division affirmed all but the award of attorneys' fees, remanding for consideration of punitive damages, noting that the trial court was mistaken in its view that an award of attorneys' fees under Niles is or may be a substitute for punitive damages.
The Supreme Court granted certification.
HELD: Actions arising from disputed wills and related documents designed to dispose of estate assets and which rest on allegations of undue influence are most often resolved through the equitable remedies available in the Probate Part. Although a finding that a party in an estate has engaged in undue influence may also, consistent with common-law notions of making an injured party whole and deterring particularly egregious behavior, support an award of punitive damages, the circumstances in which a punitive damage award is permitted is limited. Because the Appellate Division based its analysis on the assumption that punitive damage remedy is broadly available, its judgment is affirmed with modifications.
1. In a probate matter, the burden of proving undue influence ordinarily is on the will contestant. However, when there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption. If there is a conflict of interest on the part of an attorney coupled with confidential relationships between testator and the beneficiary as well as the attorney, the presumption must be rebutted by clear and convincing evidence rather than a preponderance of the evidence. An attorney-client relationship is inherently a confidential relationship and because suspicious circumstances need only be slight, the existence of that relationship often results in both the shifting of the burden and the imposition of a clear and convincing standard of proof. (Pp. 30-34)
2. In probate matters, a tort-based claim can only arise if someone has acted so as to deplete or reduce the estate of its assets. In probate proceeding, there is generally neither compensatory damage-type award nor, by extension, the underpinnings needed for imposition of a punitive award. (Pp. 33-37)
3. In Niles, the Court emphasized New Jersey's strong public policy against shifting counsel fees from one party to another. A narrow exception exists for circumstances in which the executor or trustee commits the tort of undue influence that would enable the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate. There is also the possibility of a punitive damage award arising from the "pernicious tort of undue influence." However, the availability of that remedy is limited to those situations in which ordinary remedies for breach of fiduciary duty will not lie or will be inadequate. The remedy is limited to situations were one who is essentially a stranger to the testator gains access to her through undue influence and then carries out a scheme to place himself into a position to seize control of that testator's assets through inter vivos transfer or by bequest. Any punitive damage award arising in the Probate Part must be in compliance with the Punitive Damages Act. This remedy will be infrequent, limited to circumstances in which the actor is not entitled to take from the estate by inheritance or through commissions, and thus an accounting and a surcharge remedy will be inadequate to restore the estate to its proper balance. (Pp. 37-45)
4. Sollitto and Casale were strangers to Stockdale, thus the surcharge remedy would be insufficient. There are distinctions between this matter and Niles. Because the claim in this case was brought by a putative beneficiary rather than by the substitute executor, no counsel fee could be awarded. The record includes ample facts and circumstances that would support a compensatory award and, potentially, a punitive one as well. Only the apparent confusion about the parameters of the available remedies prevented the Probate Part and the Appellate Division from engaging in the appropriate analysis of the record. It may well be that a punitive award is appropriate. It is left to the sound discretion of the Probate Part to consider the record in light of the Court's further guidance. (Pp. 45-51)
Judgment of the Appellate Division is AFFIRMED as MODIFIED and the matter is remanded to the Chancery Division, Probate Part, for further proceedings consistent with this opinion.
Tuesday, August 5, 2008
Elder Law 2008- Expanding and Marketing an Elder Law Practice
Elder Law 2008- Expanding and Marketing an Elder Law Practice
Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York
Speakers:
Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Charles Sabatino, director of the ABA's Commission on Law & Aging
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Parag Patel, Esq. Iselin, NJ
Joan Burda, Ohio
Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.
[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]
Contact American Bar Association's Experient at 800-421-0450 or at aba@experient-inc.com for registration & tickwets to events
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York
Speakers:
Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Charles Sabatino, director of the ABA's Commission on Law & Aging
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Parag Patel, Esq. Iselin, NJ
Joan Burda, Ohio
Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.
[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]
Contact American Bar Association's Experient at 800-421-0450 or at aba@experient-inc.com for registration & tickwets to events
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Elder Law 2008- Expanding and Marketing an Elder Law Practice
Elder Law 2008- Expanding and Marketing an Elder Law Practice
Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York
Speakers:
Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Charles Sabatino, director of the ABA's Commission on Law & Aging
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Parag Patel, Esq. Iselin, NJ
Joan Burda, Ohio
Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.
[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]
Contact American Bar Association's Experient at 800-421-0450 or at aba@experient-inc.com for registration & tickwets to events
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York
Speakers:
Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Charles Sabatino, director of the ABA's Commission on Law & Aging
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Parag Patel, Esq. Iselin, NJ
Joan Burda, Ohio
Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.
[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]
Contact American Bar Association's Experient at 800-421-0450 or at aba@experient-inc.com for registration & tickwets to events
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Sunday, March 30, 2008
Robert Oberhand v. Director, Division of Taxation
Robert Oberhand v. Director, Division of Taxation
(A-106-06) 2-27-08
The July 2002 Amendment to N.J.S.A. 54:38-1 applies to the
estates, but under the circumstances presented, the doctrine of
manifest injustice bars retroactive application of the Amendment
to plaintiffs.
(A-106-06) 2-27-08
The July 2002 Amendment to N.J.S.A. 54:38-1 applies to the
estates, but under the circumstances presented, the doctrine of
manifest injustice bars retroactive application of the Amendment
to plaintiffs.
Saturday, March 1, 2008
WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WHEN: Tuesday April 8, 2008 7 - 8:30 P.M.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.centraljerseyelderlaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # SPS ....... Fee: $29
Tues. 7:00–9:00 pm ........ 1 session: 4/8
$ 29.00 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Spring_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to:
Director, East Brunswick Adult and Community Education,
EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.
WHEN: Tuesday April 8, 2008 7 - 8:30 P.M.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.centraljerseyelderlaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # SPS ....... Fee: $29
Tues. 7:00–9:00 pm ........ 1 session: 4/8
$ 29.00 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Spring_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to:
Director, East Brunswick Adult and Community Education,
EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.
Elder Care Law 2008 Program
Press Release- Elder Care Law 2008 Program
WHERE: Jack Cooper's Restaurant, Tano Mall, 1199 Amboy Ave., Edison, NJ
WHEN: February 20, 2008
8:30am Hot Buffet Breakfast
9:00am Meeting Starts
Cost: $15.00 Member of Insurance & Financial Advisors $25.00 Non-Member
Sponsor: Middlesex- Somerset Insurance and Financial Advisors
Information? Tom Schreiner, LUTCF, RFC, CSA, FIC
Email: thomas.schreiner@kofc.org or call 908-722-6336
President of Insurance and Financial Advisors of Middlesex, Somerset, and
Union Counties
SPEAKER: Kenneth Vercammen, Esq. of Edison (Co-Author- NJ Wills & Probate)
Main Topics:
1. Wills and the changes to the NJ Probate Law
2. Power of Attorney with new HIPPA provisions
3. 2008 maximum $$$ per month Medicaid recipient
2008 maximum $$$ per month Medicaid spouse
2008 Lump Sum Medicaid recipient allowed to keep
2008 Lump Sum spouse allowed to keep
Five year look back starts when? 4. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.CentralJerseyElderLaw.com
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law and litigation matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.njlaws.com
WHERE: Jack Cooper's Restaurant, Tano Mall, 1199 Amboy Ave., Edison, NJ
WHEN: February 20, 2008
8:30am Hot Buffet Breakfast
9:00am Meeting Starts
Cost: $15.00 Member of Insurance & Financial Advisors $25.00 Non-Member
Sponsor: Middlesex- Somerset Insurance and Financial Advisors
Information? Tom Schreiner, LUTCF, RFC, CSA, FIC
Email: thomas.schreiner@kofc.org or call 908-722-6336
President of Insurance and Financial Advisors of Middlesex, Somerset, and
Union Counties
SPEAKER: Kenneth Vercammen, Esq. of Edison (Co-Author- NJ Wills & Probate)
Main Topics:
1. Wills and the changes to the NJ Probate Law
2. Power of Attorney with new HIPPA provisions
3. 2008 maximum $$$ per month Medicaid recipient
2008 maximum $$$ per month Medicaid spouse
2008 Lump Sum Medicaid recipient allowed to keep
2008 Lump Sum spouse allowed to keep
Five year look back starts when? 4. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.CentralJerseyElderLaw.com
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law and litigation matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.njlaws.com
Thursday, January 24, 2008
Suit for tortious interference with a Bequest must be filed in Probate Court
Suit for tortious interference with a Bequest must be filed in Probate Court
Felix M. Garruto, et al. v. Lorraine Cannici 12-21-07
A-2447-06T1
The Court held that an action for tortious interference with a bequest, premised upon undue influence by means of fraud, is barred when plaintiffs, with knowledge of probate proceedings, have failed to file a timely challenge to the will in probate court.
Felix M. Garruto, et al. v. Lorraine Cannici 12-21-07
A-2447-06T1
The Court held that an action for tortious interference with a bequest, premised upon undue influence by means of fraud, is barred when plaintiffs, with knowledge of probate proceedings, have failed to file a timely challenge to the will in probate court.
Quarg- new case Long time girlfriend's share should be set by contract law, not constructive trust
In the Matter of the Estate of Robert O. Quarg,
deceased 1-23-08
A-2459-06T3
Long time girlfriend's share should be set by contract law, not constructive trust
Decedent's wife, from whom he had been estranged for over
forty years, appealed the Chancery Division's order imposing a
constructive trust on her surviving spouse's share of decedent's
intestate estate in favor of decedent's companion, with whom he
had lived since shortly after the estrangement. The court held that,
decedent's conduct and actions, together with the lengthy time
decedent and his companion lived together, and their mutual
consideration as husband and wife, was sufficient to establish a
question of fact whether there was an implied promise by
decedent to ensure that his companion received adequate
provisions during the remainder of her life. The court determined that
the Chancery Division mistakenly relied upon an equitable
principle of a constructive trust and The court remanded the matter for
a determination whether such an implied contractual promise
could be established.
deceased 1-23-08
A-2459-06T3
Long time girlfriend's share should be set by contract law, not constructive trust
Decedent's wife, from whom he had been estranged for over
forty years, appealed the Chancery Division's order imposing a
constructive trust on her surviving spouse's share of decedent's
intestate estate in favor of decedent's companion, with whom he
had lived since shortly after the estrangement. The court held that,
decedent's conduct and actions, together with the lengthy time
decedent and his companion lived together, and their mutual
consideration as husband and wife, was sufficient to establish a
question of fact whether there was an implied promise by
decedent to ensure that his companion received adequate
provisions during the remainder of her life. The court determined that
the Chancery Division mistakenly relied upon an equitable
principle of a constructive trust and The court remanded the matter for
a determination whether such an implied contractual promise
could be established.
ESTATE PLANNING FOR GAY AND LESBIAN COUPLES WHO HAVE NOT ENTERED INTO A CIVIL UNION OR REGISTERED AS DOMESTIC PARTNERS
"SAVE MONEY AND PROVIDE FOR YOUR LOVED ONES "
By Kenneth A. Vercammen
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority of Americans with assets do not take the time to create a Will.
National statistics indicate that 80% of Americans die without leaving a Will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich or married with children need to have Wills). Whatever the excuse, it is clear that people would benefit from having a Will.
In the absence of a Will or other legal arrangement to distribute property at death, your partner cannot receive any assets and cannot administer your estate. The result can be lengthy delays and other problems. Individuals in gay or lesbian relationships need properly drafted Wills and estate planning documents more than straight persons. The probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years or decades.
IF YOU HAVE NO WILL:
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
* State law determines who gets assets, not you
* Additional expenses will be incurred and extra work will be required to qualify an administrator
* Possible additional State inheritance taxes and Federal estate taxes
* If you have no s Civil Union , spouse, or close relatives the State may take your property
* The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes.
* It may also cause fights and lawsuits between your partner and your family
When your loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with disputes over property and Financial concerns. Careful estate planning helps take care of that.
THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL FOR UNMARRIED PERSON:
1ST: DEBTS AND TAXES
2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC
3RD: DISPOSITION TO PARTNER
4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED
5TH: CREATION OF TRUSTS FOR PARTNER
6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN
7TH: OTHER BENEFICIARIES UNDER 21
8TH: EXECUTORS
9TH: TRUSTEES
10TH: GUARDIANS OF CHILDREN
11TH: NO SURETY OR BOND REQUIRED
12TH: POWERS
13TH: SELF PROVING WILL
14TH: PRINCIPAL AND INCOME
15TH: NO ASSIGNMENT OF BEQUESTS
16TH: GENDER
17TH: CONSTRUCTION OF WILL
18TH: NO CONTEST CLAUSE
A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.
WHY PERIODIC REVIEW IS ESSENTIAL
Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:
* Domestic Partnership, Marriage, death, birth, divorce or separation affecting people named in your Will
*Significant changes in the value of your total assets or in any particular assets which you own
* Changes in your relationships
* A change in your State domicile
* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving
*Annual changes in tax law
MAY I CHANGE MY WILL?
Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate.
Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared by an attorney or a Codicil prepared by an attorney signed to legally change portions of the Will.
SAVE MONEY
Probate in New Jersey is not difficult. Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. When you meet with your attorney to draft a Will, you may also learn ideas to reduce death taxes and other expenses. Don’t pinch pennies now to the detriment of your Partner and beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate. Because the matters covered are complicated and the Federal and New Jersey laws frequently change, this article can only outline some of the many legal issues you should consider.
The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.
A properly drawn Simple Will without Trust costs approximately $300.00 to $600.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have.
Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.
WHAT IS A WILL?
“A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed. You should remember that the term “property” under the law includes "real estate as well as other possessions and rights to receive money or items of value.” Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.
ADMINISTRATION OF AN ESTATE
If you are named the executor or executrix, you must visit the County Surrogate to probate the Will. You will need the following items:
1. The Death Certificate
2. The Original Will
3. Names and Addresses of decedent's next of kin and will beneficiaries
4. Minimum of $100.00 for Surrogate fees
A state inheritance tax return must be filed and the tax paid on the transfer of real or personal property within eight months after death.
OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY
-Power of Attorney- to allow your partner or another person to administer your assets during your lifetime, either upon disability or now
-Living Wills/ Advance Directive- to state your wishes concerning medical care in the event of your serious illness and to allow your partner or another person to make medical decisions.
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays.
Reasons to have a Power of Attorney
What are these powers 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. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.
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 live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the "new" NJ Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now.
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 a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical 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. In addition, the domestic partner can be challenged in a guardianship by the incapacitated person's family members.
Advance preparation of the Power of Attorney could avoid the inconvenience and expense of 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 usually too late.
The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:
1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.
2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances.
3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.
4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.
5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.
6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions.
7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.
You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.
Gay and Lesbians- Living Will/ Advance Directives
Planning Ahead For Your Health Care:
Compiled by Kenneth Vercammen
In the absence of a Living Will or other legal arrangement if you become disabled, your partner generally has no say regarding medical care or life support. Your partner cannot access your assets. Your partner cannot receive information on your medical status or medical care. Advance directives are very personal documents and you should feel free to develop one which best suits your own needs.
All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. If you have a Living Will, you can designate your partner as a decision maker.
WHY LIVING WILLS
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.
States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS
In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.
HEALTH CARE REPRESENTATIVE
The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.
WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE
An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity, and shall be made a part of the patient's medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.
As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.
But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we can't make them for ourselves? If we can't make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?
Living Will:
By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.
After all, if you are seriously ill or injured and can't make decisions for yourself someone will have to decide about your medical care. Doesn't it make sense to
• Have your partner or another person you trust make decisions for you,
• Provide instructions about the treatment you do and do not want, or
• Both appoint a person to make decisions and provide them with instructions.
About Kenneth Vercammen
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on Probate, personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
By Kenneth A. Vercammen
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority of Americans with assets do not take the time to create a Will.
National statistics indicate that 80% of Americans die without leaving a Will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich or married with children need to have Wills). Whatever the excuse, it is clear that people would benefit from having a Will.
In the absence of a Will or other legal arrangement to distribute property at death, your partner cannot receive any assets and cannot administer your estate. The result can be lengthy delays and other problems. Individuals in gay or lesbian relationships need properly drafted Wills and estate planning documents more than straight persons. The probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years or decades.
IF YOU HAVE NO WILL:
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
* State law determines who gets assets, not you
* Additional expenses will be incurred and extra work will be required to qualify an administrator
* Possible additional State inheritance taxes and Federal estate taxes
* If you have no s Civil Union , spouse, or close relatives the State may take your property
* The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes.
* It may also cause fights and lawsuits between your partner and your family
When your loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with disputes over property and Financial concerns. Careful estate planning helps take care of that.
THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL FOR UNMARRIED PERSON:
1ST: DEBTS AND TAXES
2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC
3RD: DISPOSITION TO PARTNER
4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED
5TH: CREATION OF TRUSTS FOR PARTNER
6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN
7TH: OTHER BENEFICIARIES UNDER 21
8TH: EXECUTORS
9TH: TRUSTEES
10TH: GUARDIANS OF CHILDREN
11TH: NO SURETY OR BOND REQUIRED
12TH: POWERS
13TH: SELF PROVING WILL
14TH: PRINCIPAL AND INCOME
15TH: NO ASSIGNMENT OF BEQUESTS
16TH: GENDER
17TH: CONSTRUCTION OF WILL
18TH: NO CONTEST CLAUSE
A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.
WHY PERIODIC REVIEW IS ESSENTIAL
Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:
* Domestic Partnership, Marriage, death, birth, divorce or separation affecting people named in your Will
*Significant changes in the value of your total assets or in any particular assets which you own
* Changes in your relationships
* A change in your State domicile
* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving
*Annual changes in tax law
MAY I CHANGE MY WILL?
Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate.
Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared by an attorney or a Codicil prepared by an attorney signed to legally change portions of the Will.
SAVE MONEY
Probate in New Jersey is not difficult. Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. When you meet with your attorney to draft a Will, you may also learn ideas to reduce death taxes and other expenses. Don’t pinch pennies now to the detriment of your Partner and beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate. Because the matters covered are complicated and the Federal and New Jersey laws frequently change, this article can only outline some of the many legal issues you should consider.
The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.
A properly drawn Simple Will without Trust costs approximately $300.00 to $600.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have.
Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.
WHAT IS A WILL?
“A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed. You should remember that the term “property” under the law includes "real estate as well as other possessions and rights to receive money or items of value.” Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.
ADMINISTRATION OF AN ESTATE
If you are named the executor or executrix, you must visit the County Surrogate to probate the Will. You will need the following items:
1. The Death Certificate
2. The Original Will
3. Names and Addresses of decedent's next of kin and will beneficiaries
4. Minimum of $100.00 for Surrogate fees
A state inheritance tax return must be filed and the tax paid on the transfer of real or personal property within eight months after death.
OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY
-Power of Attorney- to allow your partner or another person to administer your assets during your lifetime, either upon disability or now
-Living Wills/ Advance Directive- to state your wishes concerning medical care in the event of your serious illness and to allow your partner or another person to make medical decisions.
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays.
Reasons to have a Power of Attorney
What are these powers 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. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.
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 live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the "new" NJ Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now.
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 a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical 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. In addition, the domestic partner can be challenged in a guardianship by the incapacitated person's family members.
Advance preparation of the Power of Attorney could avoid the inconvenience and expense of 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 usually too late.
The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:
1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.
2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances.
3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.
4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.
5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.
6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions.
7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.
You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.
Gay and Lesbians- Living Will/ Advance Directives
Planning Ahead For Your Health Care:
Compiled by Kenneth Vercammen
In the absence of a Living Will or other legal arrangement if you become disabled, your partner generally has no say regarding medical care or life support. Your partner cannot access your assets. Your partner cannot receive information on your medical status or medical care. Advance directives are very personal documents and you should feel free to develop one which best suits your own needs.
All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. If you have a Living Will, you can designate your partner as a decision maker.
WHY LIVING WILLS
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.
States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS
In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.
HEALTH CARE REPRESENTATIVE
The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.
WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE
An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity, and shall be made a part of the patient's medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.
As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.
But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we can't make them for ourselves? If we can't make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?
Living Will:
By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.
After all, if you are seriously ill or injured and can't make decisions for yourself someone will have to decide about your medical care. Doesn't it make sense to
• Have your partner or another person you trust make decisions for you,
• Provide instructions about the treatment you do and do not want, or
• Both appoint a person to make decisions and provide them with instructions.
About Kenneth Vercammen
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on Probate, personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Wills and Estate Administration
WILLS -- WHY EVERYONE SHOULD MAKE ONE
Contact the Law Office of KENNETH A VERCAMMEN for Legal Representation Wills and Estate Administration
Transfer of an estate to an individual's heirs after his death may be an orderly or thoroughly disorganized process. It depends on a four-letter word -- WILL. Every person, eighteen (18) years of age or over should make one. This important document is a legal declaration of the way an individual wants his property distributed. Whether the estate is large or small, it is desirable to transfer what you own with a properly executed will -- whether you are a man or woman, married or single. Those without wills may leave their survivors in financial insecurity or downright frustration. It is to the advantage of both the individual and his family or his close friends that he execute a will. Contrary to general opinion, frequently the smaller amounts involved, the greater trouble when there is no will. Squabbles over a few thousand dollars an be more bitter than fights over many thousands.
Information below from the website of the COUNTY OF CUMBERLAND STATE OF NEW JERSEY SURROGATE'S COURT
YOUR WILL -- A BLUEPRINT FOR THE FUTURE
Making a will in an important step in your financial management program. To save your heirs time and money, plan now for the orderly transfer of your property. In this way the cost of a bond and possible disagreement among those who are to receive your property may be avoided. You decide to whom, when, and in what amounts your assets should go. You select your executor or personal representative, the one who shall be responsible for the disposition of the estate. You may avoid forced sale of your property, or costly and tedious applications to courts for the right to sell it. You have greater assurance that your plans will be carried out as you desire. One way to guarantee trouble to a family is not to make a will. Court records bulge with tragic tales of families torn apart and caused immeasurable pain and financial expense because the income producer did not do so. Without a will your estate must be distributed according to the intestate laws, the provisions of which are general and inflexible. The law will say show shall administer your estate, among whom, and how it shall be divided. By losing the privilege of naming your executor or personal representative, you may make a costly mistake. Your property may not be distributed as you wish, and thus cause hardship for those you want to safeguard most. Without a will you lose the privilege of naming a guardian for your minor children. This is vital, particularly if your spouse should not survive you. If you leave no immediate family, failure to leave a will may result in your property going to persons in whom you have no particular interest. Wills are not do-it-yourself projects. Secure the services of an attorney. Although many prepared without legal aid have been successfully executed, the risk is too great. A minor detail may invalidate your good intentions.
STEPS IN PREPARING YOUR WILL
A document that will stand up in court, if necessary, and be tailor-made to meet the needs of your family, must first be thought out carefully by you, and then skillfully prepared by a lawyer who specializes in will drafting and estate planning. He can guide you to the best decisions -- but only after obtaining all the facts that you alone can give. Thus, you can be sure that your will is properly phrased, witnessed, and has all the technicalities observed. It is penny-wise and pound- foolish not to pay a lawyer's fee for this service. The charge will depend on the size and character of the estate and the work involved. Here are some points to know when making a will:
You don't need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.
You can change it at any time you wish, as your assets, beneficiaries or desires change.
Your will is not recorded before death; no one need know of it if that is your wish.
The existence of the will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.
Start by making a list of everything you own and all you owe -- a statement that will show exactly where you stand financially. Decide to whom you will lave your real and personal property. Do it systematically. Be certain you have stated just what your wishes are by making a list of the persons involved, their relationship to you, your objectives, when their bequest is to be given, and how it is to be provided -- through a trust fund, life insurance trust, etc., and the source of the funds, whether from the general estate or proceeds of insurance policies. Take this list to the lawyer who is counseling with you. Select an executor, executrix or personal representative to administer the will. This may be the beneficiary who will inherit the bulk of your estate, a member of the family, your legal or financial advisor, a trusted friend or business associate. You should name a contingent executor or personal representative to act in case your first selection dies before you, or is unable to serve. A bank can act as executor, personal representative, trustee under a trust, or guardian of either a minor or an incompetent person. A bank is experienced and familiar with accounting and management details. It is financially responsible and a continuing institution -- an individual may die, but a bank has continued life. In selecting your executor or personal representative and trustee, the choice should be made with great care. The decision should be businesslike, not sentimental. While sentiment and friendship cause some people to name members of the family or close friends, remember that your executor or personal representative has the important responsibility of settling your estate and seeing that the wishes expressed are faithfully carried out. Here are a few of things an executor or personal representative must do, in addition to seeing that the will is offered for probate:
Qualify as executor, (also known as Personal Representative), obtain certificate of authority, and if necessary, execute a bond.
Locate and take possession of all property, discover and assert all rights and line up claims owned by the estate.
Prepare and file an inventory of all property and interest of any kind belonging to the estate, listing the appraised value.
Review all assets, liquidating those of doubtful character.
Advertise for claims and pay them in the order cited by law.
Collect monies due the estate.
Figure and pay taxes.
Pay legacies under the will.
Distribute the estate.
Make final accounting to the court.
It is important that you name a guardian if you have minor children. When you consult the attorney, ask for a rough draft of your will and study it carefully before signing the final copy.
KEEPING YOUR WILL UP TO DATE
Periodically review your will to keep it up to date. Keeping it current is just as important as making one in the first place. Changes in your life such as marriage, birth of child, death, crippling accident, change of witnesses, purchase or sale of property, a change in your financial status -- or a change in the estate law may make important revisions or a new will advisable. A will drawn in another state can be valid; however, revisions in relation to New Jersey laws may be prudent. You are free to change it any time, but do it correctly.
HOW TO CHANGE YOUR WILL
The safe way to change a will is to have a new one drawn; however, a codicil may be effective. A codicil is a separate document used to make minor changes. It must be signed with the same formality as the will itself. It is not necessary to have the same witnesses on the codicil and the original will; however, both sets of witnesses must prove the will. Do not try to change your will by drawing lines through items, erasing, writing over or adding notations. This may destroy it as a legal document. Information compliments of Cumberland Surrogate.
INTESTATE SUCCESSION
When no will exists, the statutes of New Jersey provide for the distribution of property to heirs, that is, by intestate succession. HOW WILL YOUR PROPERTY BE DIVIDED IF YOU HAVE NO WILL? THE CHART BELOW SHOWS HOW AN ESTATE IS DISTRIBUTED IN NEW JERSEY IF YOU DO NOT LEAVE A WILL. If you die without leaving a Will and are a resident of New Jersey, the State law provides the manner for distributing your property. Your net estate remaining after deduction of debts, taxes, family exemptions, etc., would be distributed under the Statutes governing Decedent's Estates and, in the case of most common occurrence, the heirs who would receive such property are as follows: Property owned jointly be husband and wife is automatically owned by the survivor. The following charts show the distribution of separately owned property. (Effective September 1, 1978) If You Die Leaving: Wife or Husband and Child or Children (also of Survivor) Or their Descendants Wife or Husband receives $50,000 plus one-half of balance Child or Children receive one-half of balance divided equally Grandchildren take their deceased parent's share unless all children be deceased, then all grandchildren share equally.
APPOINTMENT OF ADMINISTRATOR OR PERSONAL REPRESENTATIVES
When there is no will, an administrator, administratrix or personal representative is appointed by the court. Any close relative may be appointed. For an individual or a bank to be appointed administrator or personal representative, all other heirs must renounce their right. A surety bond must be furnished by paying a premium to a surety company for signing his or her bond. In the case of spouse, the need for a surety bond is waived if the surviving spouse is the sole inheritor of the estate not exceeding $50,000.00. If the estate is over $50,000.00 a bond must be provided for the amount over $50,000.00. The county surrogate grants letters of administration showing the authority to act. Information compliments of Cumberland Surrogate.
HOW A WILL IS PROBATED
Upon the death of the testator or testatrix, the will is probated. 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 resides at the time of death. The executor, executrix or personal representative is appointed by going to the Surrogate Court with the will, a death certificate, and one of the witnesses. If the "attestation" clause (where the witnesses sign) is properly worded, only one of the witnesses need be present when a will is probated. If the attestation clause is not correct, both witnesses must be present. If both witnesses are dead, and there is one attestation clause, the will can be probated by proving their signatures. If they have moved away, the surrogate can appoint a commissioner where the witnesses reside to take their testimony. If an Affidavit of Testator and witnesses is acknowledged by a Notary Public, the witnesses need not appear at the time of probate.
NOTICE TO CREDITORS TO PRESENT CLAIMS
When a NOTICE TO CREDITORS is published, the executor/trix, administrator/trix shall mail a copy of the NOTICE TO CREDITORS to each creditor of the estate of which the personal representative knows or which can be ascertained by reasonable inquiry, by ordinary mail to the creditor's last known address.
TAXES THAT INFLUENCE YOUR WILL
Three kinds of taxes can influence the provisions of your will: inheritance, estate and gift. An inheritance by will, by law, by surviving joint owner, or from life insurance is not income and is not subject to income tax.
New Jersey Inheritance Tax Inheritance Tax is a tax payable by an heir or beneficiary for the right to acquire the property of a deceased person or to receive a gift in anticipation of death. The tax is determined by the amount inherited and by the relationship of the individual to the deceased. In New Jersey, no one is taxed for receiving property, including money, worth up to $499.99.
Inheritance Tax Rates Spouses: All property passing to a spouse from a deceased spouse who died since January 1, 1985 is free of New Jersey inheritance tax. Forms for proving the exemption on checking accounts, savings accounts, Certificates of Deposit, etc. may be obtained from the institution holding the funds. Parents, grandparents, children, grandchildren, adopted children, or stepchildren: The first $50,000.00 is exempt where the decedent died between July 1, 1985 and July 1, 1986. The exemption is raised to $150,000.00 for decedents dying between July 1, 1986 and July 1, 1987; to $250,000.00 for decedents dying between July 1, 1987 and July 1, 1988. After July 1, 1988 all property passing to such persons is exempt. Brother, sister, daughter-in-law, or son-in-law: If the inheritance is $500.00 or more, the tax is 11 percent of the entire amount up to $1,100,000.00 and increases gradually thereafter. For persons dying after July 1, 1988 the exemption is $25,000.00. Every other beneficiary pays 15 percent on the total amount up to $700,000.00. Tax is 16 percent on remainder. Charitable, religious, or benevolent institutions: Each beneficiary in this class is tax exempt entirely. Money or property left the State of New Jersey, a municipality, or a nonprofit educational institution is exempt from inheritance tax.
Filing New Jersey Inheritance Tax Returns A substantial number of estates remain taxable and even some on which no tax is due require the filing of a New Jersey Inheritance Tax Return. Tax forms and instructions are furnished by the District Supervisor of the Transfer Inheritance Tax Bureau in the county where the decedent (a deceased person) resided at the time of death. The Executor, administrator or a personal representative files the completed inheritance tax return with the District Supervisor of the Transfer Inheritance Tax Bureau.
Clearing Title and Transferring Property For those estates that are taxable, unpaid inheritance taxes are a lien on New Jersey real estate and shares and stocks of corporations and financial institutions organized under laws of New Jersey. If there is no tax, the Transfer Inheritance Tax Bureau sends waivers that are required to clear title to the land and transfer ownership of bank accounts or securities.
If there is a tax, a bill is submitted and the waivers sent when the tax is paid. To clear title to real property, a waiver is 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 in the estate of the one first dying. To transfer stocks, shares, and securities of financial institutions and New Jersey corporations, the executor, administrator or personal representative sends waivers to them when asking transfer.
Inheritance tax returns must be filed and the tax paid within 8 months after decedent's death to avoid interest, charged at the rate of 10 percent per year. Although the interest penalty cannot be waived beyond this 8-month period, the time for filing may be extended on application to the bureau. This tax information is general and may not apply to each estate; therefore, it is advised that the inheritance tax supervisor be contacted for further information before the estate is settled.
Gift Tax New Jersey does not levy a tax on gifts, except in anticipation of death. Any gift made within 3 years of death is presumed to be in anticipation of death and may be subject to New Jersey Inheritance tax. An individual may give an amount up to $10,000 to any one person during the calendar year, exempt from tax. A married couple can give up to $20,000 to a person yearly without tax. Any number of tax- free gifts may be made during the year. If you make gifts to one person of more than $10,000 during the calendar year, file a Federal Gift Tax Return with the District Director of Internal Revenue. Gifts between husband and wife are exempt from Federal Gift Tax. Federal Marital Deductions An unlimited amount of real and personal property can be transferred between spouses without Federal Estate Tax. For proper application of the marital deduction, contact your attorney or trust officer at your bank.
SELF PROVING WILLS RECOMMENDED USE SELF PROVING WILLS TO SPEED UP PROBATE
Prior to 1978, New Jersey Probate Rules required one of the two witnesses to a will to travel and appear in the surrogate¹s office and sign a paper to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper.
In 1978, the New Jersey Legislature passed a law to create a new type of will called a ³Self-Proving Will.² In such a will, the person for whom the will is made will sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the will is self proving. When done properly, the execution will not have to locate any witnesses. This usually saves time and money. If your will is not ³self-proving² or if you are unsure, schedule an appointment with an elder law attorney.
GLOSSARY
Administrator, Administratrix (also known as Personal Representative) -- Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
Beneficiary -- Person named to receive property or benefits.
Codicil -- An addition or supplement made to change or add provisions to a will.
Contingent beneficiary -- Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
Contract -- Legally enforceable agreement.
Decedent -- A deceased person.
Devise -- To give real or Personal Property.
Estate -- Everything a person owns, all real and personal property owned.
Executor, Executrix (also known as Personal Representative) -- A person or institution named in the will to carry out the provisions and directions of the will.
Intestate -- A person who dies without making a valid will.
Legatee -- Person who receives personal property under a will.
Levied -- To collect by assessment.
Lien -- A charge upon property, real or personal, for the satisfaction of a debt.
Personal property -- Intangible property, such as stocks, bonds, or bank accounts; and tangible property such as Furniture, Automobile, and Jewelry.
Probate -- Official proof of the genuineness of a will.
Real property -- Land and buildings.
Surrogate -- A judicial officer who has jurisdiction over the probate of wills in the absence of a contest and acts as the Clerk of the Probate
Court in the settlement of estates, guardianships, and trusts.
Tenants in common -- Two or more persons owning individual interests in property.
Testator, Testatrix -- The person who makes a will.
Trust -- Property owned and managed by one person for the benefit of another.
Trustee -- Person or institution holding property in trust.
Waiver -- A legal instrument relinquishing a right or lien.
Will -- A legal declaration of the manner in which a person wishes his
estate divided after death.
Witness -- Person who observes the signing of a will and also attests to
the signatures.
Part of the above information from the website of the Surrogate of Cumberland County.
Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
732-572-0500
GLOSSARY
Administrator, Administratrix (also known as Personal Representative) -- Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
Beneficiary -- Person named to receive property or benefits.
Codicil -- An addition or supplement made to change or add provisions to a will.
Contingent beneficiary -- Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
Contract -- Legally enforceable agreement.
Decedent -- A deceased person.
Devise -- To give real or Personal Property.
Estate -- Everything a person owns, all real and personal property owned.
Executor, Executrix (also known as Personal Representative) -- A person or institution named in the will to carry out the provisions and directions of the will.
Intestate -- A person who dies without making a valid will.
Legatee -- Person who receives personal property under a will.
Levied -- To collect by assessment.
Lien -- A charge upon property, real or personal, for the satisfaction of a debt.
Personal property -- Intangible property, such as stocks, bonds, or bank accounts; and tangible property such as Furniture, Automobile, and Jewelry.
Probate -- Official proof of the genuineness of a will.
Real property -- Land and buildings.
Surrogate -- A judicial officer who has jurisdiction over the probate of wills in the absence of a contest and acts as the Clerk of the Probate
Court in the settlement of estates, guardianships, and trusts.
Tenants in common -- Two or more persons owning individual interests in property.
Testator, Testatrix -- The person who makes a will.
Trust -- Property owned and managed by one person for the benefit of another.
Trustee -- Person or institution holding property in trust.
Waiver -- A legal instrument relinquishing a right or lien.
Will -- A legal declaration of the manner in which a person wishes his
estate divided after death.
Witness -- Person who observes the signing of a will and also attests to
the signatures.
This Page Provided Courtesy Of Harry A. Freitag, Jr.,Surrogate of Cumberland County.
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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week for litigation and contested Probate hearings.
Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues 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 is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.
He established the NJlaws website www.njlaws.com which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.
RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 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 1999-2005
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; Temple Beth Or 2002;
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
BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
Improving Your Elder Law & Estate Practice San Francisco, CA 2007
Elder Law and Estate Planning- ABA Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need ABA Hawaii 2006
Marketing Success Stories ABA Toronto 1998
Opening a Business-Sayreville Adult School 1997,1996,1995
Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
Contact the Law Office of KENNETH A VERCAMMEN for Legal Representation Wills and Estate Administration
Transfer of an estate to an individual's heirs after his death may be an orderly or thoroughly disorganized process. It depends on a four-letter word -- WILL. Every person, eighteen (18) years of age or over should make one. This important document is a legal declaration of the way an individual wants his property distributed. Whether the estate is large or small, it is desirable to transfer what you own with a properly executed will -- whether you are a man or woman, married or single. Those without wills may leave their survivors in financial insecurity or downright frustration. It is to the advantage of both the individual and his family or his close friends that he execute a will. Contrary to general opinion, frequently the smaller amounts involved, the greater trouble when there is no will. Squabbles over a few thousand dollars an be more bitter than fights over many thousands.
Information below from the website of the COUNTY OF CUMBERLAND STATE OF NEW JERSEY SURROGATE'S COURT
YOUR WILL -- A BLUEPRINT FOR THE FUTURE
Making a will in an important step in your financial management program. To save your heirs time and money, plan now for the orderly transfer of your property. In this way the cost of a bond and possible disagreement among those who are to receive your property may be avoided. You decide to whom, when, and in what amounts your assets should go. You select your executor or personal representative, the one who shall be responsible for the disposition of the estate. You may avoid forced sale of your property, or costly and tedious applications to courts for the right to sell it. You have greater assurance that your plans will be carried out as you desire. One way to guarantee trouble to a family is not to make a will. Court records bulge with tragic tales of families torn apart and caused immeasurable pain and financial expense because the income producer did not do so. Without a will your estate must be distributed according to the intestate laws, the provisions of which are general and inflexible. The law will say show shall administer your estate, among whom, and how it shall be divided. By losing the privilege of naming your executor or personal representative, you may make a costly mistake. Your property may not be distributed as you wish, and thus cause hardship for those you want to safeguard most. Without a will you lose the privilege of naming a guardian for your minor children. This is vital, particularly if your spouse should not survive you. If you leave no immediate family, failure to leave a will may result in your property going to persons in whom you have no particular interest. Wills are not do-it-yourself projects. Secure the services of an attorney. Although many prepared without legal aid have been successfully executed, the risk is too great. A minor detail may invalidate your good intentions.
STEPS IN PREPARING YOUR WILL
A document that will stand up in court, if necessary, and be tailor-made to meet the needs of your family, must first be thought out carefully by you, and then skillfully prepared by a lawyer who specializes in will drafting and estate planning. He can guide you to the best decisions -- but only after obtaining all the facts that you alone can give. Thus, you can be sure that your will is properly phrased, witnessed, and has all the technicalities observed. It is penny-wise and pound- foolish not to pay a lawyer's fee for this service. The charge will depend on the size and character of the estate and the work involved. Here are some points to know when making a will:
You don't need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.
You can change it at any time you wish, as your assets, beneficiaries or desires change.
Your will is not recorded before death; no one need know of it if that is your wish.
The existence of the will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.
Start by making a list of everything you own and all you owe -- a statement that will show exactly where you stand financially. Decide to whom you will lave your real and personal property. Do it systematically. Be certain you have stated just what your wishes are by making a list of the persons involved, their relationship to you, your objectives, when their bequest is to be given, and how it is to be provided -- through a trust fund, life insurance trust, etc., and the source of the funds, whether from the general estate or proceeds of insurance policies. Take this list to the lawyer who is counseling with you. Select an executor, executrix or personal representative to administer the will. This may be the beneficiary who will inherit the bulk of your estate, a member of the family, your legal or financial advisor, a trusted friend or business associate. You should name a contingent executor or personal representative to act in case your first selection dies before you, or is unable to serve. A bank can act as executor, personal representative, trustee under a trust, or guardian of either a minor or an incompetent person. A bank is experienced and familiar with accounting and management details. It is financially responsible and a continuing institution -- an individual may die, but a bank has continued life. In selecting your executor or personal representative and trustee, the choice should be made with great care. The decision should be businesslike, not sentimental. While sentiment and friendship cause some people to name members of the family or close friends, remember that your executor or personal representative has the important responsibility of settling your estate and seeing that the wishes expressed are faithfully carried out. Here are a few of things an executor or personal representative must do, in addition to seeing that the will is offered for probate:
Qualify as executor, (also known as Personal Representative), obtain certificate of authority, and if necessary, execute a bond.
Locate and take possession of all property, discover and assert all rights and line up claims owned by the estate.
Prepare and file an inventory of all property and interest of any kind belonging to the estate, listing the appraised value.
Review all assets, liquidating those of doubtful character.
Advertise for claims and pay them in the order cited by law.
Collect monies due the estate.
Figure and pay taxes.
Pay legacies under the will.
Distribute the estate.
Make final accounting to the court.
It is important that you name a guardian if you have minor children. When you consult the attorney, ask for a rough draft of your will and study it carefully before signing the final copy.
KEEPING YOUR WILL UP TO DATE
Periodically review your will to keep it up to date. Keeping it current is just as important as making one in the first place. Changes in your life such as marriage, birth of child, death, crippling accident, change of witnesses, purchase or sale of property, a change in your financial status -- or a change in the estate law may make important revisions or a new will advisable. A will drawn in another state can be valid; however, revisions in relation to New Jersey laws may be prudent. You are free to change it any time, but do it correctly.
HOW TO CHANGE YOUR WILL
The safe way to change a will is to have a new one drawn; however, a codicil may be effective. A codicil is a separate document used to make minor changes. It must be signed with the same formality as the will itself. It is not necessary to have the same witnesses on the codicil and the original will; however, both sets of witnesses must prove the will. Do not try to change your will by drawing lines through items, erasing, writing over or adding notations. This may destroy it as a legal document. Information compliments of Cumberland Surrogate.
INTESTATE SUCCESSION
When no will exists, the statutes of New Jersey provide for the distribution of property to heirs, that is, by intestate succession. HOW WILL YOUR PROPERTY BE DIVIDED IF YOU HAVE NO WILL? THE CHART BELOW SHOWS HOW AN ESTATE IS DISTRIBUTED IN NEW JERSEY IF YOU DO NOT LEAVE A WILL. If you die without leaving a Will and are a resident of New Jersey, the State law provides the manner for distributing your property. Your net estate remaining after deduction of debts, taxes, family exemptions, etc., would be distributed under the Statutes governing Decedent's Estates and, in the case of most common occurrence, the heirs who would receive such property are as follows: Property owned jointly be husband and wife is automatically owned by the survivor. The following charts show the distribution of separately owned property. (Effective September 1, 1978) If You Die Leaving: Wife or Husband and Child or Children (also of Survivor) Or their Descendants Wife or Husband receives $50,000 plus one-half of balance Child or Children receive one-half of balance divided equally Grandchildren take their deceased parent's share unless all children be deceased, then all grandchildren share equally.
APPOINTMENT OF ADMINISTRATOR OR PERSONAL REPRESENTATIVES
When there is no will, an administrator, administratrix or personal representative is appointed by the court. Any close relative may be appointed. For an individual or a bank to be appointed administrator or personal representative, all other heirs must renounce their right. A surety bond must be furnished by paying a premium to a surety company for signing his or her bond. In the case of spouse, the need for a surety bond is waived if the surviving spouse is the sole inheritor of the estate not exceeding $50,000.00. If the estate is over $50,000.00 a bond must be provided for the amount over $50,000.00. The county surrogate grants letters of administration showing the authority to act. Information compliments of Cumberland Surrogate.
HOW A WILL IS PROBATED
Upon the death of the testator or testatrix, the will is probated. 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 resides at the time of death. The executor, executrix or personal representative is appointed by going to the Surrogate Court with the will, a death certificate, and one of the witnesses. If the "attestation" clause (where the witnesses sign) is properly worded, only one of the witnesses need be present when a will is probated. If the attestation clause is not correct, both witnesses must be present. If both witnesses are dead, and there is one attestation clause, the will can be probated by proving their signatures. If they have moved away, the surrogate can appoint a commissioner where the witnesses reside to take their testimony. If an Affidavit of Testator and witnesses is acknowledged by a Notary Public, the witnesses need not appear at the time of probate.
NOTICE TO CREDITORS TO PRESENT CLAIMS
When a NOTICE TO CREDITORS is published, the executor/trix, administrator/trix shall mail a copy of the NOTICE TO CREDITORS to each creditor of the estate of which the personal representative knows or which can be ascertained by reasonable inquiry, by ordinary mail to the creditor's last known address.
TAXES THAT INFLUENCE YOUR WILL
Three kinds of taxes can influence the provisions of your will: inheritance, estate and gift. An inheritance by will, by law, by surviving joint owner, or from life insurance is not income and is not subject to income tax.
New Jersey Inheritance Tax Inheritance Tax is a tax payable by an heir or beneficiary for the right to acquire the property of a deceased person or to receive a gift in anticipation of death. The tax is determined by the amount inherited and by the relationship of the individual to the deceased. In New Jersey, no one is taxed for receiving property, including money, worth up to $499.99.
Inheritance Tax Rates Spouses: All property passing to a spouse from a deceased spouse who died since January 1, 1985 is free of New Jersey inheritance tax. Forms for proving the exemption on checking accounts, savings accounts, Certificates of Deposit, etc. may be obtained from the institution holding the funds. Parents, grandparents, children, grandchildren, adopted children, or stepchildren: The first $50,000.00 is exempt where the decedent died between July 1, 1985 and July 1, 1986. The exemption is raised to $150,000.00 for decedents dying between July 1, 1986 and July 1, 1987; to $250,000.00 for decedents dying between July 1, 1987 and July 1, 1988. After July 1, 1988 all property passing to such persons is exempt. Brother, sister, daughter-in-law, or son-in-law: If the inheritance is $500.00 or more, the tax is 11 percent of the entire amount up to $1,100,000.00 and increases gradually thereafter. For persons dying after July 1, 1988 the exemption is $25,000.00. Every other beneficiary pays 15 percent on the total amount up to $700,000.00. Tax is 16 percent on remainder. Charitable, religious, or benevolent institutions: Each beneficiary in this class is tax exempt entirely. Money or property left the State of New Jersey, a municipality, or a nonprofit educational institution is exempt from inheritance tax.
Filing New Jersey Inheritance Tax Returns A substantial number of estates remain taxable and even some on which no tax is due require the filing of a New Jersey Inheritance Tax Return. Tax forms and instructions are furnished by the District Supervisor of the Transfer Inheritance Tax Bureau in the county where the decedent (a deceased person) resided at the time of death. The Executor, administrator or a personal representative files the completed inheritance tax return with the District Supervisor of the Transfer Inheritance Tax Bureau.
Clearing Title and Transferring Property For those estates that are taxable, unpaid inheritance taxes are a lien on New Jersey real estate and shares and stocks of corporations and financial institutions organized under laws of New Jersey. If there is no tax, the Transfer Inheritance Tax Bureau sends waivers that are required to clear title to the land and transfer ownership of bank accounts or securities.
If there is a tax, a bill is submitted and the waivers sent when the tax is paid. To clear title to real property, a waiver is 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 in the estate of the one first dying. To transfer stocks, shares, and securities of financial institutions and New Jersey corporations, the executor, administrator or personal representative sends waivers to them when asking transfer.
Inheritance tax returns must be filed and the tax paid within 8 months after decedent's death to avoid interest, charged at the rate of 10 percent per year. Although the interest penalty cannot be waived beyond this 8-month period, the time for filing may be extended on application to the bureau. This tax information is general and may not apply to each estate; therefore, it is advised that the inheritance tax supervisor be contacted for further information before the estate is settled.
Gift Tax New Jersey does not levy a tax on gifts, except in anticipation of death. Any gift made within 3 years of death is presumed to be in anticipation of death and may be subject to New Jersey Inheritance tax. An individual may give an amount up to $10,000 to any one person during the calendar year, exempt from tax. A married couple can give up to $20,000 to a person yearly without tax. Any number of tax- free gifts may be made during the year. If you make gifts to one person of more than $10,000 during the calendar year, file a Federal Gift Tax Return with the District Director of Internal Revenue. Gifts between husband and wife are exempt from Federal Gift Tax. Federal Marital Deductions An unlimited amount of real and personal property can be transferred between spouses without Federal Estate Tax. For proper application of the marital deduction, contact your attorney or trust officer at your bank.
SELF PROVING WILLS RECOMMENDED USE SELF PROVING WILLS TO SPEED UP PROBATE
Prior to 1978, New Jersey Probate Rules required one of the two witnesses to a will to travel and appear in the surrogate¹s office and sign a paper to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper.
In 1978, the New Jersey Legislature passed a law to create a new type of will called a ³Self-Proving Will.² In such a will, the person for whom the will is made will sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the will is self proving. When done properly, the execution will not have to locate any witnesses. This usually saves time and money. If your will is not ³self-proving² or if you are unsure, schedule an appointment with an elder law attorney.
GLOSSARY
Administrator, Administratrix (also known as Personal Representative) -- Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
Beneficiary -- Person named to receive property or benefits.
Codicil -- An addition or supplement made to change or add provisions to a will.
Contingent beneficiary -- Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
Contract -- Legally enforceable agreement.
Decedent -- A deceased person.
Devise -- To give real or Personal Property.
Estate -- Everything a person owns, all real and personal property owned.
Executor, Executrix (also known as Personal Representative) -- A person or institution named in the will to carry out the provisions and directions of the will.
Intestate -- A person who dies without making a valid will.
Legatee -- Person who receives personal property under a will.
Levied -- To collect by assessment.
Lien -- A charge upon property, real or personal, for the satisfaction of a debt.
Personal property -- Intangible property, such as stocks, bonds, or bank accounts; and tangible property such as Furniture, Automobile, and Jewelry.
Probate -- Official proof of the genuineness of a will.
Real property -- Land and buildings.
Surrogate -- A judicial officer who has jurisdiction over the probate of wills in the absence of a contest and acts as the Clerk of the Probate
Court in the settlement of estates, guardianships, and trusts.
Tenants in common -- Two or more persons owning individual interests in property.
Testator, Testatrix -- The person who makes a will.
Trust -- Property owned and managed by one person for the benefit of another.
Trustee -- Person or institution holding property in trust.
Waiver -- A legal instrument relinquishing a right or lien.
Will -- A legal declaration of the manner in which a person wishes his
estate divided after death.
Witness -- Person who observes the signing of a will and also attests to
the signatures.
Part of the above information from the website of the Surrogate of Cumberland County.
Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
732-572-0500
GLOSSARY
Administrator, Administratrix (also known as Personal Representative) -- Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
Beneficiary -- Person named to receive property or benefits.
Codicil -- An addition or supplement made to change or add provisions to a will.
Contingent beneficiary -- Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
Contract -- Legally enforceable agreement.
Decedent -- A deceased person.
Devise -- To give real or Personal Property.
Estate -- Everything a person owns, all real and personal property owned.
Executor, Executrix (also known as Personal Representative) -- A person or institution named in the will to carry out the provisions and directions of the will.
Intestate -- A person who dies without making a valid will.
Legatee -- Person who receives personal property under a will.
Levied -- To collect by assessment.
Lien -- A charge upon property, real or personal, for the satisfaction of a debt.
Personal property -- Intangible property, such as stocks, bonds, or bank accounts; and tangible property such as Furniture, Automobile, and Jewelry.
Probate -- Official proof of the genuineness of a will.
Real property -- Land and buildings.
Surrogate -- A judicial officer who has jurisdiction over the probate of wills in the absence of a contest and acts as the Clerk of the Probate
Court in the settlement of estates, guardianships, and trusts.
Tenants in common -- Two or more persons owning individual interests in property.
Testator, Testatrix -- The person who makes a will.
Trust -- Property owned and managed by one person for the benefit of another.
Trustee -- Person or institution holding property in trust.
Waiver -- A legal instrument relinquishing a right or lien.
Will -- A legal declaration of the manner in which a person wishes his
estate divided after death.
Witness -- Person who observes the signing of a will and also attests to
the signatures.
This Page Provided Courtesy Of Harry A. Freitag, Jr.,Surrogate of Cumberland County.
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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week for litigation and contested Probate hearings.
Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues 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 is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.
He established the NJlaws website www.njlaws.com which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.
RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 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 1999-2005
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; Temple Beth Or 2002;
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
BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
Improving Your Elder Law & Estate Practice San Francisco, CA 2007
Elder Law and Estate Planning- ABA Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need ABA Hawaii 2006
Marketing Success Stories ABA Toronto 1998
Opening a Business-Sayreville Adult School 1997,1996,1995
Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
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